Handshoe v. Perret et al

Filing 157

ORDER granting Defendant Ashoka's 94 Motion to Dismiss; granting in part and denying in part Defendants Vaughn Perret and Charles Leary's 96 Motion to Dismiss; and denying Slabbed New Media, LLC's 101 Motion to Intervene. Signed by District Judge Halil S. Ozerden on September 19, 2017. (ENW)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
SOUTHERN DIVISION
DOUGLAS HANDSHOE
v.
VAUGHN PERRET, et al.

§
§
§
§
§
§
§

PLAINTIFF
Civil No. 1:15CV382-HSO-JCG
DEFENDANTS

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT
ASHOKA’S [94] MOTION TO DISMISS; GRANTING IN PART AND
DENYING IN PART DEFENDANTS VAUGHN PERRET AND CHARLES
LEARY’S [96] MOTION TO DISMISS; AND DENYING SLABBED
NEW MEDIA, LLC’S [101] MOTION TO INTERVENE
BEFORE THE COURT are three Motions: (1) a Motion to Dismiss [94] filed
by Defendant Ashoka; (2) a Motion to Dismiss [96] filed by Defendants Vaughn
Perret and Charles Leary; and (3) a Motion to Intervene [101] filed by Slabbed New
Media, LLC. These Motions are fully briefed.
After due consideration of the Motions, the related pleadings, the record, and
relevant legal authority, the Court finds that Ashoka’s Motion to Dismiss [94]
should be granted, that Perret and Leary’s Motion to Dismiss [96] should be
granted in part and denied in part, and that Slabbed New Media, LLC’s Motion to
Intervene [101] should be denied. All of Plaintiff’s claims should be dismissed
except for the misrepresentation claims pursuant to 17 U.S.C. § 512(f) against
Defendants Progress Media Group Limited and Marilyn Smulders contained in
Count 3 of the Third Amended Complaint and against Defendants Charles Leary
and Trout Point Lodge in Count 5. These two claims will remain.

I. BACKGROUND
A.

Procedural History
Plaintiff Douglas Handshoe (“Plaintiff” or “Handshoe”) alleges that he is the

publisher of Slabbed New Media, LLC’s “regionally noted website.” 3d Am. Compl.
[90] at 3. Plaintiff has been embroiled in litigation for years with certain of the
Defendants in this case in various courts throughout the United States and Canada.
According to the Third Amended Complaint, which is the operative pleading here,
Trout Point Lodge Ltd. (“Trout Point Lodge”), Charles Leary (“Leary”), Vaughn
Perret (“Perret”), and Daniel Abel (“Abel”)1 have commenced three defamation suits
against Plaintiff in his personal capacity in Nova Scotia, Canada. Id. at 11, 13.2
The Third Amended Complaint alleges that Defendants sent certain
“takedown notices” pursuant to 17 U.S.C. § 512, which is part of the Digital
Millennium Copyright Act (“DMCA”),3 “in an attempt to force Plaintiff, as Publisher
1

The Court has now dismissed Plaintiff’s claims against Abel pursuant to Federal
Rule of Civil Procedure 4(m).
2

See also, e.g., Trout Point Lodge, Limited v. Handshoe, 729 F.3d 481 (5th Cir.
2013); Perret v. Handshoe, No. 1:16cv7-LG-RHW (S.D. Miss. Jan. 7, 2016); Perret v.
Handshoe, 1:14cv241-LG-JCG (S.D. Miss. June 11, 2014); Handshoe v. Abel, No. 1:14cv159KS-MTP (S.D. Miss. Apr. 10, 2014); Handshoe v. John Does aka “Randall Cajun,” No.
1:13cv254-HSO-RHW (S.D. Miss. June 12, 2013); Handshoe v. Broussard, No. 1:13cv251LG-JMR (S.D. Miss. June 11, 2013); Slabbed New Media, LLC v. Trout Point Lodge,
Limited, No. 1:12cv38-HSO-RHW (S.D. Miss. Feb. 8, 2012).
3

The United States Court of Appeals for the Ninth Circuit has described takedown
notices as follows:
Section 512(c) permits service providers, e.g., YouTube or Google, to avoid
copyright infringement liability for storing users’ content if—among other
requirements—the service provider “expeditiously” removes or disables access
to the content after receiving notification from a copyright holder that the
content is infringing. 17 U.S.C. § 512(c) . . . . The procedures outlined in §

-2-

and agent for Slabbed New Media, LLC to take down constitutionally protected free
speech in the form of journalistic posts to the Slabbed New Media LLC website . . .
.” Id. at 4. Plaintiff maintains that these takedown notices were “directed to a
Mississippi legal business entity and ultimately its publisher/owner in his personal
capacity, creating impacts on the business of that entity and its publisher in his
personal capacity, including causing injury leading to damages . . . .” Id. at 4-5.
Plaintiff maintains that the posts in question constituted journalistic
reporting in the public interest related to a “massive political corruption scandal,
resulting criminal investigation, conviction and incarceration of former Jefferson
Parish[, Louisiana,] President Aaron Broussard,” id. at 2, and that some posts were

512(c) are referred to as the DMCA’s “takedown procedures.”
To avoid liability for disabling or removing content, the service provider must
notify the user of the takedown. Id. § 512(g)(1)–(2). The user then has the
option of restoring the content by sending a counter-notification, which must
include a statement of “good faith belief that the material was removed or
disabled as a result of mistake or misidentification . . . .” Id. § 512(g)(3)(C).
Upon receipt of a valid counter-notification, the service provider must inform the
copyright holder of the counter-notification and restore the content within “not
less than 10, nor more than 14, business days,” unless the service provider
receives notice that the copyright holder has filed a lawsuit against the user
seeking to restrain the user’s infringing behavior. Id. § 512(g)(2)(B)–(C). The
procedures outlined in § 512(g) are referred to as the DMCA’s “put-back
procedures.”
If an entity abuses the DMCA, it may be subject to liability under § 512(f). That
section provides: “Any person who knowingly materially misrepresents under
this section—(1) that material or activity is infringing, or (2) that material or
activity was removed or disabled by mistake or misidentification, shall be liable
for any damages . . . .” Id. § 512(f). Subsection (1) generally applies to copyright
holders and subsection (2) generally applies to users.
Lenz v. Universal Music Corp., 815 F.3d 1145, 1151 (9th Cir. 2015), as amended Mar. 17,
2016.

-3-

parodies created by Slabbed New Media, LLC, or third parties who gave express
consent for Slabbed New Media, LLC, to publish the works. See, e.g., id. at 22, 29,
40-44, 48.
However, according to the Third Amended Complaint, “Plaintiff in his
personal capacity had no connection to the illustrative use of the photographs in
question.” Id. at 29. Slabbed New Media, LLC, as a journalistic website, and
Plaintiff as publisher of that website, used “the creative works in the context of a
public interest news story . . . and journalistic reporting in the public interest . . . .”
Id.
Plaintiff filed a pro se Civil Complaint for Damages, Declaratory, and
Injunctive Relief [1] in this Court on November 16, 2015. Plaintiff has since filed
three amended pleadings, two of which were filed after obtaining leave of Court to
do so. The operative pleading is now the Third Amended Complaint [90], which
advances eight counts of misrepresentation pursuant to 17 U.S.C. § 512(f) related to
takedown notices dated from December 2012 to January 2016. 3d Am. Compl. [90]
at 33-47.
The Third Amended Complaint also seeks certain declarations, including
that: (1) “to the extent Defendants own any valid copyright interest in the creative
works in questions [sic] or have claimed to own any valid copyrights, Defendants
have misused such copyrights rendering those Copyrights as unenforceable,” id. at
49; (2) Plaintiff’s “use of the photographs in question as agent for Slabbed New
Media, LLC is lawful under the fair use doctrine and does not infringe on any of the

-4-

Defendants’ copyrights,” id. at 50; (3) “as a matter of law [Plaintiff] has no liability
in his personal capacity over content belonging to a third party in which he acts as
agent pursuant to the Mississippi Limited Liability Act,” id.; and (4) “as a matter of
law each and every component judgment rendered in the case styled, Trout Point
Lodge et al. v. Douglas Handshoe, Nova Scotia Supreme Court No. 41135 is
REPUGNANT TO THE CONSTITUTION OF THE UNITED STATES OF
AMERICA and unenforceable in the United States of America,” under the Securing
the Protection of our Enduring and Established Constitutional Heritage Act, 28
U.S.C. § 4101, et seq. (“SPEECH Act”), id. at 52.
B.

