Opinion
CASE NO. 20-22393-CIV-ALTONAGA/Goodman
2020-09-03
SOFTWARE BROKERS OF AMERICA, INC., Plaintiff, v. DOTICOM CORP., et al., Defendants.
Jean G. Vidal Font, Pro Hac Vice, Ferraiuoli LLC, San Juan, PR, Juan Carlos Antorcha, Rasco Klock Perez Nieto, P.L., Coral Gables, FL, for Plaintiff. Brian Howard Pollock, FairLaw Firm, Miami, FL, for Defendants.
Jean G. Vidal Font, Pro Hac Vice, Ferraiuoli LLC, San Juan, PR, Juan Carlos Antorcha, Rasco Klock Perez Nieto, P.L., Coral Gables, FL, for Plaintiff.
Brian Howard Pollock, FairLaw Firm, Miami, FL, for Defendants.
ORDER
CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE
THIS CAUSE came before the Court on Defendants, Doticom Corp. and Esteban Videla's Motion to Dismiss First Amended Complaint [ECF No. 27], filed on August 17, 2020. Plaintiff, Software Brokers of America, Inc., filed a Memorandum of Law in Opposition [ECF No. 29], to which Defendants filed a Reply [ECF No. 33]. The Court has carefully considered the First Amended Complaint ("Amended Complaint") [ECF No. 25], the parties’ written submissions, the record, and applicable law.
I. BACKGROUND
This action arises from a business relationship between the parties. (See generally Am. Compl.). Plaintiff is a Florida corporation with its principal place of business in Miami, Florida. (See id. ¶ 7). Defendant Doticom is a Florida corporation with its principal place of business in Pembroke Pines, Florida. (See id. ¶ 8). Defendant Videla is Doticom's president and "at all times relevant exercised control over Doticom." (Id. ¶ 9; see also id. ¶ 11).
Plaintiff "provides technology products as well as networking and cloud services." (Id. ¶ 12). Doticom is "an IT distributor" that exports "IT products" to Latin American retailers. (Id. ¶ 10). In October 2014, Doticom requested to purchase goods from Plaintiff for distribution across Latin America. (See id. ¶ 13). Plaintiff "provided such services and invoiced Doticom for said services." (Id. ¶ 14). As part of the purchase orders, Defendants were required to provide payment for the goods within 60 days after shipment. (See id. ). Plaintiff also extended Doticom a line of credit. (See id. ).
Later, Videla entered into a yearlong independent contractor agreement with Plaintiff. (See id. ¶ 15). During the time when the agreement was in place, Videla "gained knowledge of the products sold or distributed by [Plaintiff]; as well as access to internal documents belonging to [Plaintiff], including confidential presentations and materials which would later be used by Doticom without authorization." (Id. (alterations added)). According to Plaintiff, "once Defendants gained knowledge of the goods or products sold by [Plaintiff] and the manner in which these products were marketed or promoted, Defendants decided to stop making payments that were due; and began to promote these same products on Doticom's website by making use of [Plaintiff's] copyrighted work[.]" (Id. ¶ 17 (alterations added)).
Specifically, on March 25, 2019, Doticom failed to provide payments due for orders placed on January 24, 2019 and accrued an outstanding debt with Plaintiff in the amount of $456,657.95 plus late fees. (See id. ¶ 18). Moreover, Plaintiff's "original content relating to a Power Point presentation entitled ‘Accessories sell Out Strategy’ that describes [Plaintiff's] products, services and/or business strategies" was reproduced on Doticom's website without authorization. (Id. ¶ 23 (alteration added)). Plaintiff includes a comparison of its work and the image on Doticom's website. (See id. ¶ 24).
According to Plaintiff, Videla, "as president of Doticom and during his time as an independent contractor of [Plaintiff], had access to and knowledge of" Plaintiff's work. (Id. ¶ 25 (alteration added)). "Defendants’ violation of [Plaintiff's] copyright was done, in part, to promote the goods or products it [sic] acquired via purchase orders from [Plaintiff]." (Id. ¶ 26 (alterations added)).
On September 20, 2019, Plaintiff's counsel sent a letter to Defendants requesting they cease and desist any unauthorized use of Plaintiff's work and notifying Defendants of the outstanding debt. (See id. ¶ 27). On November 14, 2019, Plaintiff registered the copyright in and to its work with the U.S. Copyright Office. (See id. ¶ 28).
