Aldabe v. Cornell University et al

Filing 50

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDER"For the foregoing reasons, defendants motion to dismiss, (Docket No. 27), is ALLOWED and defendants motion to control service (Docket No. 24) is DENIED AS MOOT. So Ordered."(Caruso, Stephanie)

United States District Court
District of Massachusetts
Fermin Aldabe,
Plaintiff,
v.
Cornell University et al.,
Defendants.

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Civil Action No.
16-12268-NMG

MEMORANDUM & ORDER
GORTON, J.
Here we have a dispute over the rejection and
reclassification of certain written articles of plaintiff Fermin
Aldabe (“plaintiff” or “Aldabe”).

The articles were submitted

to arXiv (pronounced “archive”), an online repository of
manuscript preprints owned and operated by Cornell University
(“Cornell”).

Aldabe, who appears pro se, alleges that Cornell

and the individual defendants who operate arXiv (collectively
“defendants”) breached a contract between the parties and
violated the Copyright, Civil Rights, Sherman Antitrust and
False Claims Acts.

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Before the Court are 1) defendants’ motion to control
service and 2) defendants’ motion to dismiss.
I. Background
In 1991 the Los Alamos National Laboratory (“LANL”) created
an online repository of digital scientific “preprints”.
Physicists, mathematicians, economists and other academics
publish their research as digital “preprints” before such
research appears in a formal, peer-reviewed journal.

These

digital preprints take the place of draft articles researchers
used to post on physical billboards in research labs.
Originally maintained under the domain name xxx.lanl.gov, LANL
secured arXiv.org as a domain name in 1998 and transferred arXiv
to Cornell University Library in 2001.
Articles published on arXiv are not subject to the rigorous
peer review process of formal journals.

Instead, the research

is subject to minimal oversight that includes reclassifying an
article for a more appropriate category or removing an article
that violates arXiv policies.

With over one million scientific

articles available to the public without cost, arXiv is the
largest such repository in the world.

It also plays a prominent

role in the world of peer-reviewed journals, as some journals
will not publish articles that lack an arXiv-assigned
identification number.

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Fermin Aldabe joined xxx.lanl.gov in 1994 as a postdoctoral fellow in theoretical physics and submitted a dozen
articles to the website between 1995 and 1998.

Aldabe alleges

that, after the 2001 transfer from LANL to Cornell, arXiv’s
continued publication of those articles was improper.
In a separate incident, Aldabe alleges that arXiv
mistreated him with respect to an October, 2015, paper
submission.

According to Aldabe, arXiv misclassified the paper

as a general physics (“physics.gen-ph”) paper, although Aldabe
intended the paper to be categorized as a high energy
theoretical physics (“hep-th”) paper.

Aldabe explains that an

author
would prefer to flush his work down the toilet instead of
selecting physics.gen-ph, [because those articles are]
doomed to be ignored by most if not all members
of the international community of physicists.

This is because

articles bearing the “hep-th” designation are featured closer to
the top of arXiv’s daily newsletter and because researchers
searching arXiv’s database may limit their search to the “hepth” category.
Two weeks after the initial submission, during which time
plaintiff and arXiv exchanged emails, arXiv rejected Aldabe’s
paper.

One month later, arXiv explained to Aldabe that the

paper was “in need of significant review and revision before it

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would be considered publishable.”

Aldabe alleges that arXiv’s

real reason for rejection was that his name “sounds Muslim”.
One year after the described incident, in November, 2016,
the European Physical Journal C, a peer-reviewed journal,
accepted Aldabe’s paper for publication.

Upon submitting his

article to arXiv again, Aldabe discovered that the paper was
once again reclassified from “hep-th” to “physics.gen-ph”.
Plaintiff filed his original complaint in November, 2016,
and an amended complaint in March, 2017.

