BAVENDAM et al v. PEARSON EDUCATION, INC.

Filing 16

OPINION/ORDER denying Pearsons motions to dismiss and sever in the following actions: Civ. No. 13-3096 [Dkt. No. 6], Civ. No. 13-3176 [Dkt. No. 7], Civ. No. 13-3318 [Dkt. No. 6], Civ. No. 13-3319 [Dkt. No. 6], Civ. No. 13-3320 [Dkt. No. 6]; that civil action numbers 13-3096, 13-3176, 13-3318, 13-3319, and 13-3320 will be consolidated in front of the Honorable Michael A. Hammer, U.S.M.J. for purposes of discovery.. Signed by Judge Faith S. Hochberg on 10/3/13. (DD, )

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
:
FRED BAVENDAM and JOHN EASTCOTT,
:
:
Plaintiffs,
: Civil Case No. 13-3096 (FSH)
:
v.
:
:
PEARSON EDUCATION, INC.,
:
:
Defendant.
:
:
:
CHARLES P. NICKLIN, RICHARD L. MINDEN, :
and MINDEN PICTURES, INC.,
:
: Civil Case No. 13-3176 (FSH)
Plaintiffs,
:
:
v.
:
:
PEARSON EDUCATION, INC.,
:
:
Defendant.
:
:
:
FRANS LANTING,
:
:
Plaintiff,
: Civil Case No. 13-3318 (FSH)
:
v.
:
:
PEARSON EDUCATION, INC.,
:
:
Defendant.
:
:
:

:
JIM BRANDENBERG, TIM FITZHARRIS, and
:
MARK MOFFETT,
:
: Civil Case No. 13-3319 (FSH)
Plaintiffs,
:
:
v.
:
:
PEARSON EDUCATION, INC.,
:
:
Defendant.
:
:
:
GERRY ELLIS, MICHAEL QUINTON, KONRAD :
WOTHE, and TUI DE ROY,
:
: Civil Case No. 13-3320 (FSH)
Plaintiffs,
:
:
v.
:
: Date: October 3, 2013
PEARSON EDUCATION, INC.,
:
:
Defendant.
:
:
OPINION & ORDER
HOCHBERG, District Judge:
This matter comes before the Court upon Pearson’s motions to sever and dismiss in five
concurrent copyright infringement cases brought by various photographers against Pearson. For
the reasons stated below, the Court denies Pearson’s motions to sever, denies Pearson’s motions
to dismiss the contributory infringement claims, and denies Pearson’s motion to dismiss MPI
under the doctrines of claim preclusion and issue preclusion.

2

I.

BACKGROUND
The general facts of the five Pearson matters are similar. Minden Pictures, Inc. (“MPI”)

is a stock photo agency that licenses photographs of various photographers to publishers,
including Defendant Pearson Education, Inc. (“Pearson” or “Defendant”). Pearson publishes and
sells textbooks. Each of the five above captioned cases in front of this Court involves MPI,
photographers, or MPI and photographers (“Plaintiffs”). Plaintiffs sued Pearson for copyright
infringement alleging unauthorized use of the photographers’ photographs.
On November 7, 2011, MPI filed a complaint in the U.S. District Court for the Northern
District of California asserting copyright infringement claims against Pearson. See Minden
Pictures, Inc. v. Pearson Education, Inc., No. 11-5385, Dkt. No. 1. On March 5, 2013, the
Minden Court granted summary judgment in Pearson’s favor, concluding MPI lacked statutory
standing under the Copyright Act to assert copyright infringement claims on behalf of the
photographers. Id. at Dkt. Nos. 76 & 77. 1 MPI appealed that decision, and the appeal is now
before the U.S. Court of Appeals for the Ninth Circuit. After the Minden decision, several
photographers and MPI filed suits in this district.
In the five related actions before this Court, the plaintiffs allege that Pearson engaged in
widespread copyright infringement by a three step scheme: (i) Pearson requested and obtained
limited licenses to print copyrighted photographs; (ii) Pearson then printed and distributed its
textbooks beyond the uses permitted by the licenses; and (iii) refused to provide information
about its use of the copyrighted photographs. Plaintiffs allege that Pearson is liable for direct

1

Minden Pictures, Inc. v. Pearson Educ., Inc., Civ No. 11-05385, 2013 WL 812412 (N.D. Cal.
Mar. 5, 2013).
3

and contributory copyright infringement. In each case, MPI was the agent who negotiated and
executed the limited licenses with Pearson.
Pearson moves in the above-captioned cases to dismiss the contributory infringement
claims, sever all non-first-named plaintiffs, and dismiss plaintiff MPI.
II.

