Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 186

APPENDIX re: 178 MOTION for Summary Judgment filed by Epic Media Group, Incorporated. by Epic Media Group, Incorporated (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13) (Delgado, William)

Exhibit 2

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Only the Westlaw citation is currently available.
United States District Court,
E.D. Michigan,
Southern Division.
William E. BENNETT, Plaintiffs,
v.
America Online, Inc., Time Warner, Inc., TUCOWS, INC., and John Doe, Defendants.
Civil Case No. 06-13221.
July 27, 2007.
William E. Bennett, Mt. Morris, MI, pro se.
William F. Kolakowski, III, Dykema Gossett,
Bloomfield Hills, MI, Krista L. Lenart, Dykema
Gossett, Ann Arbor, MI, Harold Z. Gurewitz, Gurewitz & Raben, Detroit, MI, Rebecca J. Hillyer,
Troy S. Brown, Morgan, Lewis, Philadelphia, PA,
for Defendants.
OPINION AND ORDER OVERRULING OBJECTIONS TO MAGISTRATE JUDGE'S REPORT
AND RECOMMENDATION, ADOPTING RECOMMENDATION, AND GRANTING MOTION
TO DISMISS BY DEFENDANT TIME
WARNER, INC.
DAVID M. LAWSON, United States District
Judge.
*1 This matter is before the Court on objections by the plaintiff to a report filed by Magistrate
Judge Steven D. Pepe recommending that the motion to dismiss filed by defendant Time Warner,
Inc. be granted. This case has been on the magistrate judge's docket pursuant to an order of reference for general case management. After Time
Warner filed its motion to dismiss, the magistrate
judge sought additional information from the
parties and considered matters outside the pleadings. Appropriately, Judge Pepe partially converted
the motion to one for summary judgment under
Rule 56. After the report and recommendation was

filed, the plaintiff filed timely objections, the defendant responded, and the plaintiff replied. The
Court has conducted a de novo review and concludes that the magistrate judge correctly recommended dismissal. The plaintiff alleges in his complaint, later amended, that the defendants infringed
his copyright to a number of screen savers he uploaded through his account with America Online,
Inc. His theory is that Time Warner is liable for
America Online, Inc.'s conduct due to its merger
with America Online, Inc. or, alternatively, because
America Online, Inc. is a subsidiary of Time
Warner. However, as the magistrate judge noted,
the America Online entity with which the plaintiff
dealt did not actually merge with defendant Time
Warner, Inc. Rather, defendant America Online,
Inc., now apparently known as AOL, LLC, is a subsidiary of defendant Time Warner, Inc. Therefore
Time Warner is not directly liable as a successor
organization. Nor has the plaintiff made allegations
sufficient to make out a claim of vicarious liability.
Time Warner's motion to dismiss, therefore, will be
granted.
I.
The plaintiff filed an amended complaint on
October 2, 2006 in which he alleged that he and
AOL had an implied contract pursuant to which the
plaintiff granted AOL a non-exclusive, temporary
software license that allowed AOL to provide his
screen savers to AOL's members. Under this implied contract, AOL was required to protect the
plaintiff's copyright rights and help promote the
plaintiff's business by making the screen savers
available to members. The plaintiff asserts that the
non-exclusive license he granted to AOL contained
a provision that supposedly limited AOL's right to
copy and distribute his screen saver. The plaintiff
uploaded the files at issue to AOL through his AOL
connection, and AOL apparently put these files in
what the plaintiff refers to as the “old screen saver
libraries.” Amend. Compl. ¶ 17, 18, 21.
According to the plaintiff, on July 22, 2003,

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AOL destroyed all links to the old screen saver libraries and no longer made those libraries available
to its members. AOL created a new upload/
download center that was linked to defendant Tucows' website. The plaintiff believes this violated
his copyrights.
The amended complaint contains the following
allegations regarding defendant Time Warner:
6. America On Line, Inc. and Time Warner, Inc.,
are Delaware Corporations that merged into one
entity ... and was known as Defendant AOL Time
Warner, Inc.
*2 ...
10.... The full relationship with Defendant AOL
Time Warner, Inc. and Time Warner, Inc. and
Defendant AOL LLC will have to be confirmed
after discovery.
First Am. Compl. at ¶¶ 6, 10. The plaintiff does
not mention Time Warner anywhere else in the entire complaint. The plaintiff subsequently filed a
second amended complaint on February 5, 2007,
but that pleading was stricken on March 8, 2007 because the plaintiff had not obtained permission to
file it.
On March 16, 2007, the plaintiff filed a motion
seeking permission to file another amended complaint. The proposed third amended complaint contains the following allegations regarding Time
Warner:
6. America On Line, Inc. and Time Warner, Inc.,
are Delaware Corporations that merged into one
entity.

Warner, Inc. and Defendant AOL LLC will have
to be confirmed after discovery....
11. At all times pertinent to this Complaint, Defendant Time Warner, Inc. is a corporation organized, existing, and doing business under and by
the virtue of the laws of Delaware.
...
Count-IX
(Defendant Time Warner, Inc. (f/k/a AOL Time
Warner, Inc.) Vicarious Liability)
81. The afore pled merger was conducted under,
Title 8, Section 251, the laws of the State of
Delaware. (8 Del. C. § 251)
82. As a result of the afore pled merger, on February 4, 2000, the separate existence of the constituent corporations America Online, Inc. and
Time Warner, Inc., ceased as a matter of law under Title 9, Section 259 (8 Del. C. § 259) of the
laws of Delaware.
83. As a result of the afore pled merger, on February 4, 2000, Defendant AOL Time Warner, Inc.
acquired all the rights, duties, liabilities, and
property of AOL, LLC (f/k/a America Online,
Inc.), and Time Warner, Inc. (f/k/a AOL Time
Warner, Inc.), as a matter of law under Title 8,
Seciton 259 (8 Del. C. § 259) of the laws of the
State of Delaware.
84. As a result of the afore pled merger, the Corporate Officers of Time Warner, Inc. (f/k/a AOL
Time Warner, Inc.), also served as Corporation
Officers of AOL, LLC (f/k/a America Online,
Inc.).

...
10. Defendant AOL Time Warner, Inc., (herein
after AOL) is a corporation organized, existing,
and doing business under and by the virtue of the
laws of Delaware .... The full relationship with
Defendant AOL Time Warner, Inc. and Time

85. As a result of the afore pled merger, from
February 4, 2000, to, at least, October 16, 2003,
the two entities AOL, LLC (f/k/a America Online, Inc.) and Time Warner, Inc. (f/k/a AOL
Time Warner, Inc.) was treated as one entity.

