Cynthia Tessler v. NBC
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
CYNTHIA DONN TESSLER, Plaintiff - Appellant, v. NATIONAL BROADCASTING COMPANY, INCORPORATED, Defendant - Appellee.
Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:08-cv-00234-RAJ-TEM)
December 16, 2009
February 4, 2010
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Duncan G. Byers, DUNCAN G. BYERS, P.C., Norfolk, Virginia, for Appellant. Stephen E. Noona, R. Johan Conrod, Jr., KAUFMAN & CANOLES, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM: Cynthia order dismissing Donn her Tessler complaint appeals against the district court's
Company, Incorporated ("NBC") for failure to state a claim, Fed. R. Civ. P. 12(b)(6). Tessler, an independent producer residing
in Norfolk, Virginia, developed a program entitled "Parenting Your Parent," which relates to issues involving adult children caring for their elderly parents. Tessler asserts that an NBC
Nightly News segment entitled "Trading Places" directly copied, without authorization, Tessler's original "Parenting Your
Parent" materials. infringement
In her complaint, Tessler alleged copyright I"), breach of contract ("Count II"),
breach of implied contract ("Count III"), and conversion ("Count IV"). On appeal, Tessler challenges only the district court's For the following reasons, we
disposition of Counts I and II. affirm. This court reviews
dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Johnson, 521 F.3d 298, 302 (4th Cir. 2008).
"The purpose of a
Rule 12(b)(6) motion is to test the sufficiency of a complaint . . . ." Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th To survive a Rule 12(b)(6) motion, a plaintiff must
"`give the defendant fair notice of what the claim is and the grounds upon which it rests.'" Erickson v. Pardus, 551 U.S. 89, 2
93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)) (alterations omitted). The facts alleged must "raise a
right to relief above the speculative level," and the complaint must contain "enough facts to state a claim to relief that is plausible on its face." The district Twombly, 550 U.S. at 555, 570. court properly considered material
contained on MSNBC.com in dismissing Count I because the website was referenced in Tessler's complaint. A court may consider a
document that the defendant attaches to its motion to dismiss if the document "was integral to and explicitly relied on in the complaint and if Am. 212, the plaintiffs do v. not challenge its
authenticity." Inc., marks 367 and F.3d
Chiropractic 234 (4th
Healthcare, quotation court
abuse its discretion in rejecting Tessler's challenge to the authenticity of the material contained on the website. See
General Elec. Co. v. Joiner, 522 U.S. 136, 141 (1997) (holding a district court's evidentiary rulings are reviewed for abuse of discretion). We further find that the district court properly
dismissed Count II.
A federal court sitting in diversity must CACI Int'l,
apply the choice of law rules of the forum state.
Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th Cir. 2009). Under state law, "Virginia adheres to the use of 3
questions of substantive law are governed by the law of the place of the transaction or the place where the right is
Frye v. Commonwealth, 345 S.E.2d 267, 272 (Va. 1986)
(citations omitted). As the district court noted, "[i]t is not clear where the offer was made; however, both New York and Virginia law essentially require the same elements for a legally enforceable contract." must prove: To establish a breach of contract claim, a plaintiff "(1) a legally enforceable obligation of [the]
defendant to [the] plaintiff; (2) the defendant's violation or breach of that obligation; and (3) injury or damage to the
plaintiff caused by the breach of obligation."
Filak v. George,
594 S.E.2d 610, 614 (Va. 2004); see also Clearmont Prop., LLC v. Eisner, 872 N.Y.S.2d 725, 728 (N.Y. App. Div. 2009). In order
to prove a contract, a party must prove an offer and acceptance of that offer. Snyder-Falkinham v. Stockburger, 457 S.E.2d 36,
39 (Va. 1995); Kowalchuck v. Stroup, 873 N.Y.S.2d 43, 46 (N.Y. App. Div. 2009). Because Tessler failed to allege that she
accepted NBC's offer to use her materials, the district court correctly dismissed Count II. Accordingly, we affirm the judgment of the district court. legal We dispense with oral argument because the facts and contentions are adequately 4 presented in the materials
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?