BELL v. PURDUE UNIVERSITY

Filing 48

ORDER granting Henderson's 38 Motion to Dismiss. If Third Amended Complaint is not filed within 14 days of this Entry, this case shall be dismissed for want of jurisdiction. Signed by Judge Richard L. Young on 7/17/2017. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
RICHARD N. BELL,

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Plaintiff,
vs.
JASON HENDERSON,
Defendant.

1:16-cv-02488-RLY-DML

ENTRY ON DEFENDANT’S MOTION TO DISMISS
Plaintiff, Richard N. Bell, brought this suit against Defendant, Jason Henderson, in
his individual capacity, for copyright infringement and unfair competition. Bell alleges
that Henderson, who serves as the Director of Extension at Purdue University, allowed
his copyrighted photo to be published without authorization on Purdue’s website. He
seeks both monetary damages and injunctive relief. Henderson now moves to dismiss the
Second Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1)
because the court lacks subject matter jurisdiction. The court holds that the Eleventh
Amendment bars this action, and therefore GRANTS Henderson’s motion.
I. Background
In 2000, Bell took a photograph of the skyline in downtown Indianapolis. (Filing
No. 31, Second Amended Complaint (“SAC”) ¶¶ 1, 7). He subsequently registered the
photo with the U.S. Copyright Office, and licensed it for publication. (Id. ¶¶ 1, 9, 11). In
2016, Bell discovered that his photo had been published, without authorization, in a
presentation entitled “Keeping Cattle in the Books.” (Id. ¶ 1). The source of the
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presentation purports to be “Purdue University Cooperative Extension Service.” (Filing
No. 1-2, Presentation).
In September 2016, Bell initiated this lawsuit, alleging copyright infringement and
unfair competition. (See Filing No. 1, Complaint). In the original Complaint, Bell
named Purdue University as the only defendant. One month later, he filed his Amended
Complaint with leave of court. The Amended Complaint named Mitch Daniels, President
of Purdue University, as the only defendant. (Filing No. 14, First Amended Complaint).
Daniels moved to dismiss on several grounds, including that the suit was barred by the
Eleventh Amendment. Daniels argued, “The First Amended Complaint . . . obviously
remains an attempt to sue the university.” (Filing No. 19 at 1).
In April 2017, Bell filed his Second Amended Complaint with leave of court. The
SAC names Henderson, “the Director of the Purdue Extension at Purdue University,” as
the only defendant. (SAC ¶ 6). In the SAC, Bell alleges that Henderson “permitted
employees of the Purdue Extension to publish the ‘Indianapolis Photo’ in advertising
which appears on a website owned by Purdue University” despite the fact that he “and his
subordinates knew they had no rights or authority to publish the Indianapolis Photo.” (Id.
¶ 1). Henderson “did not direct the employees of the Purdue Extension to disclose the
source of the stolen Indianapolis Photo.” (Id. ¶ 19). Rather, he “permitted employees of
the Purdue Extension to willfully and recklessly claim that Purdue University owned the
copyrights of all images and photos contained on the website.” (Id.). Furthermore,
Henderson “did not direct the Purdue University or the Purdue Extension to pay anyone
for the right to publish the Indianapolis Photo.” (Id. ¶ 23).
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II. Legal Standard
Henderson moves to dismiss the SAC for lack of subject matter jurisdiction,
failure to state a claim, and failure to join a party. The court need only consider the first
ground though. Federal Rule of Civil Procedure 12(b)(1) authorizes dismissal for lack of
subject matter jurisdiction. “Motions to dismiss under Rule 12(b)(1) are meant to test the
sufficiency of the complaint, not to decide the merits of the case.” Ctr. for Dermatology
& Skin Cancer, Ltd. v. Burwell, 770 F.3d 586, 588 (7th Cir. 2014). After a defendant
alleges that jurisdiction is lacking, it is the plaintiff who “bears the burden of establishing
that the jurisdictional requirements have been met.” Id. at 588-89. For purposes of
Henderson’s motion, the court accepts Bell’s well-pleaded factual allegations as true and
construes all reasonable inferences in his favor. Id. at 588.
III. Discussion
“[T]he Eleventh Amendment guarantees that ‘an unconsenting State is immune
from suits brought in federal courts by her own citizens as well as by citizens of another
State.’” Bd. of Regents of the Univ. of Wis. Sys. v. Phx. Int’l Software, Inc., 653 F.3d 448,
457 (7th Cir. 2011) (quoting Edelman v. Jordan, 415 U.S. 651, 663 (1974)). This
protection extends beyond just the state itself though. “If properly raised, the amendment
bars actions in federal court against a state, state agencies, or state officials acting in their
official capacities.” Ind. Prot. & Advocacy Servs. v. Ind. Family & Soc. Servs. Admin.,
603 F.3d 365, 370 (7th Cir. 2010) (en banc). There are three exceptions to this
jurisdictional bar, id. at 371, but only one is relevant here: the Ex Parte Young doctrine.
See Ex Parte Young, 209 U.S. 123 (1908). Pursuant to the Supreme Court’s holding in
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Ex Parte Young, “a private party can sue a state officer in his or her official capacity to
enjoin prospective action that would violate federal law.” Dean Foods Co. v. Brancel,
187 F.3d 609, 613 (7th Cir. 1999).
Initially, the court notes that Purdue University is an “arm of the state,” and is
therefore shielded by the Eleventh Amendment. Kashani v. Purdue Univ., 813 F.2d 843,
844 (7th Cir. 1987). Accordingly, “all claims against Purdue” and any “damages claims
against its officials in their official capacities” are barred as a matter of law. Id. at 848.
Bell hopes to avoid this bar. To this end, he explicitly states that he is suing Henderson
in his individual capacity, not as an officer or employee of Purdue. He cites to Ameritech
Corp. v. McCann, 297 F.3d 582, 586 (7th Cir. 2002) for the proposition that “individual
capacity suits do not implicate the Eleventh Amendment’s protections.” But Henderson
challenges this claim. He asserts that the SAC “obviously remains an attempt to sue
Purdue University,” (Filing No. 39 at 2), and that Bell has engaged in clever pleading in
hopes of end-running the Eleventh Amendment.
As the Supreme Court recently explained,
[I]n the context of lawsuits against state and federal employees or entities,
courts should look to whether the sovereign is the real party in interest to
determine whether sovereign immunity bars the suit. In making this
assessment, courts may not simply rely on the characterization of the parties
in the complaint, but rather must determine in the first instance whether the
remedy sought is truly against the sovereign. If, for example, an action is in
essence against a State even if the State is not a named party, then the State
is the real party in interest and is entitled to invoke the Eleventh
Amendment’s protection. . . .
In an official-capacity claim, the relief sought is only nominally against the
official and in fact is against the official’s office and thus the sovereign itself.
This is why, when officials sued in their official capacities leave office, their
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successors automatically assume their role in the litigation. The real party in
interest is the government entity, not the named official. Personal-capacity
suits, on the other hand, seek to impose individual liability upon a
government officer for actions taken under color of state law. Officers sued
in their personal capacity come to court as individuals, and the real party in
interest is the individual, not the sovereign.
Lewis v. Clarke, 137 S. Ct. 1285, 1291-92 (2017) (citations, quotation marks, and
brackets omitted).
Here, the court has little trouble concluding that Purdue University (and therefore
the state of Indiana) is the real party in interest. Indeed, Bell initially filed this suit
against Purdue. He subsequently substituted its President, and then Henderson, for
Purdue. This conspicuous chain of events certainly suggests that Bell is trying to find a
way to lawfully sue Purdue. Moreover, the SAC against Henderson is essentially a copy
of the original Complaint against Purdue, except that Bell replaced “PURDUE” with
“HENDERSON,” and added references to “employees” and “subordinates.” The SAC
repeatedly frames its allegations against Henderson in terms of his authority over Purdue
employees. Additionally, the sole cause of action against Henderson arises out of a
copyrighted photo that appears on a website owned by Purdue.
The relief Bell seeks is only nominally against Henderson; it is in fact against
Purdue. For example, in the SAC, Bell demands that Henderson account for any profits
derived from his infringing conduct. Yet, if the lawsuit is truly against Henderson in his
individual capacity, this makes little sense. The court fails to understand how Henderson
could have personally profited from distributing the “Keeping Cattle in the Books”
presentation. It is theoretically possible that Purdue profited from this presentation