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86. The Corporate Officers pled in paragraph 81
above, knew, or should have known, that AOL,
LLC (f/k/a America Online, Inc.) was contracting
with Tucows, Inc., as pled in paragraph 10 above.
87. The afore pled Corporate Officers could have
sought to stop the copyright infringement pled in
Count III above.
88. Defendant Time Warner, Inc. (f/k/a AOL
Time Warner, Inc.), stood to monetarily gain
from the success of AOL, LLC (f/k/a America
Online, Inc.).
*3 89. Defendant Time Warner, Inc. (f/k/a AOL
Time Warner, Inc.) is vicariously liable for AOL,
LLC (f/k/a America Online, Inc.), and the infringement of plaintiff's Copyright.
...
WHEREFORE Plaintiff prays judgment:
I-Money Judgment:
a. On Counts I, II, VIII, and IX, against Defendants AOL, LLC (f/k/a America Online, Inc) and
Time Warner, Inc. (f/k/a AOL Time Warner,
Inc.), jointly and severally, statutory damages in
an amount to be determined at hearing or trial, in
the amount of $300,000.00, but no less than
$300,000.00 (847 infringements x $750 minimum
= $635,250.00) [sic]
...
c. On Count VI, against Defendants AOL, LLC
(f/k/a America Online, Inc) and Time Warner,
Inc. (f/k/a AOL Time Warner, Inc.), compensatory damages in an amount to be determined at
hearing or trial but in no event less than the reasonable value of $20.00 per hour of Plaintiff's upload time from 1999 to July 2003 as determined
from Defendant America Inline [sic], Inc.'s records; and
d. On Count VII, against Defendants AOL, LLC

(f/k/a America Online, Inc) and Time Warner,
Inc. (f/k/a AOL Time Warner, Inc.), compensatory damages in an amount to be determined at
hearing or trial but in no event less then [sic]
$10,000.00; and
e. On Count XIII, against Defendants AOL, LLC
(f/k/a America Online, Inc) and Time Warner,
Inc. (f/k/a AOL Time Warner, Inc.) treble the
amount of damages plaintiff is found to be entitled to (15 USC 15).
...
II-Declaratory Judgment:
i. On Count X, Declaring Defendant Time
Warner, Inc. (f/k/a AOL Time Warner,
Inc.)/AOL, LLC (f/k/a America Online, Inc.)'s
new upload agreement (Exhibit 10 Book of Exhibits) and any like provisions in their adhesive
members contract, known as “Terms of Service,”
(TOS). Null and void as against public policy because the terms of the nonexclusive license
“irrevocable and perpetual” when the whole contract can be terminated at the will of the parties.
i. On Count XI, Declaring Defendants Time
Warner, Inc. (f/k/a AOL Time Warner,
Inc.)/AOL, LLC (f/k/a America Online, Inc.)'s
forum selection clause contained in it's [sic] adhesive 2003 Terms of Service Agreement (TOS)
unconscionable and void as against the public
policy of Michigan because Michigan residents
cannot contract for the venue of post contract
causes of actions.
j. On Count XII, Declaring Defendants Time
Warner, Inc. (f/k/a AOL Time Warner,
Inc.)/AOL, LLC (f/k/a America Online, Inc.)'s
forum selection clause contained in it's [sic] adhesive 1998 Terms of Service Agreement (TOS)
unconscionable and void as against the public
policy of Virginia because it is not conspicuous.
Proposed Third Am. Complaint [dkt # 81]. The
magistrate judge issued an order indicating he will

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not rule on the plaintiff's motion to file this proposed amended complaint until after this Court
rules on the objections.
In order to determine the corporate relationship
between AOL and Time Warner, the magistrate
judge ordered supplemental briefing. Defendant
Time Warner, Inc. filed an affidavit from Katherine
Wychulis, chief corporate counsel for defendant
AOL, LLC [dkt # 71], in which Ms. Wychulis explains the steps taken to combine AOL and Time
Warner. This affidavit is the basis for the magistrate judge's conclusion.
*4 The magistrate judge thoroughly traced the
serpentine history of America Online, Inc.'s and
Time Warner's combination based on evidence that
was not refuted by the plaintiff. That history need
not be repeated here. It is sufficient to summarize
that AOL, LLC is a successor to defendant America
Online, Inc., and it is a subsidiary of AOL Holdings, LLC, which is owned by defendant Time
Warner, Inc., Google, Inc., and TW AOL Holdings,
Inc. (which is wholly-owned by Time Warner,
Inc.). The magistrate judge determined that no merger occurred between the present Time Warner,
Inc., which is a defendant in this case, and AOL,
LLC or its predecessor defendant America Online,
Inc. Rather, AOL, LLC and its predecessors have
always operated independently of defendant Time
Warner, Inc. or as a subsidiary owned by defendant
Time Warner, Inc. Defendant Time Warner, Inc. is
a parent company of AOL, LLC. “[N]o reasonable
jury could find such a merger occurred to form the
basis of corporate successor liability on the part of
Defendant Time Warner, Inc.” R & R at 11. The
Court agrees.
The magistrate then addressed the plaintiff's alternate theories of liability against defendant Time
Warner, Inc. Because the plaintiff contended that
Time Warner, Inc. is the alter ego of America Online, Inc., the magistrate judge commented that to
pierce the veil in Michigan, a plaintiff must show
that (1) the corporate entity was a mere instrumentality of another entity or individual; (2) the corpor-

ate entity was used to commit a fraud or wrong; and
(3) the plaintiff suffered an unjust loss. R & R at 13
(citing Foodlands Distribs., Inc. v. Al-Naimi, 220
Mich.App. 453, 559 N.W.2d 379 (1996). The magistrate disregarded the legal conclusions alleged in
the plaintiff's complaint and considered only the
facts pleaded. Because the plaintiff failed to allege
facts meeting these three requirements, Judge Pepe
concluded that the plaintiff had not alleged sufficient facts to pierce the corporate veil. “The mere
fact that Time Warner's name was once AOL Time
Warner, Inc. does not mean that Time Warner exercised significant control over the actions of its subsidiary, and no such factually supported allegations
appear in Plaintiff's complaints.” R & R at 15.
II.
The plaintiff has four objections to the magistrate judge's report. Taking them in reverse order,
the plaintiff argues that the magistrate judge erroneously concluded that no merger took place. The
plaintiff claims the magistrate judge's decision does
not comport with the evidence. The plaintiff believes AOL, LLC's predecessor company, America
Online, Inc., merged with Time Warner, Inc. # 1 to
form defendant Time Warner # 2's predecessor
AOL Time Warner, Inc. However, the undisputed
evidence contradicts that contention. The plaintiff
has neither pleaded any facts (as opposed to unsupported conclusions) nor offered any information
outside the pleadings to contradict Judge Pepe's
thorough discussion of the organizational history of
the entities involved. This objection, therefore, will
be overruled.
*5 The plaintiff next argues that the defendant's
12(b)(6) motion cannot be granted because the magistrate judge considered matters outside the complaint. The plaintiff claims the magistrate judge's
resolution of factual issues is improper at this point
as no discovery has taken place. This argument has
no merit. Courts may consider public records and
filings with government agencies without converting a motion to dismiss under Rule 12(b)(6) to a
summary judgment motion. Jackson v. City of