STANDARD OF REVIEW
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 129 S.
Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also
Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (“[S]tating . . . a claim requires
a complaint with enough factual matter (taken as true) to suggest the required element. This
does not impose a probability requirement at the pleading stage, but instead simply calls for
enough facts to raise a reasonable expectation that discovery will reveal evidence of the
necessary element.”) (internal quotations omitted).
When considering a motion to dismiss under Iqbal, the Court must conduct a two-part
analysis. “First, the factual and legal elements of a claim should be separated. The District
Court must accept all of the complaint’s well-pleaded facts as true, but may disregard any legal
conclusions. Second, a District Court must then determine whether the facts alleged in the
complaint are sufficient to show that the plaintiff has a plausible claim for relief.” Fowler v.
UPMC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (internal citations and quotations
omitted). “A pleading that offers labels and conclusions or a formulaic recitation of the elements
of a cause of action will not do. Nor does a complaint suffice if it tenders naked assertions
devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (internal quotations and
alterations omitted).

4

“As a general matter, a district court ruling on a motion to dismiss may not consider
matters extraneous to the pleadings.

However, an exception to the general rule is that a

‘document integral to or explicitly relied upon in the complaint’ may be considered ‘without
converting the motion [to dismiss] into one for summary judgment.’” In re Burlington Coat
Factory Sec. Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (internal citations omitted) (emphasis in
original).
III.

DISCUSSION
a. Severance 2
Pearson asks the Court to sever or dismiss any plaintiff that is not the first-named

plaintiff in four of the five Pearson cases pending before this Court. 3 Federal Rule of Civil
Procedure 20 governs permissive joinder: “Persons may join in one action as plaintiffs if: (A)
they assert any right to relief jointly, severally, or in the alternative with respect to or arising out
of the same transaction, occurrence, or series of transactions or occurrences; and (B) any
question of law or fact common to all plaintiffs will arise in the action.” Fed. R. Civ. P. 20(a)(1).
Federal Rule of Civil Procedure 21 governs misjoinder: “Misjoinder of parties is not a ground
for dismissing an action. On motion or on its own, the court may at any time, on just terms, add
or drop a party. The court may also sever any claim against a party.” Fed. R. Civ. P. 21.
The requirements of Rule 20(a) are construed in light of the underlying purposes of
joinder—the promotion of trial convenience and judicial economy. See Swan v. Ray, 293 F.3d
1252, 1253 (11th Cir. 2002). “For courts applying Rule 20 . . . the impulse is toward entertaining
the broadest possible scope of action consistent with fairness to the parties; joinder of claims,
2

This portion of the Court’s Opinion only applies to the following civil actions: Civ. Nos. 133096, 13-3176, 13-3319, and 13-3320.
3

The fifth case, Civ. No. 13-3318, only involves a single plaintiff.
5

parties and remedies is strongly encouraged.” Hagan v. Rogers, 570 F.3d 146, 153 (3d Cir.
2009) (internal quotation marks omitted). However, the policy behind Rule 20 is not a license to
join unrelated claims and defendants in one lawsuit. See, e.g., Pruden v. SCI Camp Hill, 252 F.
App’x 436 (3d Cir. 2007).
Factors that may be considered in determining whether severance is warranted include:
“(1) whether the issues sought to be tried separately are significantly different from one another,
(2) whether the separable issues require the testimony of different witnesses and different
documentary proof, (3) whether the party opposing the severance will be prejudiced if it is
granted, and (4) whether the party requesting severance will be prejudiced if it is not granted.”
Gary v. Albino, Civ. No. 10-886, 2010 WL 2546037, at *4 (D.N.J. June 21, 2010) (internal
citations and quotation marks omitted).
Pearson argues that plaintiffs do not assert any right to relief jointly or severally and that
the claims do not arise out of the same transaction, occurrence, or series of transactions or
occurrences.

Specifically, Pearson argues that each plaintiff’s claims involve different

photographs, different registration statuses, different publications, and different licenses.
Pearson also argues that the plaintiffs do not have any questions of law or fact common to all
plaintiffs.
In response, plaintiffs argue that in each case the plaintiffs had the same licensing agent
(MPI), that it was the licensing agent that corresponded with Pearson, and it was the licensing
agent who granted the limited permissions to Pearson. Plaintiffs also argue that the underlying
licenses contain identical terms regardless of which photographer’s images are licensed.
Plaintiffs also assert the same pattern and practice of under-licensing by Pearson has harmed the
various plaintiffs.

