United States District Court, E.D. Louisiana
DANIEL E. KNOWLES, III, Magistrate Judge.
Before the Court is the Motion to Enter an Amended Complaint [Doc. #32] filed by pro so plaintiff Melva Leona Vallery Also before the Court is Vallery's Asking Leave to Enter an Updated Amended Comparison Citings of Copyright Infringement of M.L. Vallery v. Mattel/American Girl. [Doc. #52]. Defendant American Girl, L.L.C. vehemently opposes both motions. Having reviewed the motions, the oppositions, and the case law, the Court rules as follows.
On July 16, 2013, current pro se plaintiff Melva Leona Vallery filed this copyright lawsuit against American Girl Dolls and Evelyn Coleman. Vallery alleges that Evelyn Coleman's novel "The Cameo Necklace: A Cecile Mystery, " published by defendant American Girl Dolls ("American Girl"), infringes on her novel, "Baba Grace and the Necklace." Attached to Vallery's complaint is a list of alleged similarities between the novels. Vallery seeks $300, 000, 000 and on-going royalties.
Ultimately, counsel for Vallery moved to dismiss all defendants without prejudice and have now withdrawn from the lawsuit. Vallery then moved to re-open the lawsuit pro se. The District Court granted the motion. In her motion to re-open, Vallery mentions two other authors and nine other works that infringe her novel, but the other two authors have not been properly added to the lawsuit. The motion to amend seeks to accomplish that goal.
II. Law and Analysis
Under Federal Rule of Civil Procedure 15, the Court "should freely give leave [to amend] when justice so requires." Fed.R.Civ.P. 15(a)(2). In deciding whether to allow amendment of the complaint, the Court must consider any "undue delay, bad faith, or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [and] futility of amendment." Foman v. Davis, 371 U.S. 178, 182 (1962); Smith v. EMC Corp., 393 F.3d 590, 595 (5th Cir. 2004).
Denying a motion to amend is not an abuse of discretion if allowing an amendment would be futile. Briggs v. Miss., 331 F.3d 499, 508 (5th Cir. 2003). An amendment is futile if it would fail to survive a Rule 12(b)(6) motion. Id. Therefore, the Court reviews the proposed amended complaint under "the same standard of legal sufficiency as applies under Rule 12(b)(6)." Stripling v. Jordan Prod. Co., L.L.C., 234 F.3d 863, 873 (5th Cir. 2000) (citation internal and quotation marks omitted).
The ultimate question under Rule 12(b)(6) is whether "in the light most favorable to the plaintiff and with every doubt resolved in [the plaintiff's] behalf, the complaint states any valid claim for relief." Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498 (5th Cir. 2000) (quotation omitted). It is well settled, however, that to state a proper cause of action, "a plaintiff must plead specific facts, not mere conclusory allegations." Id. ("[w]e will... not accept as true conclusory allegations or unwarranted deductions of fact") (quoting Tuchman v. DSC Commc'ns Corp., 14 F.3d 1061, 1067 (5th Cir. 1994)). The burden is on the plaintiff to set forth sufficient facts that, if accepted as true, would suggest that she is entitled to relief. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007); see also Taylor v. Books a Million, Inc., 296 F.3d 376, 378 (5th Cir. 2002) (explaining that "regardless of whether the plaintiff is proceeding pro se or is represented by counsel, conclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss") (quotation omitted)).
A court is generally not allowed to consider material from outside the pleadings when deciding a motion to dismiss. Fed.R.Civ.P. 12(d). However, documents that a defendant attaches to a motion to dismiss may be considered "if they are referred to in the plaintiff's complaint and are central to her claim." Causey v. Sewell Cadillac-Chevrolet, Inc., 394 F.3d 285, 288 (5th Cir. 2004) (citing Collins, 224 F.3d at 498-99). In copyright cases, the asserted and accused works are "central" to the infringement claim and thus may be considered. See, e.g., Rucker v. Harlequin Enters., Ltd., Civ. A. No. H-12-1135, 2013 WL 707922, at *1 n.1 (S. D. Tex. Feb. 26, 2013) ("Works referenced in the pleading and critical to the claims are properly considered on a Rule 12(b)(6) motion without converting it to one for summary judgment."); Randolph v. Dimension Films, 630 F.Supp.2d 741, 745 (S. D. Tex. 2009) (" Randolph I "); see also Walker v. Time Life Films, Inc., 784 F.2d 44, 52 (2d Cir. 1986) ("in copyright infringement cases the works... supersede and control contrary descriptions of them").
To state a claim for copyright infringement, a plaintiff must allege the "(1) ownership of a valid copyright and (2) unauthorized copying." Peel & Co. Inc. v. The Rug Market, 238 F.3d 391, 394 (5th Cir. 2001). As defendant recognizes, Vallery properly alleges ownership, but she has not pleaded facts that show that American Girl supposedly "copied" her "Baba Grace" work.
Copying may be established by "direct evidence of copying" or it may be "inferred from (1) proof that the defendant had access to the copyrighted work prior to creation of the infringing work and (2) probative similarity." See id. Vallery has not identified any direct evidence that would support a claim that American Girl copied her book, such as "party admissions, witness accounts of the physical act of copying, [or] common errors in the works[.]" cf. Rottlund Co. v. Pinnacle Corp., 452 F.3d 726, 732 (8th Cir. 2006) (compiling examples of "direct evidence" cases). Thus, Vallery must instead try to establish copying by offering circumstantial proof of "access" and "similarity." See id.
To allege "access, " Vallery must plead sufficient facts that, accepted as true, would permit a trier of fact to conclude that American Girl "had a reasonable opportunity to view [her] copyrighted work" before creating its own works. See id. Alleging a "bare possibility" of access will not suffice, nor can a plaintiff rely on "speculation or conjecture." See id. at 394-95; see also id. at 396-97 (discussing Ferguson v. Nat'l Broad Co., 584 F.2d 111 (5th Cir. 1978) & McGaughey v. Twentieth Century Fox Film Corp., 12 F.3d 62 (5th Cir. 1994)) (cases where "access" was not found even though plaintiffs' unpublished works were sent to some third parties). In her amended complaint, Vallery has not pleaded facts that would demonstrate that American Girl had direct access to her works.
Because she can not plead facts to show that American Girl had direct access to her works, Vallery seeks to rely on a judicial inference of "access." [Doc. #32-1 at ¶¶ 5, 31]. To infer access, however, a plaintiff must show that the protected and accused works "are so strikingly similar as to preclude the possibility of ...