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Columbus, 194 F.3d 737, 745 (6th Cir.1999)
(noting that without converting the motion,
“[c]ourts may ... consider public records, matters of
which a court may take judicial notice, and letter
decisions of governmental agencies”), overruled on
other grounds by Swierkiewicz v. Sorema N.A., 534
U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). In
this case, the magistrate judge ordered both sides to
present additional materials well before deciding
the motion, and thereby he gave “all parties ... reasonable opportunity to present all material made pertinent to” the issue, as Rule 12 requires. See Ball v.
Union Carbide Corp., 385 F.3d 713, 719 (6th
Cir.2004).
The plaintiff also states Time Warner has admitted that it merged with America Online, Inc.
The plaintiff cites paperwork Time Warner submitted to the SEC, which states “The Company ... was
formed on February 4, 2000 in connection with the
AOL-Historic TW Merger.” Pl.'s Obj. Ex. 4, SEC
documents at 123. The defendant answered this argument by stating that “[m]any forms of business
combinations are popularly described as mergers.”
Def. Time Warner's Resp. to Obj. at 9. The Court
agrees that a casual remark in the popular media
will not serve to establish a legal conclusion, and
Time Warner's submission using short-hand terms
does not diminish the hard facts determined by
Judge Pepe as to the history of the combination of
the two entities and the resulting subsidiary enterprises.
Lastly, the plaintiff contends that the corporate
veil theory is not applicable to this copyright infringement case, and the magistrate judge erred in
discussing it. Rather, the plaintiff insists, his theory
of liability against Time Warner is based on vicarious liability because Time Warner allegedly
profited from AOL, LLC's infringing activity. The
plaintiff relies heavily on Gordon v. Nextel
Comm'n, 345 F.3d 922, 925 (6th Cir.2003), in support of this objection.
In Gordon, the court of appeals affirmed the
dismissal of a copyright infringement claim based

in part on vicarious liability, and explained the elements of the claim as follows:
Regardless of the defendants' actual knowledge
of the removal or alteration of the copyright information, a party may be held vicariously liable
for the actions of others under certain circumstances within the copyright context. Vicarious liability exists when (1) a defendant has the right
and ability to supervise the infringing conduct
and (2) the defendant has an obvious and direct
financial interest in the infringement. See Shapiro, Bernstein & Co. v. H.L. Green Co., 316
F.2d 304, 307 (2d Cir.1963). These elements are
independent requirements, and each must be
present to render a defendant vicariously liable.
See id. Lack of knowledge of the infringement is
irrelevant. See id. Vicarious copyright liability is
an “outgrowth” of the common law doctrine of
respondeat superior, which holds the employer liable for the acts of its agents. Fonovisa, Inc. v.
Cherry Auction, Inc., 76 F.3d 259, 262 (9th
Cir.1996). However, vicarious liability extends
beyond the traditional scope of the master-servant theory. See Nimmer on Copyright, § 12.04.
As long as the required elements are presented, a
defendant may be liable, even in the absence of a
traditional employer-employee relationship. See
id.
*6 Nextel, 345 F.3d at 925. The plaintiff contends that even if America Online, Inc. (now AOL,
LLC) is a subsidiary of Time Warner, Inc., Time
Warner's status as parent to America Online, Inc. is
sufficient grounds to find liability. The plaintiff
states that a parent company can be held vicariously
liable if it can supervise the actions of its subsidiary
and has a financial interest in the subsidiary.
However, the plaintiff states the requirements too
broadly and fails to acknowledge that the supervision and financial interest must be in the infringing
activity. “Vicarious liability exists when (1) a defendant has the right and ability to supervise the infringing conduct and (2) the defendant has an obvious and direct financial interest in the infringe-

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ment.” Nextel, 345 F.3d at 925 (emphasis added).
The “right and ability to supervise” means
more than simply owning some or all of the shares
of stock in a company. The cases finding vicarious
liability usually deal with much more day-to-day
control than just the parent-subsidiary relationship.
See, e.g. King Records, Inc. v. Bennett, 438
F.Supp.2d 812, 852 (M.D.Tenn.2006) (finding an
individual vicariously liable for a business's infringement when the individual defendant was the
sole shareholder of the business, “made all final decisions, and was ultimately responsible for anything
that happened at [the business]”); Microsoft Corp.
v. Sellers, 411 F.Supp.2d 913 (E.D.Tenn.2006)
(finding individual owner vicariously liable for infringement where he was “the sole owner of the
company and was responsible for the overall operation of the business and its day to day operations[,
and] was the primary, if not sole, moving force behind the illegal acts of the business”); Jobete Music
Co., Inc. v. Johnson Commc'ns, Inc., 285 F.Supp.2d
1077, 1084 (S.D.Ohio 2003) (finding majority owner of radio station vicariously liable for infringement where his duties “include supervising the station staff ... [through which] station employees report to the Department Heads, and these supervisors, including the Program and Music Director,
who is responsible for selecting the programming
for the station, report to him”). Compare these
cases to Banff Ltd. v. Limited, Inc., 869 F.Supp.
1103 (S.D.N.Y.1994), where the court dismissed
vicarious liability claims on summary judgment because the plaintiff had alleged nothing more than
the parent company's ownership of its subsidiary.
“Simply [being] the parent is not enough.” Rather,
“the plaintiff must show that the parent ... has the
right and ability to supervise the subsidiary, which
is evidenced by some continuing connection
between the two in regard to the infringing activity.” Id. at 1110. See also Goes Lithography Co. v.
Banta Corp., 26 F.Supp.2d 1042, 1045
(N.D.Ill.1998) (holding that bare allegations that
the infringer is a wholly-owned subsidiary of the
parent is insufficient to establish vicarious liability;