Plaintiff brings three claims in the Amended Complaint. In Counts I and II, Plaintiff asserts state-law claims for open account and account stated, respectively, against Doticom for its failure to pay the outstanding debt. (See id. ¶¶ 29–39). In Count III, Plaintiff states a claim of copyright infringement under the Copyright Act of 1976 against both Defendants for the unauthorized reproduction of Plaintiff's work on Doticom's website. (See id. ¶¶ 40–50). According to Plaintiff, each of the Defendants obtained direct and indirect profits from the alleged infringement. (See id. ¶ 50). Plaintiff alleges the Court has subject matter jurisdiction over the copyright claim under 28 U.S.C. sections 1331 and 1338(a) and supplemental jurisdiction over the state claims under 28 U.S.C. section 1367. (See id. ¶ 4).
Defendants seek dismissal of the Amended Complaint under Federal Rule of Civil Procedure 12 for lack of supplemental jurisdiction and failure to state claims for relief. (See generally Mot.).
II. STANDARDS
A. Federal Rule of Civil Procedure 12(b)(1)
Subject matter jurisdiction must be established before a case can proceed on the merits. See Steel Co. v. Citizens for a Better Env't , 523 U.S. 83, 93–95, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998). This is because "[f]ederal courts are courts of limited jurisdiction." Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (alteration added). It is presumed that a federal court lacks jurisdiction in a case until the plaintiff demonstrates the court has jurisdiction over the subject matter. See id. (citing Turner v. Bank of N. Am. , 4 U.S. 8, 11, 4 Dall. 8, 1 L.Ed. 718 (1799) ; McNutt v. Gen. Motors Acceptance Corp. of Ind. , 298 U.S. 178, 182–83, 56 S.Ct. 780, 80 L.Ed. 1135 (1936) ). "[B]ecause a federal court is powerless to act beyond its statutory grant of subject matter jurisdiction, a court must zealously insure that jurisdiction exists over a case ...." Smith v. GTE Corp. , 236 F.3d 1292, 1299 (11th Cir. 2001) (alterations added; citations omitted).
A defendant may attack subject matter jurisdiction under Rule 12(b)(1) in two ways — a facial attack or factual attack. See Menchaca v. Chrysler Credit Corp. , 613 F.2d 507, 511 (5th Cir. 1980). A facial attack asserts a plaintiff has failed to allege a basis for subject matter jurisdiction in the complaint. See id. In a facial attack, the plaintiff's allegations are taken as true for the purposes of the motion, see id. ; and the plaintiff is afforded safeguards like those provided in challenging a Rule 12(b)(6) motion raising the failure to state a claim for relief, see Lawrence v. Dunbar , 919 F.2d 1525, 1529 (11th Cir. 1990) (citation omitted).
In contrast, a factual attack "challenges the existence of subject matter jurisdiction in fact, irrespective of the pleadings, and matters outside the pleadings, such as testimony and affidavits, are considered." Menchaca , 613 F.2d at 511 (citation omitted). In a factual attack, courts are free to weigh the evidence to satisfy themselves they have the power to hear the case. See Lawrence , 919 F.2d at 1529 (citations omitted). No presumption of truth attaches to the plaintiff's allegations, and the existence of disputed material facts does not prevent the trial court from evaluating for itself the merits of the jurisdictional claim. See id. (citations omitted). Moreover, "[i]n the face of a factual challenge to subject matter jurisdiction, the burden is on the plaintiff to prove that jurisdiction exists." OSI, Inc. v. United States , 285 F.3d 947, 951 (11th Cir. 2002) (alteration added; citations and footnote call number omitted). "A dismissal for lack of subject matter jurisdiction is not a judgment on the merits and is entered without prejudice." Stalley ex rel. U.S. v. Orlando Reg'l Healthcare Sys., Inc. , 524 F.3d 1229, 1232 (11th Cir. 2008) (citing Crotwell v. Hockman-Lewis Ltd. , 734 F.2d 767, 769 (11th Cir. 1984) ).
