Connor v. Ferris Marketing, Inc. et al

Filing 34

OPINION AND ORDER denying 20 motion to dismiss (Count IX). Signed by Judge John E. Steele on 3/7/2017. (RKR)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
FORT MYERS DIVISION
MICHAEL
individual,

CONNOR,

an

Plaintiff,
v.

Case No: 2:16-cv-871-FtM-29MRM

FERRIS MARKETING, INC., a
Delaware
corporation,
PC
GEAR HEAD, LLC, a Florida
limited liability company,
RONALD M. FERRIS, JR., an
individual, and DANIEL A.
SHEA, an individual,
Defendants.

OPINION AND ORDER
This matter comes before the Court on review of defendant’s
Motion to Dismiss Plaintiff's Claim for Declaratory Judgment Under
the Copyright Act (Count IX) (Doc. #20) filed on January 20, 2017.
Plaintiff filed a Response in Opposition (Doc. #27) on February 4,
2017.
I.
The

Complaint

relationship

between

(Doc.

#1)

plaintiff

describes
Michael

a

soured

Connor

business

(plaintiff

Conner) and defendants, culminating in the current lawsuit.

or
The

first eight counts allege state law claims against defendants

Ferris Marketing, Inc. (Ferris Marketing), Ronald M. Ferris, Jr.
(Ferris), and Daniel A. Shea (Shea) for breach of fiduciary duty
or aiding and abetting breach of fiduciary duty (Counts I, II,
III), civil conspiracy (Count IV), breach of an implied operating
agreement (Count V), breach of an implied covenant of good faith
and fair dealing (Count VI), for judicial dissolution of a limited
liability company (Count VII), and unjust enrichment (Count VIII).
In Count IX, the only federal claim and only claim against PC
Gear Head, LLC, plaintiff asserts that he is the author of certain
Visual Works, and seeks a declaratory judgment under the Copyright
Act that (a) a valid copyright exists over the Visual Works; (b)
plaintiff was never an employee of PC Gear Head LLC under the
Copyright Act; (b) the Visual Works are not works made for hire;
and (d) plaintiff is the sole and exclusive owner of the copyright
in the Visual Works.
II.
Under Federal Rule of Civil Procedure 8(a)(2), a Complaint
must contain a “short and plain statement of the claim showing
that the pleader is entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

This obligation “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action will not
do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(citation omitted).

To survive dismissal, the factual allegations

2

must be “plausible” and “must be enough to raise a right to relief
above the speculative level.”

Id. at 555.

See also Edwards v.

Prime Inc., 602 F.3d 1276, 1291 (11th Cir. 2010).
“more

than

accusation.”

an

unadorned,

Ashcroft

v.

This requires

the-defendant-unlawfully-harmed-me
Iqbal,

556

U.S.

662,

678

(2009)

(citations omitted).
In Count IX, plaintiff more specifically alleges that he is
the original author of PC Gear Head’s logos, artistic packaging,
artistic product design, graphic art, and other two and threedimensional works of fine, graphic, and applied art.

Plaintiff

alleges that these visual works were used in PC Gear Head’s
business, and are pictorial, graphic, and sculptural works under
the Copyright Act. Plaintiff alleges that he was never an employee
of PC Gear Head, and there is no express written agreement that
the visual works were works made for hire.

Plaintiff alleges that

an actual controversy exists between plaintiff and PC Gear Head as
to ownership of the visual works, and that plaintiff is suffering
from ongoing injury in the form of unpaid licensing rights and the
denial of rights to use or license the visual works as the
exclusive owner.

The Court finds that the factual allegations are

sufficient to satisfy the federal pleading standard.
Accordingly, it is now
ORDERED:

3

Defendant’s

Motion

to

Dismiss

Plaintiff's

Claim

for

Declaratory Judgment Under the Copyright Act (Count IX) (Doc. #20)
is DENIED.
DONE AND ORDERED at Fort Myers, Florida, this
March, 2017.

Copies:
Counsel of record

4

7th

day of