the plaintiff “must allege facts which show a continuing connection between the parent and the subsidiary to the infringing activities to make out a
case for vicarious liability”).
*7 Regarding the financial benefit aspect of the
test, Ellison v. Robertson, 357 F.3d 1072 (9th
Cir.2004), found no financial benefit accrued to
America Online, Inc. when an infringer uploaded
the plaintiff's short story onto a file-sharing network that America Online, Inc. allowed its users to
access. The plaintiff alleged that the defendant
Robertson uploaded short stories written by the
plaintiff to USENET, a peer-to-peer network. Because America Online, Inc. provides its subscribers
with access to USENET, the plaintiff alleged that
America Online, Inc. was vicariously liable. The
court of appeals rejected this claim, finding no financial benefit to America Online, Inc.:
We note that there is no evidence that indicates
that AOL customers either subscribed because of
the available infringing material or canceled subscriptions because it was no longer available.
While a causal relationship might exist between
AOL's profits from subscriptions and the infringing activity taking place on its USENET
servers, Ellison has not offered enough evidence
for a reasonable juror so to conclude.
Ellison, 357 F.3d at 1079.
The plaintiff's first amended complaint contains no factual allegations on these two factors.
The complaint alleges only that America Online,
Inc. and Time Warner merged. First Am. Compl. at
¶ 6. There are no facts in the complaint from which
the Court could conclude that Time Warner had the
right to supervise America Online, Inc.'s destruction of the screen saver libraries or the creation of a
new upload/download center linked to Tucows'
website. The parent/subsidiary relationship alone is
not sufficient to show the ability to supervise.
The plaintiff has not alleged that Time Warner
somehow profited by America Online, Inc.'s al-

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leged infringement of his copyright in these screen
savers. In fact, it's hard to see how Time Warner
could possibly have profited through America Online, Inc.'s copying of a few free screen savers.
“[T]here is no evidence that indicates that [Time
Warner or AOL] customers either subscribed because of the available infringing material or canceled subscriptions because it was no longer available.” Ellison, 357 F.3d at 1079. Although the defendant's motion originally was styled as a motion
to dismiss, there are not even any allegations in the
first amended complaint that this is the case.
The proposed second amended complaint does
little in the pleading of facts to shore up these deficiencies. On the question of the right and ability to
supervise the infringing conduct, the plaintiff alleges only that there are overlapping corporate officers among Time Warner and AOL, LLC, and the
two companies were treated as one entity. On the
financial interest issue, the plaintiff alleges only
that Time Warner stood to profit from AOL, LLC's
success. These allegations do not satisfy the two
elements necessary for a claim of vicarious liability. The plaintiff's objection on this ground, therefore, must be rejected.
III.
*8 The plaintiff's objections to Magistrate
Judge Pepe's report and recommendation lack merit. The proposed amendment to the complaint does
not alter the Court's view with respect to defendant
Time Warner, Inc.
Accordingly, it is ORDERED that the petitioner's objections to the magistrate judge's report and
recommendation [dkt # 76] are OVERRULED.
It is further ORDERED that the report and recommendation [dkt # 73] is ADOPTED.
It is further ORDERED that the motion to dismiss filed by defendant Time Warner, Inc. [dkt # 9]
is GRANTED.
It is further ORDERED that the Time Warner,

Inc. is DISMISSED from the case as a defendant.
It is further ORDERED that the matter is referred to the magistrate judge to conduct all additional pretrial matters, including disposition of
pending motions. The Court requests a report on the
items docketed as numbers 51, 61, 67, and 81 by
the end of August 2007.
REPORT AND RECOMMENDATION
STEVEN D. PEPE, United States Magistrate Judge.
On September 15, 2006, Defendant Time
Warner filed its Fed.R.Civ.P. 12(b)(6) motion to
dismiss Plaintiff's Complaint against it, arguing that
Plaintiff's Complaint contains no allegations of
wrongdoing against Time Warner (Dkt.# 9). On the
same date, Defendants AOL LLC and Time Warner
filed a motion to dismiss or transfer this case to the
Eastern District of Virginia pursuant to 28 U.S.C. §
1404(a), because of a forum selection clause contained in Plaintiff's Terms of Service Agreement
with AOL (Dkt.# 11). The jurisdictional issue was
dealt with first, and after multiple submissions and
judicial determinations, this matter was finally resolved on February 12, 2007, in this Court's denial
of Defendants' motion for reconsideration of its
earlier order denying such a transfer (Dkt.# 60).
Once it was finally determined that this forum
would decide the merits of Plaintiff's claims, Defendant Time Warner's Rule 12(b)(6) motion to dismiss for failure to state a claim against it was
scheduled for hearing. On February 21, 2007, a
hearing was held to determine and understand the
relevant ownership and management status of
America Online, Inc., for the relevant time period
and the evolution of American Online, Inc., and
Time Warner, Inc., AOL Holdings LLC and TW
AOL Holdings, Inc., and their relation to Time
Warner, Inc. All pre-trial matters were referred to
the undersigned for general case management
(Dkt.# 16). Because the present motion seeks dismissal of a party, this matter is being handled under
28 U.S.C. § 636(b)(1)(B). For the reasons stated below, it is RECOMMENDED that Defendant Time
Warner's 12(b) (6) motion to dismiss be GRAN-

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TED.
I. Procedural History
After Defendant Time Warner filed its
Fed.R.Civ.P. 12(b)(6) motion to dismiss Plaintiff's
Complaint against it, Plaintiff filed his first
Amended Complaint on October 2, 2006 (Dkt.#
18), and his response to Defendant's 12(b)(6) motion on October 4, 2006 (Dkt.# 19). Defendant
Time Warner subsequently filed its October 16,
2006, reply brief (Dkt.# 28) to which Plaintiff filed
an October 20, 2006, sur-reply (Dkt.# 32). On January 31, 2007, Plaintiff filed his motion for leave to
file another sur-reply brief opposing Defendant
Time Warner's motion to dismiss (Dkt.# 56) and on
February 5, 2007, Plaintiff filed his second
Amended Complaint (Dkt.# 58).
*9 Because matters outside the pleadings were
earlier submitted on Defendant's motion, and further clarification was needed to resolve the current
motion, prior to the February 21, 2007, hearing,
both parties were ordered to provide supplemental
filings which would describe in detail, through the
use of declarations under 28 U.S.C. § 1746(2) and
organizational “berry” charts displaying the ownership and management status of America Online,
Inc., for the relevant time period and the evolution
of American Online, Inc., Time Warner, Inc., AOL
Holdings LLC and TW AOL Holdings, Inc., and
their relation to Time Warner, Inc. These submissions are referred to herein as Dkt. # 69, filed on
February 22, 2007 (Plaintiff's Submissions) and
Dkt. # 71, filed on February 27, 2007 (Defendant
Time Warner's Submissions). Because “matters outside the pleadings are presented” and considered on
the corporate structures of the various entities, this
Rule 12(b)(6) motion can be “treated as one for
summary judgment and disposed of as provided in
Rule 56.” Fed.R.Civ.P. 12(b).
II. Background Facts
A. Alleged Cause of Action
As set forth in Plaintiff's Complaint, Plaintiff is