B. Federal Rule of Civil Procedure 12(b)(6)
"To survive a motion to dismiss [under Federal Rule of Civil Procedure 12(b)(6) ], a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ " Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (alteration added; quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Although this pleading standard "does not require ‘detailed factual allegations,’ ... it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Id. (alteration added; quoting Twombly , 550 U.S. at 555, 127 S.Ct. 1955 ). Pleadings must contain "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). "[O]nly a complaint that states a plausible claim for relief survives a motion to dismiss." Iqbal , 556 U.S. at 679, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ).
To meet this "plausibility standard," a plaintiff must "plead[ ] factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. at 678, 129 S.Ct. 1937 (alteration added; citing Twombly , 550 U.S. at 556, 127 S.Ct. 1955 ). "The mere possibility the defendant acted unlawfully is insufficient to survive a motion to dismiss." Sinaltrainal v. Coca-Cola Co. , 578 F.3d 1252, 1261 (11th Cir. 2009) (citation omitted), abrogated on other grounds by Mohamad v. Palestinian Auth. , 566 U.S. 449, 132 S.Ct. 1702, 182 L.Ed.2d 720 (2012).
When considering a motion to dismiss, a court must construe the complaint in the light most favorable to the plaintiff and take the factual allegations therein as true. See Brooks v. Blue Cross & Blue Shield of Fla., Inc. , 116 F.3d 1364, 1369 (11th Cir. 1997) (citing SEC v. ESM Grp., Inc. , 835 F.2d 270, 272 (11th Cir. 1988) ).
III. DISCUSSION
Defendants argue (1) the Court lacks supplemental jurisdiction over Plaintiff's state-law claims; (2) the Amended Complaint is an impermissible shotgun pleading; and (3) Videla should be dismissed from Count III, alleging copyright infringement. (See generally Mot.).
A. Supplemental Jurisdiction Over State Collection Claims (Counts I and II)
Defendants assert the "Court lacks subject matter jurisdiction over collection claims between two Florida corporations that are unrelated to the federal copyright claim over which the Court has original jurisdiction." (Mot. 4). Under 28 U.S.C. section 1367(a),
in any civil action of which the district courts have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.
Id. Claims form part of the same case or controversy when they arise out of a "common nucleus of operative fact." United Mine Workers of Am. v. Gibbs , 383 U.S. 715, 725, 86 S.Ct. 1130, 16 L.Ed.2d 218 (1966). "In deciding whether a state law claim is part of the same case or controversy as a federal issue, we look to whether the claims arise from the same facts, or involve similar occurrences, witnesses or evidence." Hudson v. Delta Air Lines, Inc. , 90 F.3d 451, 455 (11th Cir. 1996) (citation omitted).
Defendants maintain the state-law claims for open account and account stated do not have enough facts, evidence, or occurrences in common with the federal copyright claim to be part of the same case or controversy. (See Mot. 4–7). According to Defendants, the collection claims will involve a discussion of the invoices and the parties’ agreements regarding payments, timing of payments, an accounting of the payments made, and other accounting and pricing issues; while the copyright claim will require an analysis of Plaintiff's copyright application, the timing and contents of the copyright application, the validity of the copyright, Plaintiff's PowerPoint presentation, and the allegedly infringing portion of Doticom's website. (See id. 6–7).
Plaintiff characterizes its claims as follows:
[O]nce Defendants gained knowledge of the products sold by [Plaintiff] and the manner in which these products were marketed and promoted, Defendants stopped making payments that were due for products purchased from [Plaintiff] (thus giving rise to [Plaintiff's] state law claims for open account and account stated); and began to promote these same or similar products on Doticom's website by making use of [Plaintiff's] copyrighted work (thus giving rise to [Plaintiff's] copyright infringement claim).
(Opp'n 8 (alterations added)). According to Plaintiff, its federal and state claims involve similar facts, occurrences, witnesses, and evidence — Defendants’ alleged infringement and nonpayment of their debt took place during the same time frame, Videla is a common witness because he has knowledge of both alleged violations, and Doticom's website is relevant to all claims as it displayed Plaintiff's work without authorization and includes evidence of the unpaid products Doticom acquired from Plaintiff. (See id. 8–9).
Defendants have the stronger position. While Defendants acknowledge the claims may "involv[e] a few overlapping fact witnesses," they are correct that "the copyright claim will take the Court on a totally different journey than Plaintiff's collection claims." (Mot. 7 (alteration added)).
