Opinion
Civil Action No. 04-cv-02526-RPM.
February 24, 2006
ORDER DENYING DEFENDANTS' MOTIONS TO DISMISS
The defendants responded to the first amended complaint, filed September 12, 2005, with a Rule 12(b)(6) motion to dismiss, filed October 6, 2005, and a motion to dismiss claims three and four as a motion for judgment on the pleadings under Fed.R.Civ.P. 12(c). Essentially, the second motion is based on the contention that the plaintiff's state law claims are preempted by federal law. In these motions, the defendants are essentially contending that the plaintiff will not be able to demonstrate a sufficient connection between the named defendants and a Hong Kong franchisee of the defendants with respect to a website and linkage which the plaintiff claims to violate his copyright on his pictures and text on his website. The issue is not properly presented under Rule 12(b)(6). The plaintiff has not pleaded the evidence upon which he intends to rely to establish such a connection as to cause the defendants to be liable either for direct or contributory infringement but he is not required to do so. Notice pleading is applicable and discovery in this case has been proceeding. The second motion, relying on preemption, presupposes that the plaintiff has claims under the Federal Copyright Act. The Court considers the challenged claims as alternative pleadings and therefore preemption cannot be applied at this stage of the litigation. It is
ORDERED that the defendants' motions are denied.