author and owner of the copyrighted audiovisual
works “Pheasants in Flight Screen Saver” and
“Solitude Screen Saver.” America Online, Inc.,
(now AOL LLC) is an Internet Service Provider of
which Plaintiff was a subscriber. (Dkt. # 1, ¶¶ 7,
FN1
10; Dkt. # 11, p. 6
). Pursuant to contract, Defendant Tucows provided third-party Internet services to America Online, Inc., including but not
limited to providing America Online, Inc., with certain uploading and downloading services, providing
certain content for download on the America Online, Inc., site by America Online, Inc. members,
and categorizing and indexing such content in a
format designated by America Online, Inc. (Dkt.#
7, ¶ 8).
FN1. Page number reflects ECF pagination.
America Online, Inc., maintained a center for
its members through which they could upload and
download software, thereby sharing software with
other members (Dkt.# 1, ¶ 11). Plaintiff indicates
that he granted America Online, Inc., a nonexclusive software licence to use his software for
the downloading and personal use of its members
subject to the following restrictions:
The uploader claims and guarantees to have full
and clear copyright to this work. This work is for
personal use of downloading member and may
not be modified, distributed, etc. in whole or in
part. This work cannot be uploaded to any electronic system or BBS or included in any compact
disk (CD-ROM) or collection of any kind without
the written permission from the uploader. To do
so places the user at legal risk of sever [sic] fines
and penalties for copyright infringement.
Plaintiff notes that this made his software
available to America Online, Inc.'s “20,000,000+”
members (Dkt.# 1, ¶ 17).
On or about July 23, 2003, Plaintiff claims that
America Online, Inc. destroyed the old libraries
containing the software and created a new upload/

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download center, which continued to make available for download Plaintiff's software. In doing so,
Plaintiff alleges that America Online, Inc. exceeded
the software license he had provided them and violated his copyright because it did not adequately inform him of the change in procedure (Dkt.# 1, ¶ ¶
17, 19, 20). This new center contained content
provided by Tucows, including content that Tucows
received from America Online, Inc., categorized
and indexed, and returned to America Online, Inc.,
for the center.
*10 Further, Plaintiff alleges that his copyrighted software was made available on Tucows'
own Internet site. He claims that Tucows distributed his “Pheasants in Flight” screen saver to at
least 4 people and his “Solitude” screen saver to at
least 3 people. Plaintiff alleges that therefore America Online, Inc., and Tucows are liable for copyright infringement. (Dkt.# 1, ¶¶ 23, 26, 30, 33-35).
Tucows denies the content available for download
on America Online, Inc.'s internet site was ever
“piped” through Tucows' Internet site (Dkt.# 7).
Plaintiff's claims against Defendant Time Warner,
Inc. is based on its 2000 “merger” with AOL LLC's
predecessor, American Online, Inc. Prior to alleged
copyright infringements in 2003. Thus, the core of
the contentions against Defendant Time Warner,
Inc., is whether it is a merged successor corporation
to America Online, Inc., or whether it is, as it contends, a parent corporation of a subsidiary corporation now known as AOL LLC, which is a separate
successor corporation to America Online, Inc. As
noted below. the details of the 2000 “merger” of
Time Warner, Inc., and America Online, Inc. is sufficiently complex that any confusion as to the Defendants' corporate structure by Plaintiff and others
is fully understandable.
B. Corporate Structure and History
On June 12, 1989, Time Warner, Inc. (“Time
Warner # 1” for identification purposes only), was
incorporated in Delaware (See, Ex. B). On May 24,
1985, America Online, Inc. (“America Online Inc.
# 1” for identification purposes only), was incor-

porated in Delaware. In January 2000, an announcement was made regarding the combination
of Time Warner # 1 and America Online Inc. # 1.
On February 4, 2000, a new corporate entity known
as AOL Time Warner, Inc., was incorporated in
Delaware. Legal entities known as Time Warner
Merger Sub, Inc. (“Time Warner Merger Sub”) and
America Online Merger Sub, Inc. (“America Online
Merger Sub”) were also incorporated in Delaware
on March 22, 2000 as wholly owned subsidiaries of
AOL Time Warner, Inc. On January 11, 2001, Time
Warner Merger Sub was merged into Time Warner
# 1 and America Online Merger Sub was merged
into America Online Inc. # 1. As a result of these
two mergers, Time Warner # 1 and America Online
Inc. # 1 became wholly owned subsidiaries of AOL
Time Warner, Inc.
In October 2003, AOL Time Warner, Inc.,
changed its name to Time Warner, Inc. (“Time
Warner # 2” for identification purposes only). Time
Warner # 2, which is a defendant in this case, thus
became the parent corporation of America Online
Inc. # 1.
Thus, the Time Warner, Inc. # 1 and America
Online Inc. # 1 “merger” was accomplished by creating a new corporate entity, AOL Time Warner,
Inc., and two wholly owned “Merger Sub” entities,
that thereafter merged with Time Warner Inc. # 1
and America Online Inc. # 1, making Time Warner
Inc. # 1 and America Online Inc. # 1 subsidiaries of
the newly formed parent corporation, AOL Time
Warner, Inc., which successor corporation, Time
Warner Inc. # 2 has been named as a Defendant in
this litigation.
*11 On April 3, 2006, America Online Inc. # 1
converted to a Delaware limited liability company
and changed its name to AOL LLC. AOL LLC is a
subsidiary of AOL Holdings LLC, which is owned
by Time Warner Inc. # 2 (2.5%), Google, Inc. (5%),
and TW AOL Holdings, Inc. (92.5%). TW AOL
Holdings, Inc., which is a Virginia corporation, is
wholly-owned by Time Warner Inc. # 2. Thus, Defendant AOL LLC is 2.5% directly owned by Time