On the one hand, the collection claims are predicated on Doticom's failure to make payments due under the purchase orders, and the operative facts include any agreements for Doticom's purchase of Plaintiff's products and the amount claimed by Plaintiff, any promises to pay that amount, and whether the products were delivered. On the other hand, the relevant evidence for the copyright claim is Plaintiff's registered copyright, Plaintiff's PowerPoint presentation, and the allegedly infringing portion of Doticom's website. The federal and state claims do not arise out of a common nucleus of operative fact and therefore are not part of the same case or controversy. See Glades Pharm., LLC v. Murphy , No. 1:06-cv-0940, 2006 WL 3694625, at *6 (N.D. Ga. Dec. 12, 2006) (concluding the defendants’ breach-of-contract counterclaim for the plaintiff's failure to make monthly payments under a consulting agreement did not share nucleus of operative fact with the plaintiff's claim for copyright infringement alleging the defendants improperly used information associated with the plaintiff's PowerPoint presentation); Barcel v. Lele , No. 8:05-cv-1519, 2005 WL 3468282, at *2 (M.D. Fla. Dec. 19, 2005) (finding "the evidence, witnesses, and determinations necessary to resolve the federal and state claims differ substantially" where resolution of the federal trademark-infringement claims would focus on the plaintiffs’ purported trademarks and whether the defendant's product was "confusingly similar" to the plaintiffs’, while resolution of the state contract and tort claims would involve certain corporate transactions and underlying contracts); Kevin McGarry, LLC v. Bucket Innovations, LLC , No. 6:17-cv-315, 2018 WL 3352934, at *6 (M.D. Fla. June 19, 2018), report and recommendation adopted , 2018 WL 3344550 (M.D. Fla. July 9, 2018) (finding claims regarding patent inventorship did not "arise from the same occurrence" or "involve the same or similar evidence" as claims of common-law fraud based on misrepresentations about the viability of a related patent (quotation marks omitted)).
While Plaintiff contends "claims may constitute part of the same case or controversy for purposes of supplemental jurisdiction even when the elements of the federal and state claims are different" (Opp'n 7 (alteration adopted; quotation marks omitted)), the elements of each claim help point to the relevant underlying facts. The elements of a claim for open account are: "(1) that a sales contract existed between the creditor and debtor; (2) that the amount claimed by the creditor represents either the agreed on sales price or the reasonable value of the goods delivered; and (3) that the goods were actually delivered." Evans v. Delro Indus., Inc. , 509 So. 2d 1262, 1263 (Fla. 1st DCA 1987) (citation omitted). A claim for account stated requires: "(1) an agreement between the parties as to the amount owed, (2) an agreement that the amount owed was due, and (3) an express or implicit promise to pay that amount." Ham v. Portfolio Recovery Assocs., LLC , 260 So. 3d 450, 454 (Fla. 1st DCA 2018) (citation omitted).
To succeed on a claim of copyright infringement, a plaintiff must show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Compulife Software Inc. v. Newman , 959 F.3d 1288, 1301 (11th Cir. 2020) (quotation marks and citations omitted).
Plaintiff's arguments fail to cast doubt on the conclusion that its claims are not all part of the same case or controversy. Plaintiff's contention that its federal and state claims share a factual basis is belied by its own description of the alleged misconduct: Plaintiff states Defendants’ nonpayment for products purchased from Plaintiff "giv[e] rise to [Plaintiff's] state law claims for open account and account stated[,]" while Defendants’ unauthorized use of Plaintiff's copyrighted work on Doticom's website "giv[e] rise to [Plaintiff's] copyright infringement claim[.]" (Opp'n 8 (alterations added)).
That the misconduct arose out of the parties’ business relationship during the same time frame does not make the claims part of the same case or controversy, where the operative facts for each set of claims are distinct. See Donahue v. Tokyo Electron Am., Inc. , No. A-14-ca-563, 2014 WL 12479285, at *8 (W.D. Tex. Sept. 2, 2014) (finding former employee's state discrimination claim did not arise from same nucleus of operative fact as federal copyright-infringement and computer-fraud counterclaims because the "loose factual connection" — where employee was fired due to poor performance in creating the same videos he later allegedly infringed — was insufficient to make all claims part of same case or controversy (quotation marks omitted)). Even if Videla has knowledge of the alleged infringement and nonpayment and is a relevant witness for both sets of claims, Plaintiff is incorrect that Doticom's website constitutes relevant evidence for the collection claims; and Plaintiff does not point to any other commonalities between its federal and state-law claims. See CheckPoint Fluidic Sys. Int'l, Ltd. v. Guccione , No. Civ.A. 10-4505, 2012 WL 195533, at *5 (E.D. La. Jan. 23, 2012) (concluding "possible overlap in evidence" of the plaintiff's sales records was insufficient to justify exercise of supplemental jurisdiction, where state contractual claims otherwise involved different evidence from federal trademark-infringement claim). Consequently, Plaintiff has not met its "burden" of demonstrating supplemental jurisdiction, OSI, Inc. , 285 F.3d at 951 (citations and footnote call number omitted), and the state-law claims are dismissed.