The defendants’ motion

to dismiss responds to that amended complaint.
The Court will address each count of the amended complaint
seriatim.
II. Analysis
Class Action
Plaintiff brings each claim as a putative class action but,
as a pro se litigant, he is not authorized to serve as the
representative of a class. See D. Mass L.R. 83.5.5(b) (“An
individual appearing pro se may not represent any other party .
. .”); Kerlinsky v. Sandoz, Inc., 2010 WL 4450494, at *2 (D.
Mass. Oct. 25, 2010), report and recommendation adopted, 2010 WL
4450450 (D. Mass. Nov. 4, 2010).

Given that this litigation is

at the motion-to-dismiss stage, however, the Court need not
address the class certification issue at this time.

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Legal Standard
To 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.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).

In considering the merits of

a motion to dismiss, the Court may look only to the facts
alleged in the pleadings, documents attached as exhibits or
incorporated by reference in the complaint and matters of which
judicial notice can be taken. Nollet v. Justices of Trial Court
of Mass., 83 F. Supp. 2d 204, 208 (D. Mass. 2000), aff’d, 248
F.3d 1127 (1st Cir. 2000).

Furthermore, the Court must accept

all factual allegations in the complaint as true and draw all
reasonable inferences in the plaintiff's favor. Langadinos v.
Am. Airlines, Inc., 199 F.3d 68, 69 (1st Cir. 2000).

If the

facts in the complaint are sufficient to state a cause of
action, a motion to dismiss the complaint must be denied. See
Nollet, 83 F. Supp. 2d at 208.
Although a court must accept as true all of the factual
allegations contained in a complaint, that doctrine is not
applicable to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662
(2009).

Threadbare recitals of the legal elements which are

supported by mere conclusory statements do not suffice to state
a cause of action. Id. Accordingly, a complaint does not state a
claim for relief where the well-pled facts fail to warrant an
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inference of any more than the mere possibility of misconduct.
Id. at 1950.
Count I – Copyright Violation
Plaintiff alleges that defendants violated and continue to
violate copyright law by distributing papers on arXiv, without
consent, which plaintiff uploaded to xxx.lanl.gov from 1994 to
1998.

Defendants assert that the claim is time barred, that

plaintiff never registered copyrights for the relevant papers,
and that plaintiff granted arXiv an implied license to
distribute his work.

The Court agrees that the claim is time

barred and that defendant obtained an implied license and thus
will not address the registration contention.
Section 507(b) of the Copyright Act requires that a
plaintiff bring a civil action for copyright infringement
“within three years after the claim accrued.” 17 U.S.C. §
507(b).

A claim accrues when a plaintiff “knows or has

sufficient reason to know of the conduct upon which the claim is
grounded.” Warren Freedenfeld Assocs., Inc. v. McTigue, 531 F.3d
38, 44 (1st Cir. 2008).
Cornell University began operating arXiv.org, according to
plaintiff, no later than 2001 and distributed plaintiff’s works
thereafter.

A minimum of 15 years passed between the time

Cornell allegedly first began to infringe plaintiff’s copyrights
and the filing of plaintiff’s complaint in 2016.
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The statute of

limitations is three years.

Without providing any facts or

particulars, plaintiff counters in his opposition that
[t]o this day, Cornell uses xxx.lanl.gov to fraudulently
conceal its ownership of Arxiv.
This claim is belied by plaintiff’s statement in his
amended complaint that, according to Wikipedia, Paul Ginsparg
changed institutions to Cornell University in 1999, brought the
xxx.lanl.gov repository with him and changed its name to
arXiv.org.
Even were his claim not time-barred, plaintiff would have
no copyright claim against defendants because, taking
plaintiff’s factual allegations as true, plaintiff granted arXiv
an implied license to distribute his works.

Uses of copyrighted

work that “stay within the scope of a nonexclusive license are
immunized from infringement suits.” John G. Danielson, Inc. v.
Winchester-Conant Properties, Inc., 322 F.3d 26, 40 (1st Cir.
2003) (citing Graham v. James, 144 F.3d 229, 236 (2d Cir.
1998)).

