Pustanio v. Schiffer Publishing, Ltd. et al

Filing 23

ORDER denying 19 Motion to Dismiss; denying 22 Motion to supplement the motion to dismiss are. Signed by Judge Lance M Africk. (car, )

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
CIVIL ACTION

ALYNE PUSTANIO
VERSUS

No. 11-2153

SCHIFFER PUBLISHING, LTD., ET AL.

SECTION I

ORDER AND REASONS
Before the Court is a motion1 to dismiss and a motion2 for leave to supplement that
motion, filed by defendant, Tracie Trog (“Trog”).

Plaintiff, Alyne Pustanio (“Pustanio”),

opposes the motion to dismiss.3 For the following reason, the motions are DENIED.
BACKGROUND
In her complaint, Pustanio alleges that she is an author whose works are interpretations of
Louisiana folklore and oral traditions.4

Pustanio alleges, generally, that Trog and Trog’s

publisher, Schiffer Publishing, Ltd., knowingly, willfully, and intentionally plagiarized and
reproduced portions of her works without her consent in a book entitled Louisiana Ghosts.5
Pustanio filed this lawsuit seeking damages for copyright infringement and unjust enrichment.6
On May 3, 2012, Trog filed this motion to dismiss Pustanio’s complaint.7 Trog asserts
that she has made less than five hundred dollars ($500.00) in royalties on Louisiana Ghosts and
that the legends to which Pustanio claims ownership predate her birth.8 Trog argues that she
received the material Pustanio claims to own from various sources in good faith and with

1

R. Doc. No. 19.
R. Doc. No. 22.
3
R. Doc. No. 21.
4
Id.
5
Id.
6
Id.
7
R. Doc. No. 19.
8
Id.
2

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permission.9 She also claims to have registered Louisiana Ghosts with the Copyright Office
prior to Pustanio’s registration, and that Pustanio has withheld information concerning the
existence of Trog’s copyright.10 Trog argues that the plagiarism claims are false and that she had
researched and compiled the information for Louisiana Ghosts before Pustanio made her works
available on the internet.11 Trog submitted documentary evidence purporting to show that
Pustanio’s registration date of her website was two months later than what was registered with
the Registrar of Copyright.12 Trog requests the lawsuit be dismissed as frivolous and that the
Court impose sanctions on Pustanio for filing this lawsuit.13
STANDARD OF LAW
I. Federal Rule of Civil Procedure 12(b)(6)
A district court may dismiss a complaint, or any part of it, for failure to state a claim upon
which relief can be granted if the plaintiff has not set forth a factual allegation in support of his
claim that would entitle him to relief. Fed. R. Civ. Proc. 12(b)(6); Bell Atl. Corp. v. Twombly,
550 U.S. 544, 127 S. Ct. 1955, 1964-65, 167 L. Ed. 2d 929 (2007); Cuvillier v. Taylor, 503 F.3d
397, 401 (5th Cir. 2007). As the Fifth Circuit explained in Gonzalez v. Kay:
“Factual allegations must be enough to raise a right to relief above the
speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127
S.Ct. 1955, 167 L.Ed.2d 929 (2007). The Supreme Court recently
expounded upon the Twombly standard, explaining that “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, ---U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868
(2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955, 167 L.Ed.2d
929). “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. It follows that “where
9

Id.
Id.
11
Id.
12
R. Doc. No. 22.
13
R. Doc. No. 19.
10

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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 1950 (quoting
Fed.R.Civ.P. 8(a)(2)).
577 F.3d 600, 603 (5th Cir. 2009).
This Court will not look beyond the factual allegations in the pleadings to determine
whether relief should be granted. See Spivey v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996). In assessing the complaint, a court must
accept all well-pleaded facts as true and liberally construe all factual allegations in the light most
favorable to the plaintiff. Spivey, 197 F.3d at 774; Lowrey v. Tex. A & M Univ. Sys., 117 F.3d
242, 247 (5th Cir. 1997). “Dismissal is appropriate when the complaint ‘on its face show[s] a bar
to relief.’” Cutrer v. McMillan, 308 Fed. Appx. 819, 820 (5th Cir. 2009) (quoting Clark v.
Amoco Prod. Co., 794 F.2d 967, 970 (5th Cir. 1986)).
II. Federal Rule of Civil Procedure 12(d)
The Federal Rules of Civil Procedure provide that “[i]f, on a motion filed pursuant to
Rule 12(b)(6) . . . matters outside the pleadings are presented to and not excluded by the Court,
the motion must be treated as one for summary judgment under Rule 56.” Fed. R. Civ. Proc.
12(d). A court has discretion pursuant to Rule 12(b)(6) whether to accept and consider such
materials on a motion to dismiss. Isquith v. Middle S. Utils., Inc., 847 F.2d 186, 194 n.3 (5th Cir.
1988); 2 James Wm. Moore, Moore's Federal Practice § 12.34, at 12-72 (3d ed. 2002). “The
mere fact that the defendant[] include[s] . . . [extrinsic] matters in [its] memorand[um] to the
court in support of [its] motion does not mean that the court [will] consider[] this material in any
way when making its decision.” Reid v. Hughes, 578 F.2d 634, 636 & n.2 (5th Cir. 1978).
However, if the court decides to accept and consider these materials, the motion will be treated
as one for summary judgment. Fed. R. Civ. Proc. 12(d); see Fernandez-Montes v. Allied Pilots
3

Ass'n, 987 F.2d 278, 283 n.7 (5th Cir. 1993). In such cases, Rule 12(d) provides that “[a]ll
parties must be given a reasonable opportunity to present all the material that is pertinent to the
motion.”
DISCUSSION
Trog’s motion to dismiss sets forth factual arguments along with materials outside the
pleadings in an attempt to dispute the factual allegations in the complaint. Trog’s factual
arguments are not appropriate on a motion to dismiss filed pursuant to Rule 12(b)(6), as this
Court must take the allegations in the complaint as true.

Given the early stage of the

proceedings, the limited and incomplete record with respect to the claims asserted in this matter,
and the factual arguments submitted in response to the motion to dismiss (which also references
materials outside the pleadings), the Court declines the opportunity to convert the motion to
dismiss into a motion for summary judgment. Trog’s motion does not provide any other grounds
upon which to dismiss the complaint for failure to state a claim. Accordingly,
IT IS ORDERED that Tracie Trog’s motion14 to dismiss and her motion to supplement
the motion15 to dismiss are DENIED.

New Orleans, Louisiana, June 13, 2012.

_____________________________________
LANCE M. AFRICK
UNITED STATES DISTRICT JUDGE

14
15

R. Doc. No. 19.
R. Doc. No. 22.

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