BELL v. MCCANN et al

Filing 10

ENTRY on Defendant McCann's Motion to Dismiss - Mr. McCann's Motion to Dismiss (Dkt. 6) is GRANTED. Mr. Bell's claims against Mr. McCann are DISMISSED without prejudice. If Mr. Bell wishes leave to file an amended complaint against Mr. McCann he must seek leave to do so within fourteen (14) days of the date of this Entry. Signed by Judge Tanya Walton Pratt on 3/7/2014. (TRG)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,
Plaintiff,
v.
BEN MCCANN, and NEIL COX,
Defendants.

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) Case No. 1:13-cv-00799-TWP-DKL
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ENTRY ON DEFENDANT McCANN’S MOTION TO DISMISS
This matter is before the Court on Defendant Ben McCann’s (“Mr. McCann”) Motion to
Dismiss (Dkt. 6). Mr. McCann filed his motion and brief in one document, which Plaintiff
Richard N. Bell (“Mr. Bell”) contends violates Local Rule 7-1 and should result in dismissal.
However, documents filed pro se are to be “liberally construed.” Erickson v. Pardus, 551 U.S.
89, 94 (2007). Denial of the motion is not appropriate as a sanction for the error in form under
Local Rule 1-3. Focusing on the merits of the motion, the Court finds that Mr. Bell has failed to
state a claim for relief against Mr. McCann, and Mr. McCann’s Motion (Dkt. 6) is GRANTED.
I. BACKGROUND
Mr. Bell owns the copyright to a photograph of the Indianapolis skyline (“Indianapolis
Photo”) that he took in March 2000. It was first published on the website “Webshots” on August
29, 2000, and has been recently published on Mr. Bell’s personal website. It was registered on
August 4, 2011, with the United States Copyright Office. Mr. Bell alleges that each Defendant
downloaded or took the Indianapolis Photo without his permission for use on Defendants’
websites for commercial use. Mr. Bell notified Defendants of the alleged infringing use and
demanded payment.

Mr. McCann is the founder of the website “http://indychristianmedia.com”. The website
provides a platform for people to communicate and share content. On June 25, 2011, Mr. Bell
contacted Mr. McCann by email reporting the unlawful use of the Indianapolis Photo and
demanded payment. Mr. McCann notified Neil Cox, who removed the photograph from the
website on June 26, 2011, and informed Mr. Bell of such. Mr. Bell subsequently filed this
lawsuit.
II. LEGAL STANDARD
Although Mr. McCann styled his motion as a Federal Rule of Civil Procedure 12(b)(6)
motion, it is better classified as a motion under Rule 12(c) for judgment on the pleadings.
Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the parties have
filed the complaint and answer. Rule 12(c) motions are reviewed under the same standard as a
motion to dismiss under 12(b)(6). Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996). Like a Rule
12(b)(6) motion, for a complaint to survive its factual allegations must be sufficient to raise the
possibility of relief above the “speculative level,” assuming that all of the allegations in the
complaint are true. E.E.O.C. v. Concentra Health Servs., Inc., 496 F.3d 773, 776 (7th Cir. 2007)
(quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “A pleading that offers
‘labels and conclusions’ or a ‘formulaic recitation of the elements of a cause of action will not
do.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555).

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to
relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). For a claim to be plausible, the plaintiff
must put forth enough “facts to raise a reasonable expectation that discovery will reveal
evidence” supporting the plaintiff’s allegations. Brooks v. Ross, 578 F.3d 574, 581 (7th Cir.
2009). “Specific facts are not necessary; the statement need only give the defendant fair notice
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of what the . . . claim is and the grounds upon which it rests.” Erickson, 551 U.S. at 93 (citing
Twombly, 550 U.S. at 555) (alteration in original). However, “at some point the factual detail in
a complaint may be so sketchy that the complaint does not provide the type of notice of the claim
to which the defendant is entitled under Rule 8.” Brooks, 578 F.3d at 581 (quoting Airborne
Beepers & Video, Inc. v. AT & T Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007)).
III. DISCUSSION
Mr. Bell has filed a complaint seeking declaratory and monetary damages alleging claims
of copyright infringement, unfair competition and theft. In his pleadings, Mr. Bell has alleged,
but has not shown, that he is entitled to relief. His complaint contains formulaic labels and
conclusions, but not facts. For example, the complaint under his copyright claim generically
alleges that all—originally, twenty-two in total—Defendants: downloaded the Indianapolis
Photo; willfully, recklessly, and falsely claimed that it owned the copyright to the photograph;
published the photograph for commercial use; engaged in unfair trade practices and competition;
and willfully engaged in these acts with oppression, fraud, and malice. See Dkt. 5. The
complaint alleges under Mr. Bell’s theft claim all of the preceding allegations and that the
Defendants knowingly or intentionally exerted unauthorized control over Mr. Bell’s property and
therefore have committed criminal conversion. See Dkt. 5.
While providing specific facts is not necessary in a complaint, Mr. Bell is required to do
more than recite legal conclusions of conduct with generic applicability to various defendants.
“Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime
of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing
more than conclusions.” Iqbal, 556 U.S. at 678–79. Legal conclusions are not afforded the
assumption of truth. Id. at 679.

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Here, Mr. Bell’s complaint is similar to the conclusory complaint at issue in Twombly.
See 550 U.S. at 551 (quoting complaint); Iqbal, 556 U.S. at 679 (noting the complaint in
Twombly was “flatly pleaded” as a legal conclusion). It is also similar to the deficient allegations
in Iqbal. There the respondent pleaded that “petitioners knew of, condoned, and willfully and
maliciously agreed to subject [him] to harsh conditions of confinement as a matter of policy,
solely on account of [his] religion, race, and/or national origin and for no legitimate penological
interest.” Iqbal, 556 U.S. at 680 (internal quotation marks omitted; alteration in original). The
Supreme Court held that “[t]hese bare assertions, much like the pleading of conspiracy in
Twombly, amount to nothing more than a ‘formulaic recitation of the elements’ of a
constitutional discrimination claim . . . . As such, the allegations are conclusory and not entitled
to be assumed true.” Id. at 680–81 (quoting Twombly, 550 U.S. at 555).
Like in these cases, the Court will not afford the assumption of truth to the legal
conclusions in Mr. Bell’s complaint. Neither does the Court find any factual allegations that are
not legal conclusions, which could entitle him to relief and satisfy the standard of review. For
these reasons, Mr. McCann’s Motion is GRANTED.
IV. CONCLUSION
Accordingly, Mr. McCann’s Motion to Dismiss (Dkt. 6) is GRANTED. Mr. Bell’s
claims against Mr. McCann are DISMISSED without prejudice. If Mr. Bell wishes leave to
file an amended complaint against Mr. McCann he must seek leave to do so within fourteen
(14) days of the date of this Entry.

SO ORDERED.
03/07/2014
Date: _______________

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________________________
Hon. Tanya Walton Pratt, Judge
United States District Court
Southern District of Indiana

DISTRIBUTION:
Ben McCann
705 North Shore Boulevard
Franklin, Indiana 46131
Neil Cox
131 Walter Street
Carmel, Indiana 46032
Richard N. Bell
BELL LAW FIRM
[e-mail]

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