Broadcast Music, Inc et al v. MWS, LLC et al

Filing 17

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that Defendants' Motion to Dismiss and/or for More Definite Statement (Docket No. 12 ) is DENIED.. Signed by Magistrate Judge Terry I. Adelman on 2/3/12. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
BROADCAST MUSIC, INC., et al.,

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Plaintiffs,
v.
MWS, LLC d/b/a FIFTEEN, and
MARK D. WINFIELD, individually,
Defendants.

No. 4:11CV1481 TIA

MEMORANDUM AND ORDER
This matter is before the Court on Defendants= Motion to Dismiss and/or for More
Definite Statement (Docket No. 12). 1

The parties consented to the jurisdiction of the

undersigned pursuant to 28 U.S.C. ' 636(c).
I. Facts
Taking all facts alleged in the Complaint as true and construing those facts in the light
most favorable to the Plaintiffs,2 the Court sets forth the following facts:
Plaintiff Broadcast Music, Inc. (ABMI@) is a performing rights society which licenses the
right to publicly perform approximately 6.5 million copyrighted musical compositions.
(Complaint at & 3). The other named Plaintiffs are the copyright owners of the various musical
1

The undersigned notes that Defendants did not provide a memorandum in support of their
Motion to Dismiss and/or for More Definite Statement as required under the local rules. See
E.D.Mo. L.R. 7- 4.01(A) (AUnless otherwise directed by the Court, the moving party shall file
with each motion a memorandum in support of the motion, including any relevant argument and
citations to any authorities on which the party relies.@). Because Defendants did not file a
memorandum in support of their Motion to Dismiss, the Motion to Dismiss fails on this basis
alone. Nonetheless, the undersigned also concludes it should be denied on the merits.
2

Farm Credit Servs. of America v. American State Bank, 339 F.3d 764, 767 (8th Cir.
2003) (citation omitted).

compositions.

(Complaint at && 4-11). Defendant MWS, LLC is a limited liability company

organized under the laws of Missouri and operating as establishment known as Fifteen, located at
1900 Locust Avenue, St. Louis, Missouri, 63103-1641 (the AEstablishment@). (Complaint at &
12). In operating the business, Defendant MWS, LLC publicly performs musical compositions
and/or causes musical compositions to be publicly performed. (Complaint at & 13). Defendant
MWS, LLC has the ability to supervise the activities of Defendant MWS, LLC and has a direct
financial interest in the Establishment and the limited liability company. (Complaint at && 14,
16).

Defendant Mark D. Winfield is a member of Defendant MWS, LLC with primary

responsibility for the operation and management of that limited liability company and the
Establishment. (Complaint at & 15).
Plaintiffs allege five claims of willful copyright infringement based on Defendants=
unauthorized public performance of musical compositions from the BMI repertoire on either
December 10, 2010 or March 18, 2011. (Complaint at & 18; Exhibit A, Schedule A). Plaintiffs
assert that the specific acts of copyright infringement alleged in the instant Complaint have caused
Plaintiffs damage. (Complaint at & 24).
On September 19, 2011, Defendants filed a Motion to Dismiss citing Bell Atlantic Corp.
v. Twombly, 550 U.S. 554, 570 (2007).

Plaintiffs filed a Memorandum in Opposition to

Defendants= Motion to Dismiss and/or Motion for More Definite Statement. (Docket No. 13).

II. Legal Standards
The United States Supreme Court has held that a complaint must be dismissed under
Federal Rule 12(b)(6) for failure to state a claim upon which relief can be granted if the complaint
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fails to plead Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 554, 570 (2007) (abrogating the Ano set of facts@ standard set forth
in Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). While the Court cautioned that the holding does
not require a heightened fact pleading of specifics, Aa plaintiff=s obligation to provide the >grounds=
of his >entitle[ment] to relief= requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.@ Id. at 555.