The takedown notices at issue
In total, nine takedown notices are at issue here. Each is summarized in a

separate count of the Third Amended Complaint.4
1.

The December 13 and 14, 2012, and February 18, 2014, takedown
notices (Counts 1, 2, and 6)

Counts 1, 2, and 6 of the Third Amended Complaint assert claims under §
512(f) against Leary, Perret, Abel, Trout Point Lodge, and Ashoka,5 related to
takedown notices dated December 13, 2012; December 14, 2012; and February 18,
2014, respectively. 3d Am. Compl. [90] at 33-36, 41-44. With respect to the
4

Two takedown notices are the subject of one count, Count 8. 3d Am. Compl. [90]

at 45-47.
5

According to the Third Amended Complaint, Ashoka “is a not for profit corporation
formed under the laws of the state of Virginia . . . .” 3d Am. Compl. [90] at 4. The pleading
also mentions the “Ashoka Change Makers website” twice. See id. at 33, 35. Although it is
not clear from the record, it appears that Ashoka publishes a magazine and related website
and owns some of the copyrights which were the subject of certain of the takedown notices
at issue. See, e.g., id. at 33-35.

-5-

December 13, 2012, notice, Plaintiff asserts that
Leary as authorized by Ashoka and in coordination with Perret and Abel,
filed a DMCA takedown notice with Automattic, Inc. asserting ownership
of a creative work posted to the Slabbed New Media website that have
[sic] alternatively previously been subject to DMCA takedown notices by
both Ashoka and the Trout Point Criminal Enterprise. This image in
question was previously litigated in Nova Scotia Canada . . . . The
resulting judgment was denied comity by this Court on December 19,
2012.
Id. at 13-14; see also Notice [1-3] at 10-11 (DMCA Notice sent by Leary on December
13, 2012).6
The December 13, 2012, takedown notice related to “a photograph from the
Ashoka Change Makers website . . . .” 3d Am. Compl. [90] at 33. The image for
which Leary sent the takedown notice was an image of Leary and Perret, see Notice
[96-11] at 1, which
appeared in the post, Slabbed solves the mystery on the shores of the
Tusket River in Nova Scotia as we reveal the Trout Point connection to the
Jefferson Parish political Corruption Scandal published on September 8,
2011 which is found [on the slabbed.org website,]
Id. at 14 n.4.
Count 2 asserts a § 512(f) claim for an initial takedown notice sent by Leary
on December 14, 2012, which “dealt with the same image” as the December 13,
2012, notice. 3d Am. Compl. [90] at 14 n.4; see also Notice [1-3] at 21-22. Leary
sent “separate notices for both the cropped original and scaled versions of that
cropped original designed for mobile device optimization.” 3d Am. Compl. [90] at 14

6

The Third Amended Complaint repeatedly refers to the “Trout Point Criminal
Enterprise,” see, e.g., 3d Am. Compl. [90] at 11, 13, 14, 15, 19, 22-24, 29, 30, 33, 35, 38, 41,
42, which it seems to define as Perret, Leary, and Abel, id. at 15.

-6-

n.4.
As for Count 6, Leary allegedly submitted a takedown notice on February 18,
2014, which
represented that Publisher Handshoe and Slabbed New Media, LLC’s
republication with permission of parodies created by third parties
unconnected to the Trout Point Lodge Criminal Enterprise that were
published to the Slabbed New Media website with the express consent of
the creators of the works in question and for creative works previously
subject to multiple takedown notices submitted by Ashoka, the National
Geographic Society and Progress Media/Marilyn Smulders infringed on
copyrights owned by Ashoka, the National Geographic Society, Charles
Leary, Vaughn Perret and Daniel Abel d/b/a Trout Point Lodge Ltd. on
whose behalf’s [sic] Defendant Leary swore he was authorized to act.
3d Am. Compl. [90] at 41-42. At issue were “Slabbed New Media, LLC posts” that
“were published to the Slabbed New Media website . . . .” Id. at 42.
Plaintiff alleges that each Slabbed New Media, LLC post is a “self-evident
non-infringing fair use,” id. at 33, 35, 42, and that he had no connection to these
postings in his individual capacity, id. However, Plaintiff asserts that he incurred
damages when the service providers terminated access to the Slabbed New Media,
LLC, posts that were subject to these takedown notices. Id. at 34, 36, 43-44.
2.

The Second December 14, 2012, takedown notice (Count 3)

Count 3 raises a claim under § 512(f) against Progress Media and Smulders.
3d Am. Compl. [90] at 36. Plaintiff refers to Progress Media as a Canadian media
outlet with which Smulders is apparently associated, although there is little
information in the record as to the identity of these two foreign Defendants, neither
of whom has entered an appearance in this case. Id. at 23.
The Third Amended Complaint alleges that “[t]he Takedown Notice of
-7-

December 14, 2012 represented that Publisher Handshoe and Slabbed New Media,
LLC’s post infringed copyrights owned by Progress Media Group Limited and
Marilyn Smulders on whose behalf the Canadian lawyer swore he was authorized to
act.” Id. at 36-37. The post was a “picture of defendants Leary, Perret and Abel
that was posted to the Slabbed New Media website . . . .” Id. at 15. Plaintiff again
claims “[t]he Slabbed New Media, LLC posts is [sic] a self-evident non-infringing
fair use under 17 U.S.C. § 107,” and that “Plaintiff Handshoe had no connection to
those postings in his personal capacity.” Id. at 37. Plaintiff asserts that he
incurred damages as a result of Progress Media and Smulder’s misrepresentations,
and that “[s]uch injury includes, but is not limited to, the financial and personal
expenses associated with responding to the claim of infringement and harm to
Plaintiff’s free speech rights under the First Amendment.” Id. at 38.
3.

The December 31, 2012; April 1, 2014; and January 15 and 18, 2016,
takedown notices (Counts 4, 7, and 8)

Counts 4, 7, and 8 advance claims under § 512(f) against Leary, Perret, Abel,
and Trout Point Lodge related to takedown notices dated December 31, 2012; April
1, 2014; January 15, 2016; and January 18, 2016. 3d Am. Compl. [90] at 38-40, 4447. Leary submitted the December 31, 2012, takedown notice as to two alleged
“copyrighted works being infringed on slabbed.org,” see Notice [1-3] at 5, which is
the basis of Count 4, and the April 1, 2014, takedown notice related to “three
creative works subject to infringing publication at www.slabbed.org,” see Notice [9611] at 12, which is the basis of Count 7.
Count 8 references two takedown notices–one sent on January 15, 2016, and
-8-

another on January 18, 2016. 3d Am. Compl. [90] at 45. According to Plaintiff,
[o]n January 15, 2016[,] Trout Point Lodge owner Charles Leary, using
the DMCA Takedown request form provided by Slabbed New Media,
LLC’s reverse proxy provider CloudFlare, sent a DMCA Takedown notice
to them [sic] . . . . CloudFlare is a reverse proxy provider which serves
but only indirectly hosts the Slabbed New Media website.
* * *
On January 18, 2016 defendants Charles Leary and Vaughn Perret
submitted a complaint to Amazon Web Services (AWS), hosting provider
of Slabbed New Media, LLC. AWS construed this complaint as a DMCA
Takedown notice. This takedown notice duplicated the takedown notices
of January 15, 2016 . . . .
Id. at 27, 28.
Plaintiff maintains that each Slabbed New Media, LLC, post is a self-evident
non-infringing fair use under 17 U.S.C. § 107. Id. at 38, 44, 46. As to Counts 4 and
7, the Third Amended Complaint states that “Plaintiff Handshoe had no connection
to those postings in his individual capacity.” Id. at 39, 46.
4.

