Coyle v. University of Kentucky et al

Filing 37

OPINION AND ORDER: IT IS ORDERED that the University defendants' 30 MOTION to Dismiss by Mitchell S. Barnhart, Eric N. Monday, University Athletics Committee of the University of Kentucky Board of Trustees, and University of Kentucky is GRANTED. Signed by Judge Karen K. Caldwell on March 4, 2014. (MWZ) cc: COR

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION
AT LEXINGTON
DAVID COYLE, individually and
d/b/a TEAM COYLE PHOTOGRAPHY,

CIVIL ACTION NO. 5:12-369-KKC

Plaintiff,
V.

OPINION AND ORDER

UNIVERSITY OF KENTUCKY, et al.,
Defendants.

*** *** ***
This matter is before the Court on a motion to dismiss brought by four defendants in
this case: the University of Kentucky, the University Athletics Committee of the University
of Kentucky Board Of Trustees, Eric N. Monday, and Mitchell S. Barnhart. (DE 30). These
four defendants (the “University defendants”) contend that the claims brought against
them are barred by sovereign immunity and must be dismissed. To the extent that
Barnhart and Monday are sued in their individual capacities, they argue that the plaintiffs
have failed to allege facts sufficient to sustain a claim against them. For the following
reasons, the Court will grant the University defendants’ motion.
BACKGROUND
David Coyle is a professional photographer in Lexington, Kentucky who has taken
photographs for the University of Kentucky and the University of Kentucky Athletics
Association1 since 1988. In his Complaint (DE 1) and Amended Complaint (DE 29), Coyle
alleges that between 1988 and 2010 he entered into a series of varying contracts to
According to the pleadings, the Athletic Association was dissolved in 2012 and the parties in this
case—the University and the University Athletics Committee—assumed the obligations,
responsibilities, and liabilities of UKAA.
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photograph the University’s varsity intercollegiate athletics teams. Although the terms of
these contracts varied, Coyle’s position is that he retained ownership of the copyrights to all
the images he produced.
According to Coyle, the University defendants engaged in “a series of strategic
partnerships” through which they used Coyle’s photographs for various commercial
activities. (DE 1, ¶ 27). Because Coyle claims to retain ownership of the copyrights, he
alleges that such usage by the University defendants and other private defendants
constitutes a violation of his exclusive rights under 17 U.S.C. § 106. He seeks a declaratory
judgment that he is the owner of the copyrights in question, damages for copyright
infringement, and injunctive relief.
DISCUSSION
The University defendants present two grounds for dismissal of Coyle’s claims. First,
they claim that the doctrine of sovereign immunity under the Eleventh Amendment
precludes suit against the University, the Athletics Committee, and Barnhart and Monday
sued in their official capacities. Second, to the extent that Barnhart and Monday are sued
in their individual capacities, the defendants contend that Coyle has failed to allege facts
sufficient to connect them personally to any alleged copyright infringement. The Court will
address each claim in turn.
I. Sovereign Immunity Precludes Suit against the University Defendants
With few exceptions, the doctrine of sovereign immunity bars private lawsuits against
states without their consent. See Federal Maritime Com’n v. South Carolina State Ports
Authority, 535 U.S. 743, 751–52 (2002); Seminole Tribe of Florida v. Florida, 517 U.S. 44,
54 (1996). If the state has not voluntarily waived sovereign immunity, a party may bring
suit in cases where Congress has validly abrogated the state’s immunity. See Florida
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Prepaid Postsecondary Educ. Expense Bd. v. College Sav. Bank, 527 U.S. 627, 635–36
(1999). In limited circumstances, a private party may bring suit even without a valid
abrogation or waiver of immunity. Under the doctrine of Ex parte Young, a state official
sued in their official capacity may be enjoined from taking action that violates federal law.
See Diaz v. Michigan Dept. of Corrections, 703 F.3d 956, 964 (2013). In the present case, the
plaintiff asserts that his copyright claims are not barred against the University defendants
because Congress validly abrogated sovereign immunity for copyright claims when it
passed the Copyright Remedy Clarification Act (CRCA), Pub. L. No. 101-553, 104 Stat. 2749
(Nov. 15 1990), and that—at the very least—Ex parte Young allows the suit against
Barnhart and Monday to proceed.
A. Congress Did Not Validly Abrogate Sovereign Immunity in the CRCA
Courts engage in a two-part test to determine whether Congress validly abrogated a
state’s sovereign immunity. “Because abrogation of sovereign immunity upsets the
fundamental constitutional balance between the Federal Government and the States, and
because States are unable directly to remedy a judicial misapprehension of that abrogation,
the Court has adopted a particularly strict standard for evaluating whether Congress has
abrogated the States’ sovereign immunity.” See Port Authority Trans-Hudson Corp. v.
Feeney, 495 U.S. 299, 305 (1990) (internal quotations omitted). Under the two-part test,
courts evaluate whether (1) Congress has unequivocally expressed an intent to abrogate a
state’s immunity and (2) validly done so pursuant to the Fourteenth Amendment. See
Florida Prepaid, 527 U.S. at 635–36.
Both parties agree in this case that Congress intended to abrogate sovereign immunity
when it passed the CRCA. Coyle provides a lengthy and persuasive account as to Congress’s
intent (DE 34, at 5–13), and the plain language of the CRCA is unmistakable in this regard.
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The statute states that “[a]ny State, any instrumentality of a State, and any officer or
employee of a State or instrumentality of a State acting in his or her official capacity, shall
not be immune, under the Eleventh Amendment . . . or under any other doctrine of
sovereign immunity, from suit in Federal court . . . for a violation of any of the exclusive
rights of a copyright owner . . . .” 17 U.S.C. § 511(a). Because Congress’s intent to abrogate
is so clear, the first prong of the test is satisfied. Therefore, the issue turns on whether the
abrogation was valid.
The Court finds that the CRCA’s attempt at abrogation is invalid because the law was
passed pursuant to the Copyright Clause found in Article I, Section 8 of the U.S.
Constitution, and Congress cannot abrogate sovereign immunity under its Article I powers.
(DE 30-1, at 6–7). In Florida Prepaid, the Supreme Court explained that “Congress may not
abrogate state sovereign immunity pursuant to its Article I powers.” Florida Prepaid, 527
U.S. at 636. From this, the Court held that Congress’s attempt to abrogate state sovereign
immunity in the Patent Remedy Act cannot be justified under either the Commerce Clause
or the Patent Clause as both arise under Article I. Id. Similarly, the CRCA is invalid to the
extent that it abrogates sovereign immunity under the Copyright Clause, which is also part
of Article I.
The plaintiff argues that there is a difference between a copyright and a patent, but the
Court finds that any difference is immaterial given that Congress is granted the authority
to regulate them both under Article I. If Congress cannot abrogate state sovereign
immunity under Article I at all, it makes no difference whether it has done so for copyrights
or patents. This is especially true given that the authority to regulate copyrights and
patents derives from the same constitutional provision. See U.S. Const., Art. I, Sec. 8 (“To