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Warner, Inc. # 2, and 92.5% indirectly owned by
Time Warner Inc. # 2's wholly owned subsidiary,
TW AOL Holdings, Inc., and 5% directly owned by
Google, Inc. (Lou Costello might ask at this time
FN2
“who's on first?”
)
FN2. Who's on First? by Abbott and Costello,
http://www.baseball-almanac.com/humor4.s
html
AOL LLC was granted a certificate of authority
to transact business or conduct affairs in Michigan
as a foreign corporation on November 8, 2006.
On May 12, 2006, another legal entity known
as America Online, Inc. (“America Online Inc. # 2
for identification purposes only), was incorporated
in Delaware. According to the declaration of Katherine Wychulis, Chief Corporate Counsel for Defendant AOL LLC., America Online Inc. # 2 was
formed, in part, to preserve the name America Online, Inc. (See, Dkt # 71). America Online Inc. # 2
was granted a certificate of authority to transact
business or conduct affairs in Michigan as a foreign
corporation on December 7, 2006. It was formed
after the alleged wrongdoings involved in this case,
it is not a Defendant, and this information is
provided for purposes of thorough disclosure of the
various “America Online” and “AOL” corporate iterations.
III. ANALYSIS
A. The Legal Standards
(1) Legal Standards for Motions to Dismiss
Fed. R. Civ. P 12(b) permits dismissal for
“failure to state a claim upon which relief can be
granted.” “The purpose of Rule 12(b)(6) is to allow
a defendant to test whether, as a matter of law, the
plaintiff is entitled to legal relief even in everything
alleged in the complaint is true.” Mayer v. Mylod,
988 F.2d 635, 638 (6th Cir.1993). When deciding a
motion under that Rule, “[t]he court must construe
the complaint in the light most favorable to the

plaintiff, accept all factual allegations as true, and
determine whether the plaintiff undoubtedly can
prove no set of facts in support of his claims that
would entitle him to relief.” Cline v. Rogers, 87
F.3d 176, 179 (6th Cir.1996). “A judge may not
grant a Rule 12(b)(6) motion based on a disbelief of
a complaint's factual allegations.” Columbia Natural Res., Inc. v. Tatum, 58 F.3d 1101, 1109 (6th
Cir.1995). “However, while liberal, this standard of
review does require more than the bare assertion of
legal conclusions.” Ibid. “In practice, ‘a ... complaint must contain either direct or inferential allegations respecting all the material elements to sustain a recovery under some viable legal theory.’ “
In re DeLorean, 991 F.2d 1236, 1240 (6th
Cir.1993) (emphasis in original) (quoting Scheid v.
Fanny Farmer Candy Shops, Inc., 859 F.2d 434,
436 (6th Cir.1988)). See also, Morgan v. Church's
Fried Chicken, 829 F.2d 10, 12 (6th Cir.1987)
(liberal Rule 12(b)(6) review is not afforded legal
conclusions and unwarranted factual inferences);
Ana Leon T. v. Federal Reserve Bank, 823 F.2d
928, 930 (6th Cir.1987) (per curiam) (mere conclusions are not afforded liberal Rule 12(b)(6) review).
(2) Legal Standards for Summary Judgment
*12 In the present case certain factual issues
concerning corporate organization need be resolved
prior to and in relation to a determination of whether Plaintiff has stated a claim against Defendant
Time Warner, Inc. Under Fed.R.Civ.P. 56, summary judgment is to be entered if the moving party
demonstrates there is no genuine issue as to any
material fact. The Supreme Court has interpreted
this to mean that summary judgment should be
entered if the evidence is such that a reasonable
jury could find only for the moving party. Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct.
2505, 91 L.Ed.2d 202 (1986). The moving party has
“the burden of showing the absence of a genuine issue as to any material fact.” Adickes v. S.H. Kress
& Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26
L.Ed.2d 142 (1970). See also Lenz v. Erdmann
Corp., 773 F.2d 62 (6th Cir.1985). In resolving a
summary judgment motion, the Court must view

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the evidence in the light most favorable to the nonmoving party. See Duchon v. Cajon Co., 791 F.2d
43, 46 (6th Cir.1986); Bouldis v. United States Suzuki Motor Corp., 711 F.2d 1319 (6th Cir.1983).
But as the Supreme Court wrote in Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91
L.Ed.2d 265 (1986):
[T]he plain language of Rule 56(c) mandates the
entry of summary judgment, after adequate time
for discovery and upon motion, against a party
who fails to make a showing sufficient to establish the existence of an element essential to that
party's case, and on which that party will bear the
burden of proof at trial. In such a situation, there
can be “no genuine issue as to any material fact,”
since a complete failure of proof concerning an
essential element of the non-moving party's case
necessarily renders all other facts immaterial. The
moving party is “entitled to a judgment as a matter of law” because the non-moving party has
failed to make a sufficient showing on an essential element of her case with respect to which she
has the burden of proof.
Moreover, when a motion for summary judgment is filed, the adverse party may not merely rely
“upon the mere allegations or denials of the adverse
party's pleading, but ... by affidavits or as otherwise
provided in this rule, must set forth specific facts
showing that there is a genuine issue for trial.”
Fed.R.Civ.P. 56(e).
B. Factual Analysis
1. The Alleged “Merger”
In Plaintiff's complaints and briefs, he has alleged Defendant Time Warner's liability, both
based on an alleged merger between America Online Inc. # 1 and Time Warner Inc. # 1, and alternatively on an alter-ego or vicarious liability theory
in which he alleges Time Warner Inc. # 2 (formerly
AOL Time Warner, Inc.) should be held liable for
the acts of its subsidiary AOL LLC (formerly
FN3
American Online Inc. # 1).
In preparation for a

February 21, 2007, hearing regarding the relevant
ownership and management status of America Online, Inc., both parties submitted supplemental filings to the Court, which describe through the use of
declarations and “berry” charts the ownership and
management status of America Online, Inc., for the
relevant time period and the evolution of American
Online, Inc., Time Warner, Inc., AOL Holdings
LLC and TW AOL Holdings, Inc., and their relation to Time Warner, Inc. These submissions made
clear that America Online Inc. # 1, the internet service provider Plaintiff alleges is liable for copyright
infringement and other related claims, did not
merge in February 2000 with Time Warner # 1 to
form AOL Time Warner, Inc. (now Time Warner,
Inc. # 2).
FN3. Plaintiff claims that as a result of the
alleged merger, Defendant Time Warner,
Inc. # 2 acquired all the rights, duties, liabilities, and property of th alleged wrongdoer America Online, Inc. # 1.
*13 As described above, on June 12, 1989,
Time Warner, Inc. (“Time Warner Inc. # 1”) was
incorporated in Delaware. On May 24, 1985, American Online, Inc. (“America Online Inc. # 1) was
incorporated in Delaware. In January 2000, an announcement was made regarding the combination
of Time Warner # 1 and America Online Inc. # 1
and on February 4, 2000, a new entity known as
AOL Time Warner, Inc. was incorporated in
Delaware. Legal entities known as Time Warner
Sub, Inc. (“Time Warner Merger Sub”) and America Online Merger Sub, Inc. (“America Online Merger Sub”) were incorporated in Delaware on March
22, 2000. Time Warner Merger Sub and America
Online Merger Sub were formed as wholly owned
subsidiaries of AOL Time Warner, Inc. On January
11, 2001, Time Warner Merger Sub was merged into Time Warner, Inc. # 1 and America Online Merger Sub was merged into America Online, Inc. # 1.
As a result of these two mergers, Time Warner Inc.
# 1 and America Online, Inc. # 1 became wholly
owned subsidiaries of AOL Time Warner, Inc. In