In other words, A[f]actual

allegations must be enough to raise a right to relief above the speculative level . . . .@ Id. This
standard simply calls for enough facts to raise a reasonable expectation that discovery will reveal
evidence of the claim. Id. at 556.
Courts must liberally construe the complaint in the light most favorable to the plaintiff and
accept the factual allegations as true. See Id. at 555; see also Schaaf v. Residential Funding
Corp., 517 F.3d 544, 549 (8th Cir. 2008) (stating that in a motion to dismiss, courts accept as
true all factual allegations in the complaint); Eckert v. Titan Tire Corp., 514 F.3d 801, 806 (8th
Cir. 2008) (explaining that courts should liberally construe the complaint in the light most
favorable to the plaintiff). Further a court should not dismiss the complaint simply because the
court is doubtful that the plaintiff will be able to prove all of the necessary factual allegations.
Twombly, 550 U.S. at 556. However, A[w]here the allegations show on the face of the complaint
there is some insuperable bar to relief, dismissal under Rule 12(b)(6) is appropriate.@ Benton v.
Merrill Lynch & Co., 524 F.3d 866, 870 (8th Cir. 2008) (citation omitted). Further, courts A>are
not bound to accept as true a legal conclusion couched as a factual allegation.=@ Ashcroft v.
Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1950 (2009) (quoting Twombly, 550 U.S. at 555). When
considering a motion to dismiss, a court can Abegin by identifying pleadings that, because they are
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no more than conclusions, are not entitled to the assumption of truth.@ Id. Legal conclusions
must be supported by factual allegations to survive a motion to dismiss. Id.
Defendants alternatively seek a more definite statement of the claims asserted in the
Complaint. A party may make a motion for more definite statement "if a pleading to which a
responsive pleading is permitted is so vague or ambiguous that the party cannot reasonably
prepare a response." Fed.R.Civ.P. 12(e). But, Fed.R.Civ.P. 8(a)(2) only requires a complaint to
contain "a short and plain statement of the claim showing that the pleader is entitled to relief."
Because of "liberal notice pleading and the availability of extensive discovery, motions for a more
definite statement are universally disfavored." Tinder v. Lewis Cnty. Nursing Home Dist., 207 F.
Supp.2d 951, 959 (E.D. Mo. 2001) (collecting cases). AA motion under Rule 12(e) is designed
to strike at unintelligibilty in a pleading rather than want of detail." Patterson v. ABS Consulting,
Inc., No. 4:08CV697, 2009 WL 248683, at *2 (E.D. Mo. Feb. 2, 2009). The notice pleading
standard "relies on liberal discovery rules and summary judgment motions to define disputed facts
and issues and to dispose of unmeritorious claims." Swierkiewicz v. Sorema N.A., 534 U.S. 506,
512 (2002). Because a motion for more definite statement is not a substitute for discovery, one
cannot use it to test a case or require the pleader to allege certain facts or retreat from certain
allegations. Tinder, 207 F. Supp.2d at 960. When, however, a "pleading fails to specify the
allegations in a manner that provides sufficient notice, a defendant can move for a more definite
under Rule12(e) before responding. Id. at 514.
III. Discussion
The undersigned has reviewed the pleadings and the law and finds that neither dismissal
under Fed. R. Civ. P. 12 nor the filing of an amended complaint is not warranted at this time.
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In ruling on a motion to dismiss, the standard is the complaint must plead Aenough facts to
state a claim to relief that is plausible on its face.@ Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 570 (2007). On its face, the Complaint is not unintelligible, vague, or ambiguous such that
Defendants cannot reasonably frame a response. At this stage in the proceedings, Plaintiffs=
Complaint meets this standard. In relevant part, Plaintiffs allege five claims of willful copyright
infringement based on Defendants= unauthorized public performance of musical compositions
from the BMI repertoire on either December 10, 2010 or March 18, 2011. (Complaint at & 18;
Exhibit A, Schedule A). The individual defendant should know whether he did these thing or
not, so he can respond to these allegations. Therefore, the undersigned will deny the Motion to
Dismiss and/or for More Definite Statement.
Finally, the motion for more definite statement must also be denied. A review of the
Complaint shows that the Complaint contains a short and plain statement of the facts
demonstrating the basis for Defendants= liability. The Complaint meets the federal notice pleading
standard of Fed.R.Civ.P. 8(a). Further, if a defendant does not believe he or it can be held legally
responsible, he or it should so state in an answer or file the appropriate motion after discovery.
Accordingly,
IT IS HEREBY ORDERED that Defendants= Motion to Dismiss and/or for More
Definite Statement (Docket No. 12) is DENIED.

/s/ Terry I. Adelman
UNITED STATES MAGISTRATE JUDGE
Dated this

3rd

day of February, 2012.

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