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promote the Progress of Science and useful Arts, by securing for limited Times to Authors
and Inventors the exclusive Right to their respective Writings and Discoveries.”).
Alternatively, the plaintiff submits that the CRCA can be justified under Section 5 of
the Fourteenth Amendment. In his response memorandum, Coyle summarily concludes
that because Congress has the right to pass enforcement legislation under Section 5, the
Court should find that the CRCA was validly enacted pursuant to the Fourteenth
Amendment. He argues that “[t]he fundamental problem with [the conclusion that the
CRCA was not passed pursuant to the Fourteenth Amendment] is that it sidesteps the
issue that Congress has the clear right under the Fourteenth Amendment to enforce
provisions of the Amendment through ‘appropriate legislation.’” (DE 34, at 12–13). Coyle
says nothing else to support his claim that the Fourteenth Amendment, rather than Article
I, is the proper constitutional provision under which the CRCA should be evaluated.
As Coyle suggests, Congress has the clear authority to pass enforcement legislation
under Section 5 to abrogate state sovereign immunity. Unlike Article I, the power to
abrogate sovereign immunity under Section 5 is well-established. See Florida Prepaid, 527
U.S. at 636–37 (citing Seminole Tribe, 517 U.S. at 59, and Fitzpatrick v. Bitzer, 427 U.S.
445 (1976)). “[T]he Fourteenth Amendment, by expanding federal power at the expense of
state autonomy, [ ] fundamentally altered the balance of state and federal power struck by
the Constitution.” Seminole Tribe, 517 U.S. at 59.
The Court is not persuaded, however, that Section 5 is the means by which Congress
passed the CRCA. In his memorandum, Coyle relies extensively on the House Report
accompanying the CRCA as evidence of Congress’s intent to abrogate state sovereign
immunity. (DE 34, at 5–13). But where the report demonstrates Congress’s intent to
abrogate, it also demonstrates that Congress passed the CRCA pursuant to the Copyright
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Clause of Article I. See H.R. Rep. No. 101-282(I), at 7 (1990).2 Thus, the Court finds that the
CRCA was passed pursuant to its Article I powers, not those established under the
Fourteenth Amendment.
Several courts have analyzed whether the attempted abrogation would be valid even if
it had been passed pursuant to the Fourteenth Amendment, rather than Article I, and all of
them found that the abrogation would still be invalid. See Jacobs v. Memphis Convention
and Visitors Bureau, 710 F. Supp. 2d 663, 674–82 (W.D. Tenn. 2010); Chavez v. Arte
Publico Press, 204 F.3d 601 (5th Cir. 2000); De Romero v. Institute of Puerto Rican Culture,
466 F. Supp. 2d 410, 416–18 (D.P.R. 2006). Coyle has not provided a single reason to
suggest that the CRCA was passed pursuant to Section 5. Moreover, Congress was explicit
in invoking Article I when passing the CRCA and “[t]here is no suggestion in the language
of the statute itself, or in the House or Senate Reports of the bill which became the statute,
that Congress had in mind” Section 5 of the Fourteenth Amendment. Florida Prepaid, 527
U.S. at 641 n. 7 (noting that a statute that clearly invokes the constitutional provision on
which Congress is relying to pass it “precludes consideration” of alternative justifications).
As such, this Court need not venture further and finds that the CRCA does not validly
abrogate state sovereign immunity.