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The Court finds that the plaintiffs meet the requirements of Rule 20(a) because the claims
arise out of the same transaction or occurrence (or the same series of transactions or
occurrences). Although the claims plaintiffs bring involve different underlying material, they all
involve licenses negotiated by MPI and Pearson and publications created and sold by Pearson.
Each of plaintiffs’ claims is also premised on the same alleged pattern and practice of underlicensing copyrighted work by Pearson. The various claims will also raise common questions of
law and fact, such as the negotiations between Pearson and MPI. Joinder under Rule 20(a) is
also supported by the underlying purposes of Rule 20. Much time and many resources would be
wasted maintaining a dozen separate cases involving the same underlying facts. 4
Other factors the Court may consider also support keeping these plaintiffs together. The
issues presented by the plaintiffs are similar, and there will be substantial overlap of witnesses
and documentary evidence. See Gary, 2010 WL 2546037, at *4. Nor will the parties be
prejudiced by keeping the plaintiffs together in their respective matters. Pearson already offered
to conduct joint discovery among all the pending cases. Pearson’s only prejudice objection
appears to relate to whether or not plaintiffs’ trials should be separate. The Court finds that no
basis has been shown at this time that separate trials are needed to prevent undue prejudice. A
limiting instruction will properly cover this issue at trial, and it would be a waste of judicial
resources to have multiple trials on the same issues and many of the same witnesses. The actions
of the Defendant have not been shown to be different as between the various plaintiff
photographers, and the testimony of MPI will be substantially the same with respect to each
photographer and each photograph.
4

Plaintiffs also assert that because of the commonality of the underlying facts, the majority of
issues in all of these cases will be addressed by a single witness on the plaintiffs’ side—Richard
L. Minden.
7

b. Motions to Dismiss the Contributory Copyright Infringement Claims 5
Pearson also moves to dismiss plaintiffs’ contributory copyright infringement claims in
each of the five pending actions arguing that (i) plaintiffs do not allege sufficient facts to meet
Rule 8(a)(2), and (ii) plaintiffs cannot allege contributory infringement based on extraterritorial
infringement.
Contributory copyright infringement requires a plaintiff to allege: “(1) direct copyright
infringement of a third-party; (2) knowledge by the defendant that the third-party was directly
infringing; and (3) material contribution to the infringement.” Parker v. Google, Inc., 242 F.
App’x 833, 837 (3d Cir. 2007) (citing Columbia Pictures Indus., Inc. v. Redd Horne, Inc., 749
F.2d 154, 160 (3d Cir. 1984)). As explained below, plaintiffs have alleged sufficient facts to
plead contributory infringement and survive a motion to dismiss.
i. Adequacy of Plaintiffs’ Factual Allegations
Pearson argues that plaintiff’s contributory copyright infringement claims fail for two
reasons. First, Pearson argues that plaintiffs’ contributory copyright claims do not include the
factual allegations necessary to support the claims. Instead, Pearson asserts that plaintiffs’
claims merely recite the elements of the cause of action without the support required by Rule 8.
Specifically, Pearson argues that plaintiffs’ complaints lack any allegation of facts related to
third-party direct infringement or an allegation of facts related to knowledge or inducement.
Second, Pearson argues that plaintiffs’ contributory infringement claims must fail to the extent
they rely on extraterritorial acts.

In response, plaintiffs argue that they meet the pleading

requirements of Rule 8. Plaintiffs also argue that at least part of the alleged contributory

5

This portion of the Court’s opinion applies to all five of the above captioned cases.
8