The February 15, 2014, takedown notice (Count 5)

Count 5 advances a claim under § 512(f) against Leary, Perret, Abel, and
Trout Point Lodge, related to a February 15, 2014, takedown notice. 3d Am. Compl.
[90] at 40. Count 5 asserts that
[t]he Takedown Notice of February 15, 2014 represented that the Slabbed
New Media, LLC parody created by and published to YouTube by
Publisher Handshoe infringed on copyrights owned by Charles Leary,
Vaughn Perret and Daniel Abel d/b/a Trout Point Lodge Ltd. on whose
behalf Defendant Leary swore he was authorized to act.
Id. According to Plaintiff, “[t]he Slabbed New Media, LLC parody that included a
photographs [sic] Trout Point criminal Conspirators is a self-evident non-infringing
fair use under 17 U.S.C. § 107.” Id.

-9-

Plaintiff argues that “Defendants violated 17 U.S.C. § 512(f) by knowingly
[and] materially misrepresenting that the Slabbed New Media, LLC posting
infringed on their copyrights,” and that the misrepresentations “were material to
YouTube’s decision to require Plaintiff disable [sic] access to the Slabbed New
Media, LLC video . . . causing Plaintiff to incur damages.” Id. at 41. “Such injury
includes, but is not limited to, the financial and personal expenses associated with
responding to the claim of infringement and harm to Plaintiff's free speech rights
under the First Amendment.” Id.
Leary submitted the takedown notice to YouTube for this video, as director of
Trout Point Lodge, Limited, and listed Trout Point Lodge, Limited, as the copyright
owner. Notice [96-11] at 10-11. Plaintiff has supplied a screen shot of this YouTube
video, which was published on May 6, 2013. Screen Shot [111-4] at 2. The opening
of the video is depicted as: “Slabbed The Alternative New Media for the Gulf
South.” Id. At the bottom left of the video, the screen states “Slabbed: No Fear
Journalism,” and “Doug Handshoe.” Id.
C.

The Parties’ Pending Motions
Defendants in this case have previously filed Motions to Dismiss, see Mots.

[14], [34], [47], [55], [64], [75], to which Plaintiff responded in part by requesting
leave to amend his pleadings, see Mots. for Leave [29], [82]. The Court has twice
denied Defendants’ Motions without prejudice and granted Plaintiff leave to amend
his Complaint in order to attempt to cure defects in his pleadings. See Orders [43],
[89].

-10-

On February 9, 2017, Defendant Ashoka filed a Motion to Dismiss [94]
pursuant to Federal Rule of Civil Procedure 12(b)(6), on grounds that the Third
Amended Complaint fails to state a claim against Ashoka. Mot. [94] at 1. On
February 15, 2017, Defendants Perret and Leary filed a Motion to Dismiss [96]
pursuant to Federal Rules of Civil Procedure 9(b), 12(b)(1), and 12(b)(6). Perret and
Leary take the position that the Third Amended Complaint should be dismissed
under Rule 12(b)(1) because Plaintiff lacks standing to bring his claims, and
alternatively on grounds that dismissal is warranted under Rule 12(b)(6). Mot. [96]
at 1. These Motions to Dismiss [94], [96] are fully briefed.
On February 17, 2017, Slabbed New Media, LLC, filed a Motion to Intervene
[101] as a party Plaintiff pursuant to Federal Rule of Civil Procedure 24(a)(2). Mot.
[101] at 1. Alternatively, Slabbed New Media, LLC, seeks to intervene under Rule
24(b)(1)(B). Id. Ashoka, Perret, and Leary oppose this Motion [101]. See Resps.
[105], [107]; Mems. [106], [108].
II. DISCUSSION
A.

Perret and Leary’s Motion to Dismiss [97] the Third Amended Complaint
should be granted in part and denied in part.
Perret and Leary ask the Court to dismiss the Third Amended Complaint

pursuant to Federal Rule of Civil Procedure 12(b)(1), arguing that Plaintiff lacks
standing. Mem. [97] at 9. Perret and Leary alternatively seek dismissal pursuant
to Rule 12(b)(6), for failure to state a claim.
1.

Federal Rule of Civil Procedure 12(b)(1)

When faced with a Rule 12(b)(1) motion to dismiss for lack of subject-matter
-11-

jurisdiction,
a trial court has the power to dismiss for lack of subject matter
jurisdiction on any one of three separate bases: (1) the complaint alone;
(2) the complaint supplemented by undisputed facts evidenced in the
record; or (3) the complaint supplemented by undisputed facts plus the
court’s resolution of disputed facts.
Crane v. Johnson, 783 F.3d 244, 250 (5th Cir. 2015) (quotation omitted). “[T]he
jurisdictional issue of standing is a legal question,” and “[t]he party invoking federal
jurisdiction bears the burden of establishing standing.” Id. (quotation omitted). In
this case, in resolving whether the Court has subject-matter jurisdiction, it has
relied upon the Third Amended Complaint supplemented by undisputed facts
evidenced in the record. See id.
2.

Federal Rule of Civil Procedure 12(b)(6)

To survive a motion to dismiss filed pursuant to Rule 12(b)(6), “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, 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).
In considering a Rule 12(b)(6) motion, a court must accept all well-pleaded
facts as true and view those facts in the light most favorable to plaintiff. KingWhite v. Humble Indep. Sch. Dist., 803 F.3d 754, 758 (5th Cir. 2015). Mere labels
and conclusions, or a “formulaic recitation of the elements of a cause of action will

-12-

not do.” Bosarge v. Miss. Bureau of Narcotics, 796 F.3d 435, 439 (5th Cir. 2015)
(quoting Iqbal, 556 U.S. at 678). “Nor does a complaint suffice if it tenders naked
assertion[s] devoid of further factual enhancement.” Id. (quoting Iqbal, 556 U.S. at
678) (alteration in original). “The court’s task is to determine whether the plaintiff
has stated a legally cognizable claim that is plausible, not to evaluate the plaintiff's
likelihood of success.” Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594
F.3d 383, 387 (5th Cir. 2010).
When resolving a Rule 12(b)(6) motion to dismiss, a court “may consider the
complaint, its proper attachments, documents incorporated into the complaint by
reference, and matters of which a court may take judicial notice.” Doe v. United
States, 853 F.3d 792, 800 (5th Cir. 2017), as revised (Apr. 12, 2017). The Court has
not considered any evidence supplied by the parties outside of the pleadings that
the Court is not permitted to consider under Rule 12(b)(6). The Court therefore has
not considered evidence such as Plaintiff’s Affidavit [111-1]; thus it need not treat
these Motions to Dismiss as ones for summary judgment. See Fed. R. Civ. P. 12(d).
3.

Article III and statutory standing

Perret and Leary’s Motion [96] contends that Plaintiff lacks both
constitutional and prudential standing to pursue this case. See Mem. [97] at 9-11
(citing cases and making arguments as to both constitutional and prudential
requirements for standing). To establish standing under a particular statute, a
plaintiff must satisfy both constitutional and prudential requirements. St. Paul
Fire & Marine Ins. Co. v. Labuzan, 579 F.3d 533, 539 (5th Cir. 2009).

-13-

a.