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October 2003, AOL Time Warner, Inc. changed its
name to Time Warner, Inc. (“Time Warner, Inc. #
2”).
It is therefore clear that throughout America
Online Inc. # 1's corporate history it has operated
either independent of Time Warner Inc. # 1 or as a
subsidiary directly (2.5%) and indirectly (92/5%)
owned by AOL Time Warner, Inc. (now Time
Warner, Inc. # 2). Plaintiff's alleged harm occurred
in 2003, well after the February 2000 formation of
AOL Time Warner, Inc., and well after America
Online Inc. # 1 became a subsidiary of AOL Time
Warner, Inc. The October 2003 name change of
AOL Time, Inc., to Time Warner, Inc. (“Time
Warner, Inc. # 2”), has no relevant effect in this
matter. This name change back to “Time Warner,
Inc.” (which may cause confusion with the former
Time Warner Inc. # 1) does not provide any evidence of an actual corporate merger or subsequent liability. Defendant Time Warner (“Time Warner
Inc. # 2”) has provided virtually undisputed evidence that clearly establishes a merger between
America Online Inc. # 1 and Time Warner, Inc. # 1
never occurred in the traditional sense, and that
Time Warner Inc. # 2 is actually parent corporation
of the separate alleged corporate wrongdoer, AOL
LLC (formerly America Online, Inc. # 1). Thus, it
is clear that no reasonable jury could find could
find such a merger occurred to form the basis of
corporate successor liability on the part of Defendant Time Warner, Inc. Thus, it is recommended that
summary judgment be granted on the issue that Defendant Time Warner is a parent corporation of
AOL LLC (formerly America Online Inc. # 1). It is
further recommended that based on this factual
judgment, Defendant Time Warner be dismissed
from this case for lack of any successor corporate
liability based on an alleged, but ultimately unfounded, merger.
2. Vicarious Liability
Plaintiff has also alleged that Defendant Time
Warner is vicariously liable for the acts of America
Online Inc. # 1 under an alter ego theory (Dkt.# 18,

¶ 6). Plaintiff's claim is most fully explained in his
second Amended Complaint (Dkt. # 58; Plaintiff's
first Amended Complaint was filed October 2, 2006
(Dkt. # 18)), which Defendants have moved to
strike, because Plaintiff failed to properly obtain
leave of the Court to file as required under
Fed.R.Civ.P. 15(a), nor did Plaintiff obtain Defendants' consent to the filing (Dkt.# 66). In this disputed second Amended Complaint, Plaintiff alleges
that Defendant Time Warner Inc. # 2 is vicariously
liable as a result of the “merger on February 4,
2000” (Dkt. # 58, Count IX). He claims that as a
result of the merger, from February 4, 2000, to at
least October 16, 2003, the two entities America
Online Inc. # 1 and Time Warner Inc. # 1 were
treated as one entity, with the same corporate officers, and that the corporate officers pled in paragraph 81 of his second Amended Complaint knew,
or should have known, that American Online Inc. #
1 was contracting with Tucows, Inc. Moreover, he
states that Defendant Time Warner Inc. # 2 stood to
gain financially from the success of America Online Inc. # 1.
*14 As discussed in the previous section, a
merger between America Online Inc. # 1 and Time
Warner Inc. # 1 never occurred in the traditional
sense. Rather, on January 11, 2001, America Online
Inc. # 1 became a wholly owned subsidiary of a
newly formed corporation, AOL Time Warner, Inc.,
and in October 2003, this newly formed AOL Time
Warner, Inc., changed its name to Time Warner,
Inc. (“Time Warner # 2”). On April 3, 2006, America Online, Inc. # 1 converted to a Delaware limited
liability company and changed its name to AOL
LLC. AOL LLC is a subsidiary of AOL Holdings,
LLC, which is owned by Time Warner, Inc. # 2
(2.5%), Google, Inc. (5%) and TW AOL Holdings,
Inc. (92.5%) (TW AOL Holdings, Inc., a Virginia
corporation, is wholly owned by Time Warner, Inc.
# 2). AOL LLC was granted a certificate of authority to transact business or conduct affairs in
Michigan as a foreign corporation on November 8,
2006.

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Because a traditional “merger” did not occur
between America Online Inc. # 1 and Time Warner
Inc. # 1, and because Time Warner # 2 is not a successor corporation of Time Warner Inc. # 1 (rather,
Time Warner # 2 is the parent company of Time
Warner # 1, as well as the parent corporation of
subsidiary AOL LLC), the only manner in which
Time Warner, Inc. # 2 can be held liable for the alleged actions of its subsidiary America Online, Inc.
# 1, is by piercing the corporate veil.
Under Michigan law, there is a presumption
that the corporate form will be respected. Seasword
v. Hilti, 449 Mich. 542, 537 N.W.2d 221, 224
(1995) (citing Herman v. Mobile Homes Corp., 317
Mich. 233, 26 N.W.2d 757, 761 (1947)). “This presumption, often called the ‘corporate veil,’ may be
pierced only where an otherwise separate corporate
existence has been used to ‘subvert justice or cause
a result that [is] contrary to some overriding public
policy.’ “ Id. (alteration in original) (quoting Wells
v. Firestone, 421 Mich. 641, 364 N.W.2d 670, 674
(1984)). Michigan courts will not pierce the corporate veil unless: (1) the corporate entity was a mere
instrumentality of another entity or individual; (2)
the corporate entity was used to commit a fraud or
wrong; and (3) the plaintiff suffered an unjust loss.
Foodland Distribs. v. Al-Naimi, 220 Mich.App.
453, 559 N.W.2d 379, 381 (1996) (citing SDC
Chem. Distribs., Inc. v. Medley, 203 Mich.App.
374, 512 N.W.2d 86, 90 (1994)); see also Gledhill
v. Fisher & Co., 272 Mich. 353, 262 N.W. 371, 372
(1935). The propriety of piercing the corporate veil
is highly dependent on the equities of the situation,
and the inquiry tends to be intensively fact-driven.
Kline v. Kline, 104 Mich.App. 700, 305 N.W.2d
297, 299 (1981) (per curiam); see Herman, 26
N.W.2d at 761 (“In determining whether the corporate entity should be disregarded and the parent
company held liable on the contracts of its subsidiary because the latter served as a mere instrumentality or adjunct of the former, each case is sui generies and must be decided in accordance with its
own underlying facts.”).

