Cynthia Tessler v. NBC

Filing 920100204

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 09-1495

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)

Submitted:

December 16, 2009

Decided:

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Affirmed by unpublished per curiam opinion.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Unpublished opinions are not binding precedent in this circuit.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

National

Broadcasting

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"),

("Count

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

de

novo

a

district

court's

dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Johnson, 521 F.3d 298, 302 (4th Cir. 2008).

Giarratano v.

"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

Cir. 1999).

"`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

Ass'n

Trigon

Healthcare, quotation court

Cir.

2004) did

(internal the

alterations

omitted).

Nor

district

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

traditional

rules

applicable

to

conflicts

of

laws[:]

.

.

.

questions of substantive law are governed by the law of the place of the transaction or the place where the right is

acquired."

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

before

the

court

and

argument

would

not

aid

the

decisional

process. AFFIRMED

5