Article III Standing

“Article III of the United States Constitution limits the jurisdiction of federal
courts to actual ‘Cases’ and ‘Controversies.’” Crane, 783 F.3d at 251 (citing U.S.
Const., art. III, § 2). Article III standing requires “plaintiffs to allege such a
personal stake in the outcome of the controversy as to justify the exercise of the
court’s remedial powers on their behalf.” Town of Chester, N.Y. v. Laroe Estates,
Inc., 137 S. Ct. 1645, 1650 (2017) (quotation omitted).
According to the United States Supreme Court,
[t]o establish Article III standing, the plaintiff seeking compensatory
relief must have (1) suffered an injury in fact, (2) that is fairly traceable
to the challenged conduct of the defendant, and (3) that is likely to be
redressed by a favorable judicial decision.
Id. (quotation omitted). A plaintiff, as the party invoking federal jurisdiction, bears
the burden of establishing the three elements of Article III standing. Spokeo, Inc. v.
Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016). “Where, as here, a
case is at the pleading stage, the plaintiff must clearly allege facts demonstrating
each element.” Id. (quotation omitted).
“Implicit in the first requirement of Article III standing is the notion that the
injury in fact is particularized to the Plaintiffs.” Abbott v. BP Expl. & Prod., Inc.,
851 F.3d 384, 388 (5th Cir. 2017) (citing Spokeo, Inc., 136 S. Ct. at 1548). “At the
pleading stage, allegations of injury are liberally construed.” Little v. KPMG LLP,
575 F.3d 533, 540 (5th Cir. 2009). General factual allegations of injury resulting
from a defendant’s conduct may suffice when resolving a motion to dismiss because
courts “presume that general allegations embrace those specific facts that are
-14-

necessary to support the claim.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)
(quotation omitted); see also Little, 575 F.3d at 540.
The Supreme Court has emphasized that “standing is not dispensed in
gross.” Town of Chester, N.Y., 137 S. Ct. at 1650 (quotation omitted). Instead, “a
plaintiff must demonstrate standing for each claim he seeks to press and for each
form of relief that is sought.” Id. A court must, where necessary, raise the question
of Article III standing sua sponte. Ford v. NYLCare Health Plans of Gulf Coast,
Inc., 301 F.3d 329, 332 (5th Cir. 2002).
b.

Statutory or Prudential Standing

Whether a plaintiff lacks standing under a governing federal statute
implicates prudential or statutory standing, and “statutory standing is not
indicative of Article III jurisdictional standing.” Camsoft Data Systems, Inc. v.
Southern Electronics Supply, Inc., 756 F. 3d 327, 332 (5th Cir. 2014). “Prudential
standing requirements exist in addition to the immutable requirements of Article
III as an integral part of judicial self-government.” Superior MRI Servs., Inc. v. All.
Healthcare Servs., Inc., 778 F.3d 502, 504 (5th Cir. 2015) (quotation omitted).
Prudential standing requirements are judicially created limits that
concern whether a plaintiff’s grievance arguably falls within the zone of
interests protected by the statutory provision invoked in the suit, whether
the complaint raises abstract questions or a generalized grievance more
properly addressed by the legislative branch, and whether the plaintiff is
asserting his or her own legal rights and interests rather than the legal
rights and interests of third parties.
Logan v. Burgers Ozark Country Cured Hams, Inc., 263 F.3d 447, 460 n.9 (5th Cir.
2001) (quotation omitted); see also Superior MRI Services, Inc., 778 F.3d at 504

-15-

(“One principle of prudential standing requires that a plaintiff generally must
assert his own legal rights and interests, and cannot rest his claim to relief on the
legal rights or interests of third parties.”) (quotation omitted).
The Supreme Court has held that “the label ‘prudential standing’ [is]
misleading, for the requirement at issue is in reality tied to a particular statute.”
Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302 (2017). “The
question is whether the statute grants the plaintiff the cause of action that he
asserts.” Id. In answering that question, the Supreme Court “presume[s] that a
statute ordinarily provides a cause of action only to plaintiffs whose interests fall
within the zone of interests protected by the law invoked.” Id. (quotation omitted).
“Whether a plaintiff comes within ‘the zone of interests’ is an issue that requires [a
court] to determine, using traditional tools of statutory interpretation, whether a
legislatively conferred cause of action encompasses a particular plaintiff's claim.”
Id. at 1302-03 (quotation omitted).
If a plaintiff’s claim falls within the zone of interests of the statute, a court
must next consider the question of causation, that is “whether the harm alleged has
a sufficiently close connection to the conduct the statute prohibits.” Id. at 1305
(quotation omitted). “[P]roximate cause generally bars suits for alleged harm that
is too remote from the defendant’s unlawful conduct.” Id. at 1306 (quotation
omitted).
4.

17 U.S.C. § 512(f)

Section 512(f) provides that

-16-

[a]ny person who knowingly materially misrepresents under this section-(1)
that material or activity is infringing, or
(2)
that material or activity was removed or disabled by mistake or
misidentification,
shall be liable for any damages, including costs and attorneys’ fees,
incurred by the alleged infringer, by any copyright owner or copyright
owner’s authorized licensee, or by a service provider, who is injured by
such misrepresentation, as the result of the service provider relying upon
such misrepresentation in removing or disabling access to the material
or activity claimed to be infringing, or in replacing the removed material
or ceasing to disable access to it.
17 U.S.C. § 512(f) (emphasis added).7
Plaintiff’s § 512(f) misrepresentation claims in Counts 1 through 8 of the
Third Amended Complaint assert that he and Slabbed were alleged infringers of
various copyrights purportedly owned by Ashoka, Progress Media, Smulders,
Torstar, the National Geographic Society, Leary, Perret, Abel, and Trout Point
Lodge, but that each of Plaintiff and Slabbed’s posts was a non-infringing fair use of
such copyright under 17 U.S.C. § 107. 3d Am. Compl. [90] at 33, 35, 36-37, 38, 40,
41-42, 44, 45-46. In Counts 6 and 7, Plaintiff maintains that he and Slabbed
republished parodies to the Slabbed website created by third parties, with the
express permission of the creators of the works in question. Id. at 41-44.

7

The statute defines “service provider” as a provider of online services or network
access, or the operator of facilities therefor. 17 U.S.C. § 512(k)(1)(B). A “service provider”
includes
an entity offering the transmission, routing, or providing of connections for
digital online communications, between or among points specified by a user, of
material of the user’s choosing, without modification to the content of the
material as sent or received.
17 U.S.C. § 512(k)(1)(A).

-17-

5.

The Third Amended Complaint contains enough general factual
allegations of injury to establish Article III standing as to Counts 1
through 8.

The § 512(f) misrepresentation claims set forth in Counts 1 through 8 of the
Third Amended Complaint relate to takedown notices aimed at Automattic, Inc.,
New Dream Network, YouTube, HostGator LLC, CloudFlare, and Amazon Web
Services, which were acting as service providers for Slabbed New Media, LLC. See
3d Am. Compl. [90] at 33-47. In some of these Counts, Plaintiff specifically
disavows any “connection to those postings in his individual capacity.” Id. at 33, 35,
37, 39, 42, 46.
Having thoroughly reviewed the Third Amended Complaint, however, Counts
1 through 8 contain general factual allegations that the purported
misrepresentations made to the service providers caused Plaintiff to incur damages,
including financial and personal expenses associated with responding to the claim
of infringement. See id. at 34, 36, 38, 40, 41, 43-44, 45, 47. Construing the Third
Amended Complaint liberally since Plaintiff is proceeding pro se, the Court finds
that these general factual allegations of injury resulting from Defendants’ conduct
are sufficient to demonstrate Article III standing at the pleading stage. See Lujan,
504 U.S. at 561; Little, 575 F.3d at 540.
6.

Plaintiff lacks statutory standing to pursue the claims in Counts 1, 2,
4, 6, 7, and 8.