infringement takes place in the United States, thus the conduct falls into an accepted exception to
the general rule that the Copyright Act does not apply outside the United States.
Other district courts have addressed the issues raised by the parties in this matter. Three
district courts have dismissed without prejudice similarly worded, but not identical, contributory
infringement claims while two have allowed them to advance.
In Grant Heilman Photography, Inc. v. Pearson Educ., Inc., Civ. No. 11-4649 (E.D. Pa.
July 27, 2012), Dkt. No. 48, the court denied a motion to add a contributory infringement claim
stating that a “vague, broadly-worded assertion does not provide enough factual support to
survive a motion to dismiss under Rule 12(b)(6).” Id., at *2. Similarly, in Panoramic Stock
Images, Ltd. v. Pearson Educ., Inc., Civ. No. 12-9918, 2013 WL 2357586 (N.D. Ill. May 29,
2013), the court dismissed a contributory infringement claim stating: “[Plaintiff] fails to state a
claim for contributory infringement because the First Amended Complaint fails to identify any
third party or publication that allegedly infringed on its copyrights or any factual basis
suggesting that Pearson induced or encouraged infringement. . . . This Court cannot reasonably
infer from these allegations that any contributory infringement took place either inside or outside
the United States.” Id., at *3-4. In Viesti Associates, Inc. v. Pearson Educ., Inc., Civ No. 122240 (D. Colo. Aug. 12, 2013), Dkt. No. 49, the court granted a motion to dismiss a contributory
copyright infringement claim finding that the plaintiff had failed to allege facts describing
instances of Pearson encouraging or promoting third parties to infringe plaintiff’s photographs.
Id. at *14-15.
In contrast, in StockFood Am., Inc. v. Pearson Educ., Inc., Civ. No. 12-124, 2012 WL
5986791 (D. Me. Nov. 29, 2012), the court found language substantially similar, but not
identical, to that in Heilman alleged sufficient facts to survive a motion to dismiss. Id., at *4-5.

9

In StockFood, the court found a complaint sufficient when it alleged that (i) Pearson reproduced
photographs, (ii) distributed them to third parties without permission, and (iii) the third parties
translated publications containing the photographs into additional languages or published them in
local adaptations or reprints without its permission. Id. at *5. Similarly, in Jon Feingersh
Photography, Inc. v. Pearson Educ., Inc., Civ. No. 13-78 (E.D. Pa. Mar. 28, 2013), Dkt. No. 33,
the court denied Pearson’s motion to dismiss without opinion when the plaintiff used
substantially similar, although not identical, language in its complaint with respect to the
contributory infringement claims.
The Court finds that the plaintiffs’ complaints meet the threshold for pleading under Rule
8 and survive the motions to dismiss. As noted above, contributory copyright infringement
requires three elements: “(1) direct copyright infringement of a third-party; (2) knowledge by
the defendant that the third-party was directly infringing; and (3) material contribution to the
infringement.” Parker, 242 F. App’x at 837.
Plaintiffs have alleged that Pearson facilitates the international distribution of its
publications through its international rights management group.

(E.g., Civ. No. 13-3096,

Complaint at ¶ 26 6.) This group seeks to “maximize the number of translations and local
versions published that are based upon products of Pearson Education.” (Id.) Plaintiffs have
alleged that Pearson reproduced and distributed the photographs at issue without plaintiffs’
permission. (Id. at ¶ 27.) Plaintiffs allege that this distribution to third parties occurred within
the United States, and the third parties went on to reproduce and distribute the photographs at
issue. (Id. at ¶¶ 27, 29-30.) Plaintiffs go on to give two examples of third-party publications that

6

The contributory copyright infringement claims in each action are substantially similar,
although the paragraph numbering for each individual case varies slightly. Citations to the
Complaint in civil action number 13-3096 are used for convenience.
10

allegedly include photographs at issue in these cases. (Id. at ¶ 28.) Plaintiffs also allege that
Pearson knew of this alleged infringement. (Id. at ¶¶ 31-32.)
Plaintiffs have alleged enough facts to survive a motion to dismiss because, if accepted as
true, their factual allegations “state a claim to relief that is plausible on its face.” 7 Iqbal, 129 S.
Ct. at 1949.

The complaint alleges third-party infringement, Pearson’s knowledge of that

infringement, and material contribution in the form of reproduction, transmission, and
facilitation. 8

7

Given Pearson’s superior knowledge of the underlying facts, plaintiffs’ reliance on the use of
“information and belief” in their complaints does not prevent the complaints from stating a
plausible claim of entitlement to relief. See, e.g., Arista Records LLC v. Doe 3, 604 F.3d 110,
120 (2d Cir. 2010) (“The Twombly plausibility standard, which applies to all civil actions, does
not prevent a plaintiff from pleading facts alleged ‘upon information and belief’ where the facts
are peculiarly within the possession and control of the defendant or where the belief is based on
factual information that makes the inference of culpability plausible.”) (citations and internal
quotation marks omitted).
8