An implied license exists where (1) the licensee

requested the work, (2) the creator made and delivered the work
and (3) the creator intended that the licensee copy and make use
of the work. Estate of Hevia v. Portrio Corp., 602 F.3d 34, 41
(1st Cir. 2010).
Here, arXiv encouraged authors to submit articles to its
website, Aldabe uploaded his paper to the licensee and Aldabe

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agreed to let arXiv distribute his work for “the greater good”
and betterment of the “scientific community as a whole.”
Because arXiv did not exceed the scope of the license,
plaintiff’s alleged facts, taken as true, do not state a claim
for copyright infringement.
Plaintiff’s claims for copyright infringement are barred by
the statute of limitations and fail to state a claim upon which
relief can be granted. Count I will be dismissed.
Count II – Discrimination under the Civil Rights Act
Plaintiff alleges that defendants systematically
discriminated against scientists on the basis of race, religion
and national origin in violation of the Civil Rights Act, 42
U.S.C. § 1981.1

Defendants submit that the amended complaint

fails to plead the necessary elements of a civil rights claim.
Section 1981, originally § 1 of the Civil Rights Act of
1866, protects the equal right of all citizens to “make and
enforce contracts”. See Domino's Pizza Inc., v. McDonald, 546
U.S. 470, 474 (2006) (quoting 42 U.S.C. § 1981(a)).

Section

1981 “can be violated only by purposeful discrimination.” Gen.
Bldg. Contractors Ass’n, Inc. v. Pennsylvania, 458 U.S. 375, 391
(1982).

The Court reiterates that, as a pro se litigant, plaintiff
cannot bring a claim on behalf of another party or group. See D.
Mass L.R. 83.5.5(b)
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Plaintiff’s amended complaint is insufficient to state a
cause of action under § 1981.

He relies on a “statistical

analysis” he allegedly performed by comparing the names of
authors who were reclassified with the names of those who were
not.

Further, he states that he
was discriminated [against] because his name was taken to
be Muslim because it carries the same two first letters as
Al Qaeda.
Such allegations, considered separately or together, are

insufficient to state a claim under § 1981.
Plaintiff alleges that he performed a “statistical
analysis” of reclassified and non-reclassified articles on arXiv
showing
with a 99.99% certainty [that] Brown Persons, Muslims,
Easter (sic) Europeans and Indians were systematically
discriminated [against].
Without any explanation as to how plaintiff identified
persons as belonging to one of the described groups, the
allegation is frivolous.

Even if the claim were true, however,

it would sound in discriminatory impact, not discriminatory
intent, and would not state a claim under § 1981.
His allegation bearing upon the first two letters of his
name is not only untenable but also the kind of “threadbare
recital[] of the elements of a cause of action, supported by
mere conclusory statements” that does not suffice to state a
claim for relief. See Iqbal, 556 U.S. at 678.
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Plaintiff’s § 1981 claim is dismissed for failure to state
a claim upon which relief can be granted.
Count III - Violation of the Sherman Antitrust Act
Plaintiff alleges that arXiv exerted monopoly power over
him, a “supplier” in the “market of ideas”, in violation of the
Sherman Act.

Defendant contends that plaintiff lacks antitrust

standing and fails to state an antitrust claim.
The Sherman Act prohibits
[e]very contract, combination in the form of trust or
otherwise, or conspiracy, in restraint of trade or commerce
among the several States, or with foreign nations.
15 U.S.C. § 1.
To state a claim under § 1, a plaintiff must plead facts
plausibly alleging that defendant acted as part of a conspiracy,
agreement or arrangement. Gilbuilt Homes, Inc. v. Cont’l Homes
of New England, a Div. of Wylain, Inc., 667 F.2d 209, 210 (1st
Cir. 1981).

Plaintiff alleges that arXiv suppresses certain

individuals “from distributing their ideas to curtail
competition for government funding”.