Section 512(f) permits recovery of damages by “the alleged infringer, by any
copyright owner or copyright owner’s authorized licensee, or by a service provider,
who is injured” by knowing material misrepresentations contained in takedown
-18-

notices. 17 U.S.C. § 512(f). As the Court has stated, the misrepresentation claims
referenced in Counts 1, 2, 4, 6, 7, and 8 of the Third Amended Complaint relate to
takedown notices directed to service providers for websites published by Slabbed
New Media, LLC, not by Plaintiff individually. See 3d Am. Compl. [90] at 33-40, 4147; see also Takedown Notices [96-11] at 1-23. The takedown notices referenced
Uniform Resource Locators (“URLs”) or web addresses for Slabbed’s posts. See
Takedown Notices [96-11] at 1-23. Plaintiff has further disavowed any “connection
to those postings in his individual capacity.” 3d Am. Compl. [90] at 33, 35, 39, 42,
46.
Plaintiff’s personal or individual claims in Counts 1, 2, 4, 6, 7, and 8 do not
arguably fall within the zone of interests protected by § 512(f), as the takedown
notices related to those Counts were directed to a third party, Slabbed’s, published
posts, not to those of Plaintiff individually. Section 512(f) therefore does not “grant
[Plaintiff] the cause of action that he asserts.” Bank of Am. Corp., 137 S. Ct. at
1302; see also Logan, 263 F.3d 447, 460 n.9. Nor is Plaintiff pursuing his own legal
rights and interests in these Counts. Instead, Plaintiff is asserting the legal rights
and interests of Slabbed New Media, LLC. See Logan, 263 F.3d 447, 460 n.9; see
also Superior MRI Services, Inc., 778 F.3d at 504. Plaintiff lacks statutory standing
to assert the claims in Counts 1, 2, 4, 6, 7, and 8 on his own, individual behalf, and
these claims will be dismissed as to all Defendants.8 See Nat’l Solid Waste Mgmt.
8

Count 3 asserts a § 512(f) misrepresentation claim against Progress Media and
Smulders, see 3d Am. Compl. [90] at 36-38, both of whom are in default, see Clerk’s Entry of
Default [150] at 1. The parties have not directed the Court to a copy of the December 14,
2012, takedown notice which is the subject of this claim. This Count will proceed.

-19-

Ass’n v. Pine Belt Reg’l Solid Waste Mgmt. Auth., 389 F.3d 491, 498 (5th Cir. 2004).
7.

Plaintiff arguably has constitutional and statutory standing to advance
the § 512(f) misrepresentation claim contained in Count 5, but Count 5
does not contain sufficient factual allegations to withstand the Rule
12(b)(6) challenge as to Perret.

While it is not completely clear, it appears that the February 15, 2014,
takedown notice which is the subject of Count 5 was sent to YouTube and may have
related to a video created by Slabbed New Media, LLC, but published to Plaintiff’s
own personal YouTube channel. The video was purportedly “a parody created and
owned by Slabbed New Media, LLC hosted by YouTube.” 3d Am. Compl. [90] at 22.
The subject of the video is unclear from the record.
Plaintiff has submitted a screen shot of the video, which could be construed
as being posted on his own YouTube account. Screen Shot [111-4] at 2. Plaintiff
argues that the screen shot demonstrates that the video was “published by Plaintiff
to his personal YouTube account,” and that it was “taken down from YouTube for
several weeks.” Mem. [112] at 5. To the extent Plaintiff incurred damages in his
personal capacity as an alleged infringer as a result of an alleged knowing and
material misrepresentation by a Defendant, Plaintiff would arguably have both
Article III and statutory standing to pursue the claim in Count 5.
While Plaintiff may have standing and has stated a claim as to Leary, Count
5 nevertheless fails to state a claim for misrepresentation upon which relief may be
granted as to Perret. Section 512(f) provides that any person who knowingly
materially misrepresents that material or activity is infringing shall be liable for
certain damages incurred as a result of the service provider relying upon such
-20-

misrepresentation in removing or disabling access to the material or activity
claimed to be infringing. See 17 U.S.C. § 512(f).
The Third Amended Complaint alleges that Leary knowingly and materially
misrepresented to YouTube in the February 15, 2014, takedown notice that
Plaintiff’s posting on his YouTube account infringed copyrights owned by Leary,
Perret, and Abel, doing business as Trout Point Lodge. 3d Am. Compl. [90] at 4041. A copy of this takedown notice, which was incorporated into the Third Amended
Complaint by reference, was supplied by Perret and Leary in support of their
Motion to Dismiss, Notice [96-11] at 10-11, and can be considered by the Court in
resolving the Motion under Rule 12(b)(6), Doe, 853 F.3d at 800. The takedown
notice reflects that it was submitted to YouTube by Leary, as director of Trout Point
Lodge, Limited, which is listed as the copyright owner. Notice [96-11] at 10-11.
The Third Amended Complaint does not plausibly allege a knowing, material
misrepresentation by Perret. There are no facts stated in Count 5 to suggest that
Perret had any personal involvement in this particular takedown notice.
Accordingly, Plaintiff has not stated a claim for relief under § 512(f) as to Perret
individually. The Motion to Dismiss will be granted to the extent it seeks dismissal
of Count 5 as to Perret.
As for Leary, liberally construing Plaintiff’s pro se Third Amended Complaint
as a whole and assuming all well-pleaded facts are true, and assuming there was a
takedown by YouTube under § 512(f),9 Count 5 contains sufficient factual matter to
9

At one point in the Third Amended Complaint, Plaintiff alleges that YouTube
disabled access to the posts containing the media identified in the February 15, 2014,

-21-

state a plausible claim for misrepresentation against Leary under 17 U.S.C. §
512(f). Count 5 will proceed as to Leary and Trout Point Lodge, which has not yet
appeared in this action.
8.

The request for declaratory relief contained in Count 9 will be
dismissed for lack of subject-matter jurisdiction.

Count 9 of the Third Amended Complaint seeks declaratory relief pursuant to
the Declaratory Judgment Act, 28 U.S.C. § 2201, et seq., and 17 U.S.C. § 102(b), and
alleges misuse of copyright as to all Defendants. 3d Am. Compl. [90] at 48-49.
Plaintiff requests a declaration that “to the extent Defendants own any valid
copyright interest in the creative works in questions [sic] or have claimed to own
any valid copyrights, Defendants have misused such copyrights rendering those
Copyrights [sic] as unenforceable.” Id. at 49.
Under the Declaratory Judgment Act, “in any actual controversy within its
jurisdiction,” a district court “may declare the rights and other legal relations of any

notice. 3d Am. Compl. [90] at 22. However, Count 5 charges that “[t]he misrepresentations
contained in the Takedown Notice and service of a Canadian Injunction the United States
Courts had previously found unenforceable were material to YouTube’s decision to require
Plaintiff disable access to the Slabbed New Media, LLC video that were [sic] subject of the
Takedown Notice causing Plaintiff to incur damages.” Id. at 41. The parties have not cited
any controlling authority on whether this action by YouTube constitutes a takedown under
§ 512(f), which contemplates “the service provider relying upon such misrepresentation in
removing or disabling access to the material or activity claimed to be infringing . . . .” 17
U.S.C. § 512(f).
The record reflects that on February 19, 2014, YouTube responded to this takedown
notice, requesting more information from Leary as to Trout Point lodge, the corporate entity
identified as the copyright holder in the takedown notice. Notice [96-11] at 10. YouTube
explained to Leary that “the content will remain live on the site until we have received this
verification . . . .” Id. It is unclear what happened after YouTube’s response. The parties
have not sufficiently briefed this issue, and at this juncture, liberally construing Plaintiff’s
pro se pleadings, the Court finds that Plaintiff has stated a plausible claim under § 512(f)
as to Leary.