*15 Mr. Bennett has had no direct dealings
with Defendant Time Warner Inc. # 2, (nor with
Time Warner Inc.# 1). and all of his claims arise
out of his dealings with America Online Inc. # 1
(now AOL LLC). Mr. Bennett does not allege that
Defendant Time Warner's shareholders have failed
to treat Time Warner Inc. # 2 and AOL LLC as separate entities. Nor does he allege that recognition of
Time Warner as a separate entity will cause him
any injustice, or that its incorporators acted with
FN4
fraudulent intent.
Instead, Mr. Bennett tries to
conflate two separate corporate entities with a conclusory allegation that Time Warner's majorityowned subsidiary AOL, LLC is merely an “alter
ego” of Time Warner.
FN4. At the hearing on this motion, counsel for Time Warner, Inc., and for AOL
LLC (formerly America Online, Inc.) assured the Court that AOL LLC is an entity
sufficiently capitalized and solvent to pay
any judgment that might be rendered in
this litigation. Plaintiff does not challenge
this assertion nor allege that Defendant
Time Warner, Inc., must be treated as an
alter ego to avoid the injustice of his having a claim, which if reduced to judgment
against AOL LLC, could not be collected.
Dismissal of claims against a parent corporation for failure to state a claim is appropriate where,
as here, the Plaintiff has failed to make allegations
sufficient to satisfy the elements of a veil piercing
claim. In Southeast Texas Inns, Inc. v. Prime Hospitality Corp., 462 F.3d 666 (6th Cir.2006), the
Sixth Circuit recently granted a parent corporation's
motion to dismiss a suit arising out of a subsidiary's
alleged breach of a contract. In that case, dismissal
under Fed.R.Civ.P. 12(b)(6) was granted because
the complaint failed to “allege that [the parent corporation] was ‘involved in an elaborate shell game
or [was] otherwise abusing the corporate form to
effect a fraud.’ “ Id. at 680 (citations omitted). The
Court further noted that the complaint contained
“no averment that ‘the corporation [is] a sham and

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exist[s] for no other purpose than as a vehicle for
fraud.’ “ Id. (citations omitted). See also, Seasword
449 Mich. 542, 537 N.W.2d 221 (claim against parent corporation dismissed; plaintiff failed to allege
that the parent and subsidiary had “abused their
presumably separate and distinct corporate
forms.”).
Moreover, the Court can disregard statements
contained in Plaintiff's complaints and briefs that
are unsupported by any factual allegations. See
Blackburn v. Fisk Univ., 443 F.2d 121, 124 (6th
Cir.1971) (granting motion to dismiss, and noting
that “[t]here are no facts alleged in support of the
conclusions, and we are required to accept only
well pleaded facts as true, not the legal conclusions
that may be alleged or that may be drawn from the
pleaded facts.”) (citations omitted). See also Botsford General Hosp. v. United Amer. Healthcare
Corp., 2003 WL 22850448 at *2 (Mich.App.2003)
(holding that allegations regarding common directors and officers and “financing and expense matters” were insufficient to establish veil-piercing
claim). The mere fact that Time Warner's name was
once AOL Time Warner, Inc., does not mean that
Time Warner exercised significant control over the
actions of its subsidiary, and no such factually supported allegations appear in Plaintiff's complaints.
As the Supreme Court has recognized, “[i]t is a
general principle of corporate law deeply ‘ingrained
in our economic and legal systems” that a parent
corporation (so-called because of control through
ownership of another corporation's stock) is not liable for the acts of its subsidiaries.” U.S. v. Bestfoods, 524 U.S. 51, 61, 118 S.Ct. 1876, 141
L.Ed.2d 43 (1998) (citations omitted). Given that
Time Warner and AOL LLC are separate corporate
entities, and Plaintiff has made no allegations that
would justify piercing Time Warner's corporate
veil, Defendant Time Warner should be dismissed
from this action.
IV. RECOMMENDATION
*16 For the reasons stated above, IT IS RECOMMENDED that summary judgment be gran-

ted on the factual issue that Defendant Time
Warner is not a successor corporation of America
Online, Inc., but is rather a parent corporation of
AOL LLC (formerly America Online, Inc.) and IT
IS FURTHER RECOMMENDED that Defendant
Time Warner's motion to dismiss be GRANTED
and that TIME WARNER BE DISMISSED as a
party to this action.
The parties to this action may object to and
seek review of this Report and Recommendation,
but are required to file any objections on or before
March 16, 2007, hereof as provided for in 28
U.S.C. § 636(b)(1) and E.D. Mich. LR 72.1(d)(2).
Failure to file specific objections constitutes a
waiver of any further right of appeal. Thomas v.
Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435
(1985); Howard v. Sec'y of Health and Human
Servs., 932 F.2d 505 (6th Cir.1991); United States
v. Walters, 638 F.2d 947 (6th Cir.1981). Filing of
objections which raise some issues but fail to raise
others with specificity, will not preserve all the objections a party might have to this Report and Recommendation. Willis v. Sec'y of Health and Human Servs., 931 F.2d 390, 401 (6th Cir.1991);
Smith v. Detroit Fed'n of Teachers Local, 231, 829
F.2d 1370,1373 (6th Cir.1987). Pursuant to E.D.
Mich. LR 72.1(d)(2), a copy of any objections is to
be served upon this Magistrate Judge.
Within ten (10) days of service of any objecting party's timely filed objections, the opposing
party may file a response. The response shall be not
more than twenty (20) pages in length unless by
motion and order such page limit is extended by the
Court. The response shall address specifically, and
in the same order raised, each issue contained within the objections. If the Court determines any objections are without merit, it may rule without
awaiting the response to the objections.
E.D.Mich.,2007.
Bennett v. America Online, Inc.
Not Reported in F.Supp.2d, 2007 WL 2178317
(E.D.Mich.)

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END OF DOCUMENT

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