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though. Furthermore, Bell asks that the court enjoin Henderson to remove the photo from
ag.purdue.edu/extension. But again, the website is owned by Purdue. It is not
Henderson’s personal website.
Accordingly, the Eleventh Amendment bar applies here. This means that any
claim for monetary damages is barred. If that was the only form of relief Bell prayed for
in his SAC, this finding would dispose of the entire case. But Bell also seeks injunctive
relief–specifically, he wants Purdue to cease publishing his copyrighted material without
consent. This is properly characterized as prospective injunctive relief against an arm of
the state, which would be permitted under Ex Parte Young if Bell was suing Henderson in
his official capacity. Kashani, 813 F.2d at 848. It is not, however, available in an
individual-capacity suit. Of course, Bell may no longer be interested in continuing this
litigation now that monetary damages are off the table. But if he does wish to pursue
injunctive relief, he should be given that opportunity.
IV. Conclusion
Therefore, Henderson’s Motion to Dismiss (Filing No. 38) is GRANTED. This
court lacks subject matter jurisdiction over the Second Amended Complaint. If Bell
wants to move forward with a claim against Henderson in his official capacity claim for
prospective injunctive relief, he may amend his Complaint to reflect this. If he does not
file a Third Amended Complaint within fourteen days of this Entry, this case shall be

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dismissed for want of jurisdiction. Final Judgment will then issue accordingly.

SO ORDERED this 17th day of July 2017.

Distributed Electronically to Registered Counsel of Record.

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