-22-

interested party seeking such declaration, whether or not further relief is or could
be sought.” 28 U.S.C. § 2201(a).
When considering a declaratory judgment action, a district court must
engage in a three-step inquiry. First, the court must determine whether
the declaratory action is justiciable. Typically, this becomes a question
of whether an “actual controversy” exists between the parties to the
action. See Rowan Companies, Inc. v. Griffin, 876 F.2d 26, 27-28 (5th Cir.
1989). A court’s finding that a controversy exists such that it has subject
matter jurisdiction is a question of law . . . . See In re Canion (Randall &
Blake, Inc. v. Evans), 196 F.3d 579, 584 (5th Cir. 1999). Second, if it has
jurisdiction, then the district court must resolve whether it has the
“authority” to grant declaratory relief in the case presented. See
Travelers Ins. Co. v. Louisiana Farm Bureau Fed’n, Inc., 996 F.2d 774,
776 (5th Cir. 1993) (“Prior to determining whether the district court
abused its discretion by failing to review the merits of this case, this
Court must first determine whether the district court had authority to
grant a declaratory judgment here.”). Third, the court has to determine
how to exercise its broad discretion to decide or dismiss a declaratory
judgment action.
Orix Credit All., Inc. v. Wolfe, 212 F.3d 891, 895 (5th Cir. 2000).
Plaintiff relies upon 17 U.S.C. § 102(b) which relates to the subject matter of
copyright and provides that
[i]n no case does copyright protection for an original work of authorship
extend to any idea, procedure, process, system, method of operation,
concept, principle, or discovery, regardless of the form in which it is
described, explained, illustrated, or embodied in such work.
17 U.S.C. § 102(b). This statute does not relate to misuse of a copyright, nor does it
appear to be applicable to the claims raised in the Third Amended Complaint. See
id.
Copyright misuse is an “equity-based defense . . . which prevents a culpable
plaintiff from prevailing in an action for the infringement of a misused copyright,
[and] forbids the use of the copyright to secure an exclusive right or limited
-23-

monopoly not granted by the Copyright Office and which is contrary to public policy
to grant.” Veeck v. S. Bldg. Code Cong. Int’l Inc., 241 F.3d 398, 409 (5th Cir. 2001).
“This doctrine–which has its historical roots in the unclean hands defense–bars a
culpable plaintiff from prevailing on an action for the infringement of the misused
copyright.” Alcatel USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 792 (5th Cir. 1999)
(quotation omitted).
Plaintiff’s request in Count 9 is, in essence, that the Court resolve in his
favor a potential affirmative defense to any future copyright infringement litigation
brought against him personally by Defendants. This is not sufficient to establish
that the request for declaratory relief in Count 9 is justiciable, as no such future
litigation or actual controversy yet exists. See Orix Credit Alliance, Inc., 212 F.3d
at 896.
“The threat of litigation, if specific and concrete, can indeed establish a
controversy upon which declaratory judgment can be based.” Id. at 897. The filing
of the lawsuit being contingent upon certain factors does not defeat jurisdiction over
a declaratory judgment action. Id. “However, in determining whether a justiciable
controversy exists, a district court must take into account the likelihood that these
contingencies will occur.” Id. The ripeness inquiry “focuses on whether an injury
that has not yet occurred is sufficiently likely to happen to justify judicial
intervention.” Id. (quotation omitted).
The Third Amended Complaint does not contain sufficient factual allegations
to indicate that a copyright infringement claim against Plaintiff is likely to happen.

-24-

According to the Third Amended Complaint “Defendants never intended to seek
remedy in the United States Courts when they substantively engaged the legal
process outlined in 17 U.S.C. § 512.” 3d Am. Compl. [90] at 48. Instead, Plaintiff
asserts that when Defendants sent the takedown notices, they were “actively
planning to litigate the dispute in a foreign country . . . .” Id. The Third Amended
Complaint reflects that Leary, Perret, Abel, and/or Trout Point Lodge have already
pursued at least one copyright infringement claim in the Canadian courts. See
id. at 21-22. There is no indication from the Third Amended Complaint that there
is another specific and concrete threat of copyright infringement litigation against
Plaintiff related to the copyrights at issue in this case.
In sum, the controversy Plaintiff seeks to resolve is at this stage largely
hypothetical. See Orix Credit Alliance, Inc., 212 F.3d at 896. Unasserted,
unthreatened, and unknown potential future copyright claims against Plaintiff do
not present an immediate or real threat which merits declaratory relief. See id.
Because no justiciable controversy exists, the Court lacks subject-matter
jurisdiction as to Count 9, which will be dismissed as to all Defendants.
9.

The declaratory relief sought in Count 10 will be dismissed for lack of
subject-matter jurisdiction.

Count 10 of the Third Amended Complaint seeks declarations under the
Declaratory Judgment Act and the Copyright Act that, as to all Defendants,
Plaintiff’s “use of the photographs in question as agent for Slabbed New Media, LLC
is lawful under the fair use doctrine and does not infringe any of the Defendants’
copyrights,” and that “he has no liability in his personal capacity over content
-25-

belonging to a third party in which he acts as agent pursuant to the Mississippi
Limited Liability Act.” 3d Am. Compl. [90] at 50. Count 10 further seeks “an
injunction prohibiting the Defendants, their agents, attorneys, and assigns from
asserting a copyright claim or filing another civil action against Slabbed New
Media, LLC, Plaintiff/Publisher Handshoe or Plaintiff in his personal capacity or
the lawyers that have previously represented Plaintiff without first seeking leave of
this Court.” Id.
The declaratory relief sought in Count 10 again relates to unasserted,
unthreatened, and unknown theoretical, future claims against Plaintiff himself
which do not present an immediate or real threat. See Orix Credit Alliance, Inc.,
212 F.3d at 896. Because this does not rise to the level of a justiciable controversy,
granting such relief would be improper. See id. Nor has Plaintiff shown that the
Court has authority to grant it. The Court lacks subject-matter jurisdiction with
respect to the relief sought in Count 10 as to all Defendants.
10.

The declaratory relief contained in Count 11 will be dismissed for lack
of subject-matter jurisdiction.

Count 11 invokes the Declaratory Judgment act and the SPEECH Act and
asks the Court to declare that
as a matter of law each and every component judgment rendered in the
case styled, Trout Point Lodge et al v. Douglas Handshoe, Nova Scotia
Supreme Court No. 411345 is REPUGNANT TO THE CONSTITUTION
OF THE UNITED STATES OF AMERICA and unenforceable in the
United States of America.
3d Am. Compl. [90] at 52. According to the Third Amended Complaint, there is a
real and actual controversy between Plaintiff and Defendants as to “whether the
-26-

underlying Canadian defamation action and its multiple resulting judgments are
repugnant to the constitution of the United States of America.” Id. at 51. Plaintiff
maintains that “[t]he Canadian underlying defamation action and resulting
multiple, component judgments represents [sic] a collateral attack on the previous
rulings of this Court in the action styled Trout Point Lodge et al v. Handshoe.” Id.
In Trout Point Lodge, Ltd. v. Handshoe, 729 F.3d 481 (5th Cir. 2013), Trout
Point Lodge, Perret, and Leary sought “to enforce a defamation-based default
judgment that they obtained against [Plaintiff Handshoe] in Nova Scotia, Canada.”
Trout Point Lodge, Ltd., 729 F.3d at 483. Trout Point Lodge, Perret, and Leary
enrolled the Nova Scotia Judgment in the Circuit Court of Hancock County,
Mississippi, in March 2012 in an attempt to collect a damages award, and
Handshoe removed the action to the United States District Court for the Southern
District of Mississippi pursuant to the SPEECH Act. Id. at 486. On cross-motions
for summary judgment, the district court found that Trout Point Lodge, Perret, and
Leary had failed to carry their burden under the SPEECH Act and granted
summary judgment in Handshoe’s favor.
On appeal, the Fifth Circuit affirmed and held that the Nova Scotia judgment
was unenforceable. Id. at 496. The Fifth Circuit explained that the SPEECH Act
was enacted by Congress “in response to the perceived threat of ‘libel tourism,’ a
form of international forum-shopping in which a plaintiff chooses to file a
defamation claim in a foreign jurisdiction with more favorable substantive law,”
thus obstructing the free expression rights of domestic authors and publishers. Id.

