Marquardt v. King et al

Filing 11

MOTION to Dismiss 1 Complaint with Brief In Support by Stephen King, Simon & Schuster Global Services, Inc.. (Attachments: # 1 Brief, # 2 Declaration of Elizabeth A. McNamara)(Freeman, Christopher) Modified on 2/15/2011 to correct linkage on docket (fap).

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
ROD MARQUARDT,
Plaintiff,
Civil Action No.
1:10-CV-03946-JEC

v.
STEPHEN KING and
SIMON & SCHUSTER, INC.,
Defendants.

DEFENDANTS STEPHEN KING AND SIMON & SCHUSTER, INC.’S
MOTION TO DISMISS THE COMPLAINT
Defendants Stephen King (“King”) and Simon & Schuster, Inc. (“Simon &
Schuster”) respectfully move, pursuant to Rule 12(b)(6) of the Federal Rules of
Civil Procedure, to dismiss with prejudice all counts of the Complaint of plaintiff
Rod Marquardt, a/k/a Rod Morgan (“Marquardt” or “Plaintiff”).
As grounds for the motion, King and Simon & Schuster state that the only
similarities between Marquardt’s novel Keller’s Den and the novel Duma Key,
written by King and published by Simon & Schuster, are abstract ideas, stock
elements and random similarities isolated from the expressive context in which
they appear, none of which are protected by copyright. It is plain from a review of
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DWT 16565462v1 3901014-000644

these books, and can be decided as a matter of law, that there is no substantial
similarity in protected expression between these two novels. Since “substantial
similarity” of protected expression is an essential element of a copyright claim,
Plaintiff’s copyright claim must be dismissed.
Accordingly, as the sole count of the Complaint fails to state a claim upon
which relief may be granted, King and Simon & Schuster are entitled to dismissal
of the Complaint with prejudice.
WHEREFORE, Defendants Stephen King and Simon & Schuster move that
the Court dismiss the Complaint with prejudice, and award Defendants their costs,
attorneys’ fees and such other and further relief as this Court deems just and
proper.
Dated:

February 14, 2011

1633 Broadway, 27th Floor
New York, New York 10019
[phone]
[phone] (fax)

DAVIS WRIGHT TREMAINE LLP
/s/ Elizabeth A. McNamara
Elizabeth A. McNamara, pro hac vice
CARLTON FIELDS, P.A.

1201 West Peachtree Street
Suite 3000
Atlanta, Georgia 30309
[phone]
[phone] (fax)

/s/ Christopher B. Freeman
Walter H. Bush
Georgia Bar No. 098825
Christopher B. Freeman
Georgia Bar No. 140867
Attorneys for Defendants Stephen King
and Simon & Schuster, Inc.

5 Union Court
Gloucester, Massachusetts 01930
[phone]

PETER HERBERT, ESQ
/s/ Peter A. Herbert
Peter A. Herbert, pro hac vice
Co-Counsel for Stephen King

CERTIFICATE OF SERVICE
This is to certify that I have this day served the within and foregoing
DEFENDANTS STEPHEN KING AND SIMON & SCHUSTER, INC.’S
MOTION TO DISMISS THE COMPLAINT by electronic notification through
the Court’s CM/ECF system as follows:
S. Quinn Johnson, Esq.
Johnson P.C.
3348 Peachtree Road, N.E.
Suite 700
Atlanta, Georgia 30326
This 14th day of February, 2011.

/s/ Christopher B. Freeman
Christopher B. Freeman