Pearson argues that merely supplying means to accomplish infringing activity does not give rise
to liability for contributory infringement. For this proposition Pearson cites Capitol Records,
Inc. v. Foster, Civ. No. 04-1569, 2007 WL 1028532 (W.D. Okla. Feb. 6, 2007), Newborn v.
Yahoo!, Inc., 391 F. Supp. 2d 181 (D.D.C. 2005), and Brought to Life Music, Inc. v. MCA
Records, Inc., Civ. No. 02-1164, 2003 U.S. Dist. LEXIS 1967 (S.D.N.Y. Feb. 11, 2003). But
these cases are distinguishable. In Capitol Records, the complaint did not contain any suggestion
“that [the defendant] knew third parties were using her account to infringe the plaintiffs’
copyrights or that she substantially participated in any infringing activities.” Capitol Records,
2007 WL 1028532, at *3. In Newborn, the complaint contained “brief, conclusory statements,
which are accompanied by no factual support,” and did not allege that “the defendants’ activities
were anything more than the mere operation of the website businesses.” Newborn, 391 F. Supp.
2d at 189 (citation and internal quotation marks omitted). Similarly, in MCA Records, the
plaintiff failed to allege that the defendant had knowledge of the third-party infringement. MCA
Records, 2003 U.S. Dist. LEXIS 1967, at *5-8 (“the complaint does not allege that [defendant]
had knowledge of, or reasonably should have anticipated the alleged infringement”).
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ii. Extraterritoriality
Pearson also argues that “[t]o the extent Plaintiffs’ contributory infringement claim is
based on allegations of extraterritorial infringement, the claim also fails because the Copyright
Act does not apply to acts of infringement that occur outside of the United States.”
The Court finds that Plaintiffs have pleaded sufficient factual matter to state a claim
under the “predicate act exception” to the territoriality application of the Copyright Act. See,
e.g., Tire Eng’g & Distribution, LLC v. Shandong Linglong Rubber Co., Ltd., 682 F.3d 292, 306
(4th Cir. 2012) (describing and adopting the predicate act doctrine and noting its acceptance by
the Second, Sixth, Ninth, and Federal Circuits) cert. denied, 133 S. Ct. 846 (2013). “As a
general matter, the Copyright Act is considered to have no extraterritorial reach. But courts have
recognized a fundamental exception: when the type of infringement permits further reproduction
abroad, a plaintiff may collect damages flowing from the foreign conduct.” Id. (internal citations
and quotation marks omitted). Plaintiffs allege an infringement in the United States—Pearson’s
unauthorized copying of photographs for distribution to third parties—that fueled further
infringement abroad. (E.g., Civ. No. 13-3096, Complaint at ¶¶ 26-36.) These allegations, taken
as true for purposes of evaluating a motion to dismiss, suffice to trigger the predicate act
exception. 9 See StockFood, 2012 WL 5986791, at *7.
c. Motion to Dismiss MPI’s Copyright Infringement Claims 10
Pearson moves to dismiss MPI’s infringement claims under the doctrines of claim and
issue preclusion based on the judgment rendered in a prior case between MPI and Pearson.
9

Pearson’s citation to Music Sales Ltd. v. Charles Dumont & Son, Inc., 800 F. Supp. 2d 653, 660
(D.N.J. 2009) is inapposite. In Music Sales, the court recognized the “predicate act exception”
but noted for it to apply there must be a predicate act that constitutes infringement. Id. There
was no infringing predicate act in Music Sales. Id.
10

This portion of the Court’s opinion applies to civil action number 13-3176.
12

i. Claim Preclusion
Res judicata, or claim preclusion, “protect[s] litigants from the burden of relitigating an
identical issue with the same party or his privy and . . . promot[es] judicial economy by
preventing needless litigation.” In re Mullarkey, 536 F.3d 215, 225 (3d Cir. 2008). The doctrine
“bars not only claims that were brought in a previous action, but also claims that could have been
brought.” Id. “In order to prevail on a defense of res judicata [claim preclusion], a defendant
must demonstrate that there has been: (1) a final judgment on the merits in a prior suit; (2)
involving the same parties or their privies; and (3) a subsequent suit based on the same cause of
action.”