Even assuming that the

Court accepts that assertion, plaintiff’s allegations do not
support the conclusion that defendant engaged in a common
design, conspiracy or agreement to do a wrongful act.
Accordingly, plaintiff has failed to state a claim under § 1 of
the Sherman Act.
Section 2 of the Sherman Act makes it illegal to
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monopolize, or attempt to monopolize, or combine or
conspire with any other person or persons, to monopolize
any part of the trade or commerce among the several States,
or with foreign nations.
15 U.S.C. § 2.
To state a monopolization claim under § 2, a plaintiff must
adequately allege that defendant (1) has monopoly power in the
relevant market and (2) has engaged in illicit “exclusionary
practices” with “the design or effect of protecting or enhancing
its monopoly position.” Sterling Merch., Inc. v. Nestle, S.A.,
656 F.3d 112, 125 (1st Cir. 2011) (quoting Coastal Fuels of
P.R., Inc. v. Caribbean Petroleum Corp., 79 F.3d 182, 195 (1st
Cir. 1996) (internal citation omitted)).
Plaintiff offers that the market was “clearly defined” in
his amended complaint where he alleges that
arXiv is not just a eprint or preprint archive, it is also
a choke that scientists have to overcome in order to
publish.
The statement is not one of fact but rather an
unsubstantiated conclusion.
not a clearly defined market.

The global “market for ideas” is
Furthermore, when determining if

a complaint sufficiently pleads the existence of a monopoly in a
market, district courts require specific economic data such as
defendant’s market share, market trends, entry barriers,
geographic market and the defendant’s economic power in that
market. See CCBN.Com, Inc. v. Thomson Fin., Inc., 270 F. Supp.
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2d 146, 157 (D. Mass. 2003).

Plaintiff fails to plead facts

demonstrating that arXiv had a monopoly or a dangerous
probability of achieving one, even were the Court to accept that
the global market for ideas is sufficiently defined.
Defendants’ motion to dismiss plaintiff’s claim under
sections 1 and 2 of the Sherman Act for failure to state a claim
upon which relief can be granted will be allowed.
Count IV – Violation of the False Claims Act
Plaintiff alleges that arXiv’s suppression of certain
research defrauded NASA, the Department of Energy and other
government organizations that award grant funding by benefitting
the subpar work of Cornell researchers.

Defendants respond that

plaintiff has failed to comply with the notification and filing
requirements of the False Claims Act and that plaintiff’s claims
are too general to satisfy Fed. R. Civ. P. 9(b).
The False Claims Act makes
any person who knowingly presents, or causes to be
presented, a false or fraudulent claim for payment or
approval . . . liable to the United States government.
31 U.S.C. § 3729(a)(1).
Because False Claims Act actions sound in fraud, they are
governed by heightened pleading standard of Federal Rule of
Civil Procedure 9(b). Lawton ex rel. United States v. Takeda
Pharm. Co., Ltd., 842 F.3d 125, 130 (1st Cir. 2016).

That rule

provides that in alleging fraud, “a party must state with
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particularity the circumstances constituting fraud or mistake.”
Fed. R. Civ. P. 9(b).

The First Circuit Court of Appeals

(“First Circuit”) has repeatedly explained that relators must
“set forth with particularity the who, what, when, where, and
how of the alleged fraud”. Lawton, 842 F.3d at 130 (quoting
United States ex rel. Ge v. Takeda Pharm. Co., Ltd., 737 F.3d
116, 123 (1st Cir. 2013)) (additional citation omitted).
Plaintiff has failed to provide that particularity.

The

defendants must be engaged in fraud, plaintiff opines, because
“a professor cannot be a professor at Cornell unless he has won
grants”.

This kind of res ipsa loquitur allegation fails to

satisfy Rule 9(b)’s heightened pleading requirement.
Defendants’ motion to dismiss plaintiff’s False Claims Act
count for failure to satisfy Rule 9(b) will be allowed.

Given

the plaintiff’s failure to satisfy Rule 9, the Court need not
address his notification and filing deficiencies.
Count V – Breach of Contract
Plaintiff contends that that he entered into a contract
with arXiv in October, 2015, when he submitted one of his papers
to it.