B. Sufficiency of Copyright Claim (Count III)
The Court next examines the sufficiency of Plaintiff's federal copyright infringement claim. Defendants first insist the Amended Complaint is an impermissible shotgun pleading in violation of Federal Rule of Civil Procedure 8 because it incorporates general allegations into each count regardless of whether those allegations are related to the particular claims, and it comingles the relief sought for each claim into one request. (See Mot. 7–8). "[T]he Eleventh Circuit has drawn a bright line of distinction between the typical shotgun pleading — ‘where each count adopts the allegations of all preceding counts, causing each successive count to carry all that came before and the last count to be a combination of the entire complaint’ — and pleadings like the [Amended] Complaint[,]" where "each of the[ ] factual paragraphs are incorporated into each count regardless of their applicability to the particular count[.]" Woodley v. Royal Caribbean Cruises, Ltd. , No. 1:20-cv-20692, 472 F.Supp.3d 1194, 1202, (S.D. Fla. July 14, 2020) (alterations added; emphasis omitted; quoting Weiland v. Palm Beach Cnty. Sheriff's Off. , 792 F.3d 1313, 1321, 1324 (11th Cir. 2015) ). The latter is permissible, and so the Amended Complaint is properly pled.
In any event, Plaintiff is correct that "Defendants are on notice of ... the allegations levied against them in the [Amended Complaint]." (Opp'n 10 (alterations added)). Because, as Defendants argue throughout their briefing, the collection claims and copyright claim are in fact unrelated, it is not difficult to determine which allegations and prayers for relief correspond to the copyright claim; and Defendants thus have "adequate notice of the claim[ ] against them and the grounds upon which [it] rests." Weiland , 792 F.3d at 1323 (alterations added; footnote call number omitted). "In fact, [Defendants] do[ ] not argue that [they] had any difficulty in discerning which facts applied to which count, and [their] distinct arguments to dismiss each count confirm that there was no such difficulty." Woodley , 472 F.Supp.3d at 1202, (alterations added; citation omitted). The Court will not grant Defendants’ Motion on this basis.
Moving on, Defendants request the Court dismiss Count III as to Videla because Plaintiff has failed to allege all required elements to hold a corporate officer liable for copyright infringement. (See Mot. 8–11; Reply 7–8). As stated, a claim of copyright infringement requires that a plaintiff show "(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original." Compulife Software Inc. , 959 F.3d at 1301 (quotation marks and citations omitted). "If the plaintiff does not have direct proof of copying, the plaintiff may show copying by demonstrating that the defendants had access to the copyrighted work and that the works are substantially similar." Herzog v. Castle Rock Entm't , 193 F.3d 1241, 1248 (11th Cir. 1999) (quotation marks and citation omitted).
"The Eleventh Circuit has established ... two tests to determine personal liability for copyright infringement[.]" Playboy Enters., Inc. v. Starware Pub. Corp. , 900 F. Supp. 438, 440–41 (S.D. Fla. 1995) (alterations added; quotation marks omitted; citing S. Bell Tel. & Tel. Co. v. Associated Tel. Directory Publishers , 756 F.2d 801, 811 (11th Cir. 1985) ). First, a corporate officer or other individual is vicariously liable for copyright infringement if he "had the ability to supervise the infringing activity" and "had a financial interest in that activity." Id. at 441 (citation omitted). Alternatively, a corporate officer can be held liable for copyright infringement "based on his personal involvement and participation in the infringing activity." Id.