Elkadrawy v. Vanguard Grp., Inc., 584 F.3d 169, 172 (3d Cir. 2009); see also

Mullarkey, 536 F.3d at 225.
Pearson argues that the court in the prior Minden action issued a final judgment holding
that MPI lacked standing to assert copyright infringement claims related to Pearson’s alleged use
of the works of third-party photographers. Pearson also argues that MPI’s claims in this action
are based on the same alleged infringement that MPI asserted in Minden. The parties do not
dispute that the parties in Minden (MPI and Pearson) are identical to the parties in the present
litigation.
In response, MPI argues that claim preclusion does not apply because the California court
expressly reserved the rights of photographers to bring suit. Specifically, the Minden Court
stated: “Judgment will be entered for defendant Pearson, Inc. This is a ruling on standing only.
It does not bar the photographers themselves from suing Pearson on the same claims.” Minden
Pictures, Inc., 2013 WL 812412, at *9. MPI argues that because it is the sole owner of certain
photographs, it should be allowed to bring copyright infringement claims related to those
photographs.

13

It is well accepted that expressly preserved claims are not subject to claim preclusion.
See Venuto v. Witco Corp., 117 F.3d 754, 758-61 (3d Cir. 1997); see also Restatement (Second)
of Judgments § 26 (1982); § 4413, Claim Preclusion—Control by First Court, 18 Fed. Prac. &
Proc. Juris. § 4413 (2d ed.) (“A judgment that expressly leaves open the opportunity to bring a
second action on specified parts of the claim or cause of action that was advanced in the first
action should be effective to forestall preclusion.”). In Minden, the court expressly reserved the
photographers’ right to bring an action based on the same causes of action presented by MPI.
This Court finds that the Minden Court also reserved the causes of action MPI asserts in this
action. This is supported by the fact that, here, Minden alleges that a photographer, Nicklin, sold
all of his rights to certain photographs to Minden in 1998. (Civ. No. 13-3176, Complaint at ¶
11.)

The Minden Court clearly envisioned that some entity would be able to assert the

underlying copyright infringement claims.

In this case, by virtue of an alleged wholesale

assignment, those rights presumably reside with MPI. Thus, MPI’s right to bring this action for
photographs it wholly owns was preserved in the Minden action. 11 Indeed, the photographers
can freely sell or transfer their copyrights, and any subsequent buyer should be able to exercise
those preserved causes of action as if they were the original copyright owner. MPI’s claims are
not barred by claim preclusion.
ii. Issue Preclusion
“The doctrine of issue preclusion . . . derives from the simple principle that ‘later courts
should honor the first actual decision of a matter that has been actually litigated.’” Burlington N.
R. Co. v. Hyundai Merch. Marine Co., Ltd., 63 F.3d 1227, 1231 (3d Cir. 1995) (citing 18 Charles
A. Wright, Arthur R. Miller & Edward H. Cooper, FEDERAL PRACTICE AND PROCEDURE § 4416

11

This outcome also ensures that these claims will be addressed on their merits.
14

(1981)). “Issue preclusion . . . bars ‘successive litigation of an issue of fact or law actually
litigated and resolved in a valid court determination essential to the prior judgment,’ even if the
issue recurs in the context of a different claim.” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).
The doctrine applies when: “(1) the issue sought to be precluded [is] the same as that involved in
the prior action; (2) that issue [was] actually litigated; (3) it [was] determined by a final and valid
judgment; and (4) the determination [was] essential to the prior judgment.” Burlington, 63 F.3d
at 1231-32.
Here, issue preclusion does not apply because the Minden Court never addressed MPI’s
right to assert copyright infringement claims for photographs where MPI is the sole owner.
Rather, Minden only addressed MPI’s right to assert claims based on co-ownership. Minden,
2013 WL 812412, at *1. MPI’s claims are not barred by issue preclusion.
IV.

CONCLUSION & ORDER
For the reasons stated above;
IT IS on this 3rd day of October 2013,
ORDERED that Pearson’s motions to dismiss and sever are DENIED in the following

actions: Civ. No. 13-3096 [Dkt. No. 6], Civ. No. 13-3176 [Dkt. No. 7], Civ. No. 13-3318 [Dkt.
No. 6], Civ. No. 13-3319 [Dkt. No. 6], Civ. No. 13-3320 [Dkt. No. 6]; and it is further
ORDERED that civil action numbers 13-3096, 13-3176, 13-3318, 13-3319, and 13-3320
will be consolidated in front of the Honorable Michael A. Hammer, U.S.M.J. for purposes of
discovery.
IT IS SO ORDERED.
/s/ Faith S. Hochberg__________
Hon. Faith S. Hochberg, U.S.D.J.

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