The House Report explains why the CRCA is necessary by distinguishing its powers under the
Fourteenth Amendment from its powers under Article I. Unlike Article I, the Report noted that
Congressional power to abrogate sovereign immunity under the Fourteenth Amendment “has been
repeatedly upheld” by the Supreme Court. See H.R. Rep. No. 101-282(I), at 7 (1990). The CRCA,
however, was passed after the Supreme Court held in Pennsylvania v. Union Gas, 491 U.S. 1 (1989),
that Congress had the power to abrogate immunity under Article I. See id. (“Congress' power under
the Fourteenth Amendment has been repeatedly upheld, but in Pennsylvania v. Union Gas, the
Court held that Congress has the power to abrogate under the Commerce Clause of Article I. The
Committee believes that the Union Gas reasoning applies equally to the Copyright Clause of Article
I.”). The Supreme Court subsequently overruled its holding that Congress could abrogate immunity
under Article I, but it remains the case Congress relied on the Copyright Clause, not the Fourteenth
Amendment, to pass the CRCA.
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B. Coyle Has Not Brought a Valid Claim under Ex Parte Young
A second exception to state sovereign immunity is for suits brought under the Ex parte
Young doctrine. Coyle contends that even if his suit for damages is barred by the Eleventh
Amendment, he may proceed under Ex parte Young to the extent that he seeks prospective
injunctive relief against Barnhart and Monday in their official capacities. The University
defendants, however, argue that Coyle has failed to bring a valid Ex parte Young action
because (1) Ex parte Young cannot be used to declare who owns disputed property, and (2)
Coyle has failed to allege an ongoing violation of federal law by Barnhart or Monday. The
Court finds that Coyle has failed to allege an ongoing violation of federal law and thus
cannot prevail on his Ex parte Young claim against Barnhart and Monday.3
“To ensure the enforcement of federal law, [ ] the Eleventh Amendment permits suits for
prospective injunctive relief against state officials acting in violation of federal law.” Frew
ex rel. Frew v. Hawkins, 540 U.S. 431, 437 (2004). Thus, when bringing a claim against a
state official in their official capacity, the doctrine of Ex parte Young permits suit so long as
the individual “seek[s] prospective relief to end a continuing violation of federal law.” See
Diaz, 703 F.3d at 964. An Ex parte Young action is available only when the state official
being sued has taken—or is about to take—an action. See Children’s Healthcare is a Legal
Duty, Inc. v. Deters, 92 F.3d 1412, 1414–1416 (6th Cir. 1996) (“Young abrogates a state
official’s Eleventh Amendment immunity when a suit challenges the constitutionality of a
state official’s action.”). But “Young ‘does not insulate from Eleventh Amendment challenge