Defendants insist Plaintiff has failed to allege Videla had the right and ability to supervise Doticom and directly profited from the alleged infringement, as required under the vicarious-liability test. (See Mot. 9). According to Plaintiff, Defendants mischaracterize Count III, as the Amended Complaint alleges Videla directly infringed Plaintiff's work and does not include any allegations of vicarious copyright infringement. (See Opp'n 10; see also Am. Compl. ¶ 41 ("Defendants are now[ ] and have been directly infringing [Plaintiff's work.]" (alterations added))).
The Amended Complaint alleges Videla is Doticom's president and exercised control over Doticom at all relevant times (see Am. Compl. ¶¶ 9, 11); Videla, as an independent contractor for Plaintiff, had access to and knowledge of Plaintiff's copyrighted work and gained Plaintiff's confidential information (see id. ¶¶ 15, 25); both Doticom and Videla infringed Plaintiff's copyrighted work by using it on Doticom's website without authorization (see id. ¶¶ 17, 24, 26); and Doticom and Videla obtained direct and indirect profits from the alleged infringement (see id. ¶ 50).
These allegations support a reasonable inference that Videla is liable for direct copyright infringement. See Dish Network, L.L.C. v. Fraifer , No. 8:16-cv-2549, 2017 WL 34824, at *2 (M.D. Fla. Jan. 3, 2017) (finding complaint stated plausible basis for company president's personal liability for copyright infringement where it alleged in part that he participated in the infringing activity); Smith v. Casey , No. 1:12-cv-23795, 2014 WL 11878422, at *7 (S.D. Fla. Oct. 29, 2014) (finding allegations that the defendants, including an individual defendant, had access to copyrighted work and used it without authorization were sufficient to survive motion to dismiss, even though complaint did not state exactly how the defendants participated in the alleged infringement); Ordonez-Dawes v. Turnkey Props., Inc. , No. 06-60557-Civ, 2007 WL 1614515, at *4 (S.D. Fla. Apr. 5, 2007) (denying motion to dismiss copyright claim against corporation and individual where the plaintiff alleged defendants had access to copyrighted works when she gave them her photographs and the photographs later appeared in third parties’ advertisements, and noting the plaintiff's inability to describe defendants’ actions with more particularity did not make her allegations insufficient); Lajos v. duPont Pub., Inc. , 888 F. Supp. 143, 147 (M.D. Fla. 1995) ("Plaintiffs [sic] allegations, taken as true, state that duPont is the President of duPont Publishing, Inc. Viewing the claim in the light most favorable to the [p]laintiff, it is possible that DuPont, as President of duPont Publishing, Inc., meets the requirements ... to be held personally liable for the alleged [copyright infringement] of duPont Publishing, Inc." (alterations added; citation omitted)). Accordingly, Count III may proceed against Videla.
"[T]he Eleventh Circuit recognizes that there are no strict distinctions between the various theories of liability [under the Copyright Act].... Thus, on [Defendants’] Motion to Dismiss, the Court must consider whether the [Amended] Complaint states a valid claim against Defendant [Videla] under any theory of copyright liability[.]" Atlanta Photography, LLC v. Ian Marshall Realty, Inc. , No. 1:13-cv-2330, 2014 WL 11955391, at *3 (N.D. Ga. Mar. 7, 2014) (alterations added; citation omitted).
Defendants insist Plaintiff must also allege Videla "dominated Doticom" and "controlled Doticom or its infringement[.]" (Reply 8 (alteration added); see also id. 7 (citing Lajos , 888 F. Supp. at 147 )). In Lajos , however, the court found allegations about the defendant's position as company president met these requirements for purposes of a motion to dismiss. See 888 F. Supp. at 147.
Defendants further assert Plaintiff "neglected to allege that [ ] Videla personally participated in the infringement (Reply 8 (alterations added)), but they do not explain why Plaintiff's allegations of direct infringement are insufficient (see Am. Compl. ¶¶ 17, 24, 26).
IV. CONCLUSION
For the foregoing reasons, it is
ORDERED AND ADJUDGED that Defendants’ Motion to Dismiss First Amended Complaint [ECF No. 27] is GRANTED in part . Counts I and II of the Amended Complaint [ECF No. 25] are DISMISSED without prejudice . The Motion is DENIED as to Count III. Defendants have until and including September 17, 2020 to file separate answers to the Amended Complaint.
DONE AND ORDERED in Miami, Florida, this 3rd day of September, 2020.