Defendants breached the contract, plaintiff maintains,

by 1) failing to provide specific grounds for the article’s
rejection, 2) reclassifying the article from the prestigious
“hep-th” label to the underwhelming “physics.gen-ph” tag, and 3)
not providing an arXiv ID for the paper in a “typical time”.
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Defendant responds that plaintiff’s submission merely
constituted an offer, that no contract was consummated, that no
breach occurred and that plaintiff’s alleged harms are outside
the bounds of legally-cognizable contract damages.
Even if a contract had been formed and plaintiff had
properly alleged damages, the complaint fails to allege that the
contract was materially breached.
Under Massachusetts law, a plaintiff asserting breach of
contract must demonstrate that (1) an agreement was made between
plaintiff and defendant that was supported by consideration, (2)
plaintiff was ready, willing and able to perform, (3) defendant
failed to perform a material obligation provided for in the
contract and (4) plaintiff suffered harm caused by defendant’s
failure to perform. Coady Corp. v. Toyota Motor Distributors,
Inc., 346 F. Supp. 2d 225, 248 (D. Mass. 2003), aff’d, 361 F.3d
50 (1st Cir. 2004) (citing Singarella v. City of Boston, 342
Mass. 385, 387 (1961)).

A breach of contract is material “when

it involves an essential and inducing feature of the contract.”
EventMonitor, Inc. v. Leness, 473 Mass. 540, 546 (2016)
(citations omitted) (internal quotation omitted).
Plaintiff asserts that arXiv materially breached its
promise to
follow the moderation procedure with integrity and if
successful to exhibit and distribute plaintiff’s scientific

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article. If not, to provide a reason so that author could
address it and resubmit it once resolved.
Accepting plaintiff’s factual allegations as true, the
amended complaint fails to allege that arXiv deviated from its
moderation procedure.

That procedure provides several potential

reasons for removal of an article, including inappropriate
format, inappropriate topic, duplicated content, submission of
copyrighted material and excessive submission rate.
When arXiv rejected Aldabe’s paper, it did so with the
explanation that the paper was “in need of significant review
and revision.”

Plaintiff thus was given a reason for the

rejection and Aldabe admits that arXiv was entitled to reject or
remove articles for being in an “inappropriate format”.

The

arXiv website defines “inappropriate format” to include “papers
in need of significant review and revision.”

According to

plaintiff’s own allegations, then, no material breach of a
contract occurred.
Plaintiff also includes alleged breaches of terms that do
not exist in the on-line agreement.

He alleges that arXiv

promised to “state with good reason” why an article lacks
scientific quality.

He further claims that arXiv breached its

agreement by not providing an arXiv ID in a “typical time”.
to the former allegation, arXiv clearly states that website
administrators “cannot provide detailed feedback regarding

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As

submissions deemed inappropriate.”

As to the latter, plaintiff

points to no provision governing the timeliness of arXiv’s
approval process.
Finally, plaintiff alleges that defendants breached the
contract by rejecting his work in October, 2015, and
reclassifying his paper to “physics.gen-ph” in November, 2016.
Prior to submitting those papers, however, Aldabe agreed to
arXiv’s policy statement providing that “I understand that
arXiv.org reserves the right to reclassify or reject any
submission.”

Accordingly, arXiv did not materially breach any

contract by rejecting or reclassifying plaintiff’s work.
Plaintiff fails to allege that any material feature of the
alleged contract was breached.
Defendants’ motion to dismiss plaintiff’s claim of breach
of contract for failure to state a claim upon which relief can
be granted will be allowed.
Claims against Individual Defendants and the Simons Foundation
In addition to suing Cornell University, plaintiff brings
his claims against a handful of individual defendants and the
Simons Foundation.

The only individual defendant who is

mentioned in the body of the amended complaint is Paul Ginsparg
and he allegedly played a role in Cornell’s copyright
infringement.

However, plaintiff’s copyright claim fails, as

described above.

Plaintiff also alleges that the Simons
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Foundation “aided and abetted” Cornell University’s
discrimination against him, but that claim fails as well because
the underlying discrimination charge will be dismissed.
The substance and structure of a plaintiff’s complaint
“must give the defendants notice of the nature of the claim
against them.” Ruivo v. Wells Fargo Bank, N.A., 766 F.3d 87, 91
(1st Cir. 2014) (citing Cortés–Rivera v. Department of
Corrections & Rehabilitation, 626 F.3d 21, 28–29 (1st Cir.
2010)).