The University defendants and Coyle dispute whether or not an Ex parte Young action can be used
when seeking a declaration as to who owns a copyright. But Coyle does not seek a declaratory
judgment against Barnhart and Monday (DE 29, at 6–9), and Ex parte Young cannot be used in an
action against the state itself or its agencies. See Puerto Rico Aqueduct and Sewer Authority v.
Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993). Moreover, this question is rendered moot given the
Court’s finding that Coyle’s Ex parte Young action is insufficient on other grounds. The Court
therefore need not reach this novel question of law.
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every suit in which a state official is the named defendant . . . Young applies only where the
underlying authorization upon which the named official acts is asserted to be illegal.’” Id. at
1417. In that regard, the state official sued in an Ex parte Young action must bear a
“sufficient connection” to the challenged act, and it is not enough to simply claim that by
virtue of their office they have the general authority to take the allegedly illegal action. See
id. at 1416 (noting that “[g]eneral authority to enforce the laws of the state is not sufficient
to make government officials the proper parties to litigation challenging the law”).
In this case, Coyle claims that Barnhart and Monday, by virtue of their office, “approved
of, condoned or acquiesced in the” alleged copyright infringement described in the
complaint. (DE 29, at 5–6). But in the amended complaint, Coyle does not allege a single
“affirmative act” that Barnhart and Monday “took . . . through their respective positions.”
The amended complaint, in describing the factual allegations to support claims against
Barnhart and Monday, states only that:
To the extent the individual occupying [Barnhart or Monday’s]
position at all times relevant hereto approved of, condoned or
acquiesced in the actions referred to in numerical paragraph 6,
those actions were necessarily contrary to law and act to strip
that individual of any official immunity otherwise conferred on
that individual as a matter of law.
(DE 29, at 5–6, repeated throughout ¶¶ 62–64). In regard to Barnhart, Coyle additionally
states that “[a]t all times relevant hereto, the University’s Director of Athletics was
responsible for pertinent actions and transactions of the University affecting and pertaining
to intercollegiate athletics, including but not limited to financial transactions affecting the
intercollegiate athletics program.” (DE 29, at 5, ¶¶ 63–64). Similarly, with respect to
Monday, Coyle states in his complaint that “[a]t all times relevant hereto, the University’s
Executive Vice President for Finance and Administration was responsible for pertinent
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financial transactions of the University, including but not limited to those occurring on the
Lexington Campus.” (DE 29, at 5, ¶¶ 62).
Coyle’s argument, then, is that Barnhart and Monday are responsible for general
decisions regarding finances and athletics and can therefore be sued to the extent that the
person holding their respective offices took action violating federal law. But Coyle does not
claim that Barnhart and Monday actually took actions that “approved of, condoned or
acquiesced” in the alleged infringement. In fact, Coyle does not even claim that a generic
officeholder in Barnhart or Monday’s position would necessarily take these actions. Instead,
he states that such an officeholder would be subject to suit only “to the extent that” he took
these illegal actions; not that he necessarily must have taken illegal actions. This
distinction is critical. As the Sixth Circuit Court of Appeals has stated, “general authority”
to take illegal action “is not sufficient to make government officials the proper parties to
litigation challenging the law.” Children’s Healthcare, 92 F.3d at 1416. Coyle has alleged
only that Barnhart and Monday had general duties that might require approving of,
condoning, or acquiescing to acts constituting copyright infringement. He has not identified
any acts taken by Barnhart and Monday that brought about the alleged copyright
infringement. Accordingly, the Court finds that Coyle has failed to make out a viable claim
under Ex parte Young allowing him to proceed with his suit against Barnhart and Monday
in their official capacities.
II. Coyle Has Not Alleged Any Facts Sufficient to Establish Liability Against
Monday and Barnhart in Their Individual Capacities
The lack of specificity in Coyle’s complaint creates similar problems for his claims
against Monday and Barnhart in their individual capacities. To avoid a 12(b)(6) dismissal
for failure to state a claim, “a complaint must contain sufficient factual matter, accepted as
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true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing
Twombly, 550 U.S. at 556). The court must view the allegations in the complaint in the
light most favorable to the plaintiffs, treating all well-pleaded facts as true, but need not
accept bare legal conclusions as definitive. See Tackett v. M & G Polymers, USA, LLC, 561
F.3d 478, 488 (6th Cir. 2009) (citing Gunasekera v. Irwin, 551 F.3d 461, 466 (6th Cir.
2009)).
As explained above, Coyle does not allege any actions by Barnhart and Monday that
would render them liable for copyright infringement. Rather, he cites to the general duties
that accompany their respective offices to draw an inference that they might have, at the
very least, “approved of, condoned or acquiesced in” the infringing activities. But this is
insufficient to survive a motion to dismiss. Even taken as true, Coyle’s allegations do not
identify any particular wrongdoing by Barnhart and Monday. When Coyle alleges that “[t]o
the extent the individual occupying [Barnhart or Monday’s] position at all times relevant
hereto approved of, condoned or acquiesced in” the copyright infringement, he implicitly
concedes that he does not know if—and therefore cannot allege that—Barnhart and
Monday ever actually did approve of, condone, or acquiesce in the allegedly wrongful acts.
Without more, Coyle cannot sustain a claim against either of these defendants, and the
motion to dismiss is therefore granted. See Green v. Nicholas Cnty. School District, 756 F.
Supp. 2d 828, 830 (E.D. Ky. 2010) (noting that “where 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”).
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CONCLUSION
Because the claims against the University defendants are barred by sovereign
immunity and Coyle failed to allege facts against Barnhart and Monday sufficient to state a
claim to relief, IT IS ORDERED that the University defendants’ motion to dismiss (DE 30)
is GRANTED.
Dated this 4th day of March, 2014.

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