-27-

at 487. “[T]he SPEECH Act provides that a domestic court ‘shall not recognize or
enforce a foreign judgment for defamation’ unless it satisfies both First Amendment
and due process considerations.” Id. (quoting 28 U.S.C. § 4102).
The present case appears to relate to a separate, distinct Canadian judgment
from the one that was before the Fifth Circuit in 2013. Very little about this
purported judgment, which was apparently entered in Nova Scotia Supreme Court
No. 411345, can be ascertained from the Third Amended Complaint itself.
However, Plaintiff attached as Exhibit “3” to his original Complaint a decision from
the Supreme Court of Nova Scotia in No. 411345 dated February 14, 2014, see
Decision [1-4] at 2-19, which he has referenced in the Third Amended Complaint,
see 3d Am. Compl. 90 at 22 n.11. Trout Point Lodge, Leary, and Perret were the
applicants in that Canadian proceeding, and Plaintiff was the respondent. Id. at 2.
The Nova Scotia Court found that the previous Canadian action and No.
411345 were similar, “in that they are a response to Mr. Handshoe’s defamatory
actions conducted through the Internet.” Id. at 5. According to the Nova Scotia
Court, “Mr. Handshoe has continued to defame the applicants notwithstanding the
injunction” from the prior lawsuit. Id. at 8. The Nova Scotia Court again awarded
Trout Point Lodge, Leary, and Perret damages for defamation. Id. at 11-12; see also
Order [9-2] at 2 (February 26, 2014, Order assessing damages against Handshoe for
defamation claims by Trout Point, Leary, and Perret in No. 411345).
The SPEECH Act, 28 U.S.C. § 4102, relates to recognition and enforcement of
foreign defamation judgments in the courts of the United States. Plaintiff’s request

-28-

for declaratory relief under the SPEECH Act presupposes that Trout Point Lodge,
Leary, or Perret will seek to enforce the defamation judgment by the Nova Scotia
Court in No. 411345 against him here in the United States. See 28 U.S.C. § 4102.
Plaintiff has not shown that any Defendant has sought to enforce this judgment in
the United States. Plaintiff’s request is therefore premature.
Because no justiciable controversy exists at this time, granting the
declaratory relief sought in Count 11 would be improper. See Orix Credit Alliance,
Inc., 212 F.3d at 896. The Court will dismiss this Count as to all Defendants for
lack of subject-matter jurisdiction.
In sum, the Court will dismiss Counts 1, 2, 4, 6, 7, and 8 as to all Defendants
for lack of statutory standing and will dismiss Counts 9 through 11 as to all
Defendants for lack of subject-matter jurisdiction. The Court will also dismiss
Count 5 as to Perret for failure to state a claim against him upon which relief can be
granted. Count 5 as to Leary and as to Trout Point Lodge, which has not yet
appeared in this action, will proceed.
B.

Ashoka’s Motion to Dismiss [94] will be granted.
Ashoka argues that the Third Amended Complaint fails to state a claim

against it and seeks dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6).
Me. [95] at 5, 12-13. For the same reasons the Court has previously discussed with
respect to Perret and Leary’s Motion to Dismiss [96], the Court lacks subject-matter
jurisdiction over Counts 9 through 11. As for the § 512(f) misrepresentation claims,
Ashoka is only named as a Defendant in Counts 1, 2, and 6, see 3d Am. Compl. [90]

-29-

at 33-36, 41-44, and as the Court has already determined, Plaintiff does not have
statutory standing to pursue these claims individually.
Moreover, the Third Amended Complaint fails to state a claim against
Ashoka upon which relief can be granted. Ashoka is named in Counts 1, 2, 6, and 9.
See id. at 33-36, 41-44, 48-49.10 The Third Amended Complaint does not contain
sufficient factual matter, accepted as true, to state a claim for relief under § 512(f)
against Ashoka in Counts 1, 2, or 6. See Iqbal, 556 U.S. at 678. As for Count 9, the
Third Amended Complaint does not contain sufficient factual matter to state a
plausible copyright misuse defense, as there are insufficient factual allegations as
to Ashoka to show that the defense of misuse would apply. Ashoka’s Motion to
Dismiss [94] will be granted.11
C.

Plaintiff should not be granted leave to file a Fourth Amended Complaint.
Plaintiff has not requested leave to amend his pleading and file a Fourth

Amended Complaint, standing on the allegations contained in his Third Amended

10

Plaintiff does not specify against whom he asserts Counts 10 and 11. 3d Am.
Compl. [90] at 49-52. Plaintiff generally refers to “Defendants” in these counts, but the
allegations appear related to litigation between Plaintiff and those Defendants associated
with Trout Point Lodge, not Ashoka. See id. Counts 10 and 11 make no factual allegations
as to Ashoka, and therefore fail to state a claim against it. See id.
11

The Court notes that the Third Amended Complaint contains an allegation that
Ashoka submitted a “misrepresented Takedown Notice” to Automattic, Inc., on or about
September 28, 2011. 3d Am. Compl. [90] at 11. Based upon a reading of the claims
contained in the Third Amended Complaint, however, Plaintiff does not appear to be
asserting a claim under 17 U.S.C. § 512(f) for this alleged misrepresentation. In its Motion
[94], Ashoka seeks dismissal of this claim, arguing that any such claim is barred by the
statute of limitations. Mem. [95] at 10-12. Plaintiff responds that he is not seeking relief
related to the September 2011 takedown notice, as he “recognized that notice was outside
the applicable statute of limitations when this matter was commenced . . . .” Mem. [110] at
3. The Court therefore need not address this claim.

-30-

Complaint. Even if Plaintiff had sought such leave, the Court would deny it.
Plaintiff filed this lawsuit on November 16, 2015, over one-and-a-half years
ago. Plaintiff was permitted three previous opportunities to amend his pleadings in
an attempt to state claims against all Defendants, and he has been unable to do so
to the extent the Court has found the pending Motions to Dismiss to be meritorious.
The Court finds that any further request for leave to amend would be futile. See
Jones v. Robinson Prop, Grp., L.P., 427 F.3d 987, 994 (5th Cir. 2005) (holding that
futility of the amendment and repeated failures to cure deficiencies are two of the
factors a court may consider in deciding whether to grant leave to amend). Plaintiff
appears to have “already pleaded his ‘best case,’” yet he lacks standing and
otherwise cannot survive a Rule 12(b)(6) challenge as to those of his claims the
Court has discussed in this Order. See Brewster v. Dretke, 587 F.3d 764, 768 (5th
Cir. 2009).
D.

Slabbed New Media, LLC’s Motion to Intervene [101] will be denied.
Slabbed New Media, LLC, seeks to intervene pursuant to Federal Rule of

Civil Procedure 24(a)(2), or alternatively, Rule 24(b)(1)(B). Mot. [101] at 1. Rule
24(a)(2) allows intervention of right for anyone who
claims an interest relating to the property or transaction that is the
subject of the action, and is so situated that disposing of the action may
as a practical matter impair or impede the movant’s ability to protect its
interest, unless existing parties adequately represent that interest.
Fed. R. Civ. P. 24(a)(2). Rule 24(b)(1)(B) provides that a court may permit
intervention by anyone who “has a claim or defense that shares with the main
action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). “The
-31-

intervention rule is intended to prevent multiple lawsuits where common questions
of law or fact are involved but is not intended to allow the creation of whole new
lawsuits by the intervenors.” Deus v. Allstate Ins. Co., 15 F.3d 506, 525 (5th Cir.
1994).
Even if Slabbed otherwise satisfied the requirements for intervention, the
Court would deny the Motion [101]. Rule 24(a) and 24(b) both require a “timely
motion.” Fed. R. Civ. P. 24(a), (b). “The requirement of timeliness is not a tool of
retribution to punish the tardy would-be intervenor, but rather a guard against
prejudicing the original parties by the failure to apply sooner.” Heaton v.
Monogram Credit Card Bank of Georgia, 297 F.3d 416, 422 (5th Cir. 2002) (quoting
Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994)). The Fifth Circuit has
announced four factors a court should consider in determining whether a motion to
intervene is timely:
(1) the length of time during which the would-be intervenor actually knew
or reasonably should have known of its interest in the case before it
sought to intervene; (2) the prejudice that existing parties to the litigation
may suffer as a result of the would-be intervenor’s failure to apply for
intervention as soon as it knew or reasonably should have known of its
interest in the case; (3) the prejudice that the would-be intervenor may
suffer if intervention is denied; and (4) whether unusual circumstances
militate for or against a determination that the application is timely.
There are no absolute measures of timeliness; it is determined from all
the circumstances.
Id. at 422-23.
Plaintiff filed his original Complaint [1] in this case on November 16, 2015,
and has since filed three amended pleadings. Ashoka, Perret, and Leary filed
Motions to Dismiss [55], [75] Plaintiff’s Second Amended Complaint [44], which the
-32-