Where a complaint omits any reference to individual

defendants, no such notice is provided.

Accordingly, courts

dismiss causes of action for failure to state a claim as to
unmentioned individual defendants. See, e.g., Keane v. Navarro,
345 F. Supp. 2d 9, 12 (D. Mass. 2004).
The Court has explained that each count in plaintiff’s
amended complaint fails against Cornell University and the
individuals who operate arXiv.

In addition, however, the

copyright count against Ginsparg and the discrimination count
against Simons Foundation will be dismissed for failure to state
a claim upon which relief can be granted, as will all counts
against the individual defendants who are not mentioned in the
body of the complaint.
III. Motion to Control Service
Defendants have filed a motion to control service of
plaintiff’s amended complaint on the 70 individual defendants
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who are not specifically mentioned therein.

The motion requests

that the court order plaintiff to refrain from serving those
defendants until the Court rules on their pending motion to
dismiss.
Defendants assert that plaintiff has named multiple
individuals “to use his amended complaint as an instrument of
harassment”.

In support of that assertion, defendants point to

emails plaintiff exchanged with defendants’ counsel and directly
with individual defendants.

In one such message to defense

counsel, plaintiff explains:
Give me some credit and consider that I may make it stick
and that all those defendants will have their names
plastered on the internet unnecessarily.
In another, sent directly to a defendant, plaintiff states
Isn’t cool that if you google your name the claim comes up
for everybody to see!!
Plaintiff responds that this motion has no basis in law,
and that blocking service would deny his right to petition the
government and violate his right to due process.
Because the Court will allow the motion to dismiss with
respect to the class of individual defendants who are not
specifically mentioned in the body of the amended complaint,
defendants’ motion will be denied as moot.

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VI. Dismissal with prejudice
Plaintiff has already been permitted to amend his complaint
once to bring it into compliance with the Federal Rules of Civil
Procedure and to include factual allegations pertaining to
defendants’ alleged misdeeds.

Nevertheless, the amended

complaint still fails to state any claim upon which relief can
be granted.

Because the Court will allow the defendants’ motion

to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the dismissal
is “a final decision on the merits, and is thus with prejudice.”
Foran v. Stryker Sales Corp., 2011 WL 652778 at *1 (D. Mass.
Feb. 14, 2011) (citing Acevedo-Villalobos v. Hernandez, 22 F.3d
384, 388 (1st Cir. 1994)).
A district court “should freely give leave [to amend] when
justice so requires.” Fed. R. Civ. P. 15(a)(2).
standard is not met in this case.

That low

Where a movant evinces

futility, bad faith, undue delay, or a dilatory motive,
amendment is not warranted. See Grant v. News Group Boston,
Inc., 55 F.3d 1, 5 (1st Cir. 1995).

Amending a complaint is

futile if the amended complaint “could not withstand a 12(b)(6)
motion to dismiss.” Hatch v. Dep't for Children, Youth & Their
Families, 274 F.3d 12, 19 (1st Cir. 2001) (quoting Rose v.
Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir.
2000)).

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Here, the Court finds that further leave to amend
plaintiff’s complaint would be futile.

His opposition to the

motion to dismiss included new allegations and 20 new exhibits.
That new information does not cure the defects of plaintiff’s
amended complaint and does not help him state a claim upon which
relief can be granted.

Instead, it consists of speculation and

conclusory statements.

Plaintiff’s complaint will be dismissed

in its entirety, with prejudice.
ORDER
For the foregoing reasons, defendant’s motion to dismiss,
(Docket No. 27), is ALLOWED and defendant’s motion to control
service (Docket No. 24) is DENIED AS MOOT.

So ordered.
/s/ Nathaniel M. Gorton____
Nathaniel M. Gorton
United States District Judge
Dated November 7, 2017

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