Court denied without prejudice when it granted Plaintiff leave to file another
amended pleading. See Order [89] at 6-7. Slabbed waited until February 17, 2017,
after Defendants had filed yet another round of dispositive motions, to seek
intervention.
Plaintiff is a member or manager of, and operates, Slabbed.12 Slabbed has
known or reasonably should have known of its interest in the case since the
takedown notices were sent, or certainly by the date the original Complaint [1] was
filed on November 16, 2015. Permitting Slabbed to intervene at this late date
would unduly prejudice Defendants, who have filed multiple dispositive motions
and expended significant resources defending these claims. Slabbed offers only a
conclusory statement that “the remaining parties in this matter will in no way be
prejudiced by Slabbed joining this action.” Mem. [102] at 4. The Court is not
persuaded that Defendants would not be prejudiced.
As for the alleged prejudice Slabbed will suffer, it maintains that it will
suffer “great prejudice” because
the transformative creative works in question that were subjected to
numerous misrepresented Takedown Notices sent by the Defendants
were in some instances both created and owned by Slabbed New Media,
LLC or displayed on the company owned website with the express
permission of the creator/owner of the transformative works.
Id. This begs the question why Slabbed did not seek to intervene much earlier, or
why it did not bring its own independent action pursuant to 17 U.S.C. § 512(f) to

12

The signature line of Slabbed New Media, L.L.C.’s Motion [101], proposed
Complaint in Intervention [101], and Memorandum [102] are signed by counsel who is “Of
Counsel for the Defendant [sic] Douglas Handshoe.”

-33-

pursue its claims. Nor does the Court find any circumstances exist which are so
unusual as to militate against a determination that Slabbed’s Motion is untimely.
Having considered the factors set forth by the Fifth Circuit and all of the
circumstances presented in this case, the Court finds that Slabbed’s Motion is
untimely. See Heaton, 297 F.3d at 422-23. Slabbed’s Motion to Intervene [101] will
be denied.
Moreover, even if the intervention were timely sought under Rule 24,
Defendants argue that the three-year statute of limitations for filing a § 512(f)
claim expired as to all claims which accrued more than three years before February
17, 2017, the date the Motion to Intervene [101] was filed. See Mem. [108] at 19.
Slabbed has not addressed this argument in its Replies [113], [115], or Memoranda
[114], [116].
The claims remaining in this case are the § 512(f) misrepresentation claims
against Progress Media and Smulders set forth in Count 3, and against Leary and
Trout Point Lodge contained in Count 5. The claim in Count 3 relates to a
takedown notice purportedly sent by a Canadian lawyer on behalf of Progress
Media and Smulders on December 14, 2012. Count 5 relates to a February 15,
2014, takedown notice which Plaintiff contends was directed to YouTube, as the
service provider of his own personal YouTube account. The three-year statute of
limitations on both claims would have expired prior to Slabbed’s Motion to
Intervene [101] being filed on February 17, 2017. See 17 U.S.C. § 107 (“No civil
action shall be maintained under the provisions of this title unless it is commenced

-34-

within three years after the claim accrued.”); United States ex rel. Canion v.
Randall & Blake, 817 F.2d 1188, 1192 (5th Cir. 1987) (holding that the filing of the
motion for intervention determines the commencement of the action for purposes of
the statute of limitations). Slabbed’s request to intervene as to those two remaining
Counts would be untimely and thus futile.
Nor has Slabbed shown that it has Article III or statutory standing to pursue
the claim contained in Count 5, which alleges that the YouTube post at issue was
published by Plaintiff on his own YouTube account. 3d Am. Compl. [90] at 40.
Neither the Third Amended Complaint nor Slabbed’s proposed Complaint in
Intervention [101] contains sufficient factual detail as to how Slabbed New Media,
LLC, was injured by this specific misrepresentation to YouTube, as it pertained to
Plaintiff’s own personal account. See 17 U.S.C. § 512(f). Slabbed’s proposed
Complaint in Intervention [101] simply incorporates large portions of the Third
Amended Complaint [90] and “joins and specifically re-alleges Counts 1 through 8
contained in the Third Amended Complaint . . . .” Compl. in Intervention [101] at 9.
Slabbed has not shown that it satisfies the requirements for intervention of
right or for permissive intervention, particularly in light of the dismissal of all of
Plaintiff’s claims with the exception of Counts 3 and 5. The statute of limitations
has run as to Counts 3 and 5 as to Slabbed, and Slabbed is not so situated that
disposing of what remains of this case, specifically Counts 3 and 5, may as a
practical matter impair or impede its ability to protect its own interests. See Fed.
R. Civ. P. 24(a)(2). Moreover, as for Count 5, Slabbed does not appear to claim an

-35-

interest in Plaintiff’s personal YouTube account, and Slabbed’s claims are distinct
from Plaintiff’s claim in that Count. See Fed. R. Civ. P. 24(b)(1)(B). Even if the
statute of limitations had not run as to Count 5, any intervention by Slabbed at this
juncture would unduly multiply these proceedings and essentially create a whole
new lawsuit. See Deus, 15 F.3d at 525. For these reasons, the Court will deny
Slabbed’s Motion to Intervene [101].
III. CONCLUSION
To the extent the Court has not addressed any of the parties’ arguments, it
has considered them and determined that they would not alter the result. Ashoka’s
Motion to Dismiss [94] will be granted. Perret and Leary’s Motion to Dismiss [96]
will be granted in part and denied in part, such that all of Plaintiff’s claims will be
dismissed except Count 5 as to Leary and Trout Point Lodge. Count 3 will also
proceed as to Progress Media and Smulders, who are in default. Slabbed New
Media, LLC’s Motion to Intervene [101] will be denied.
IT IS, THEREFORE, ORDERED AND ADJUDGED that, the Motion to
Dismiss [94] filed by Defendant Ashoka is GRANTED, and the Motion to Dismiss
[96] filed by Defendants Vaughn Perret and Charles Leary is GRANTED IN PART
and DENIED IN PART.
IT IS, FURTHER, ORDERED AND ADJUDGED that, all of Plaintiff’s
claims in Counts 1, 2, 4, 6, 7, 8, 9, 10, and 11 are DISMISSED WITHOUT
PREJUDICE as to all Defendants.
IT IS, FURTHER, ORDERED AND ADJUDGED that, all of Plaintiff’s

-36-

claims against Defendants Ashoka and Vaughn Perret are DISMISSED, and all of
Plaintiff’s claims against Defendant Charles Leary, except for the claim contained
in Count 5 of the Third Amended Complaint, are DISMISSED.
IT IS, FURTHER, ORDERED AND ADJUDGED that, Plaintiff’s
misrepresentation claim under 17 U.S.C. § 512(f) contained in Count 3 of the Third
Amended Complaint will proceed against Defendants Progress Media Group
Limited of Nova Scotia and Marilyn Smulders, and that Plaintiff’s
misrepresentation claim under 17 U.S.C. § 512(f) contained in Count 5 of the Third
Amended Complaint will proceed against Defendants Charles Leary and Trout
Point Lodge.
IT IS, FURTHER, ORDERED AND ADJUDGED that, the Motion to
Intervene filed by Slabbed New Media, LLC, is DENIED.
SO ORDERED AND ADJUDGED, this the 19th day of September, 2017.

s/ Halil Suleyman Ozerden
HALIL SULEYMAN OZERDEN
UNITED STATES DISTRICT JUDGE

-37-