Castro v. Cusack et al

Filing 145

MEMORANDUM AND ORDER ADOPTING REPORT AND RECOMMENDATIONS, For the foregoing reasons, the Court grants the motions to dismiss filed by Showtime andSony Pictures, Dkt. No. 84; ABC, Dkt. No. 90; Imagine Television, Dkt. No. 92; WMA, Dkt. No. 96; Hank Az aria, Dkt. No. 106; Twentieth Century Fox, Dkt. No. 108; and Little Chicken, Dkt. No. 119. Imagine Television's motion for joinder is also granted. Dkt. No. 115. Additionally, upon de novo review, the Court finds Magistrate Judge Bloom's R& R to be correct, well-reasoned and free of reversible error. The Court, therefore, adopts the R&R in its entirety, supplemented by this Memorandum & Order, as the opinion of the Court. See Dkt. No 137. In line with Judge Bloom's recommendation, Danny Strong's motion to quash service, Dkt. No. 27, and Lee Daniels Entertainment's motion to quash service, Dkt. No. 131, are granted. Because the Court determines that any prospective amended complaint would be futile further leave to am end or, for the same reasons, effect proper service is denied. Plaintiffs motions for default judgment, Dkt. Nos. 89, 133, are denied. The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this Memorandum & Order would not b e taken in good faith and, therefore, in forma pauperis is denied for the purpose of any appeal. See Coppedge v. United States^ 369 U.S. 438,444-45, 82 S. Ct. 917,920-21, 8 L. Ed. 2d 21 (1962). (Judge Bloom's original R&R, Dkt. #110, is terminat ed as moot.) The Clerk of Court is directed to send a copy of this Memorandum & Order to the pro se plaintiff, enter judgment accordingly and close this case. (Ordered by Judge Eric N. Vitaliano on 7/16/2019) C/M Fwd. for Judgment. (Galeano, Sonia)

UNITED STATES DISTRICT COURT

wsp/str1cTcSurte1,,J

EASTERN DISTRICT OF NEW YORK

ROMANUS CASTRO,

4

BROOKLYN OFFICE

Plaintiff,

-againstJOHN CUSACK,THE WILLIAM MORRIS AGENCY,
DANNY STRONG.LEE DANIELS,HANK AZARIA,

MEMORANDUM & ORDER

BOB LOWRY,IMAGINE TELEVISION,20™ CENTURY
FOX TELEVISION ENTERTAINMENT GROUP AND

15-CV-6714(ENV)
(LB)
x

SUBSIDIARIES, LITTLE CHICKEN PRODUCTIONS,
SONY PICTURES TELEVISION,50 CANNON
ENTERTAINMENT,BOB LOWRY TELEVISION,LEE
DANIELS ENTERTAINMENT,DANNY STRONG
PRODUCTIONS. MATTHEW CARNAHAN CIRCUS
PRODUCTIONS,TOUCHSTONE TELEVISION, ABC
STUDIOS,DOES 1-20, and SHOWTIME NETWORK,
Defendants.

VITALIANO,D.J.

Plaintiff Romanus Castro, proceeding pro se, filed an amended complaint on April 14,

2016, alleging that defendants, all involved in the entertainment industry, infringed on his rights
in a manuscript, in violation ofthe copyright laws, by using the manuscript to create the hit
television shows Empire, Dirt and Huff. Dkt. No. 8. Several defendants have appeared and

moved to dismiss or quash service. Plaintiff has been unable to serve other defendants but seek^
defaultjudgment against them nonetheless.
For the reasons that follow, defendants' motions are granted, plaintiffs motions are
denied and the amended complaint is dismissed with prejudice.

Cl<AK

Background^

This is the second lawsuit Castro has brought in this Court relating to the same

screenplay. Castro alleges that, in 2003, he wrote a screenplay, entitled The Summit ofBeauty
and Love (the "manuscript"), about a "music journalist who falls in love with a musician who is

schizophrenic." Dkt. No. 8^5. Castro, sensing that fame and fortune would follow if he could
only get his work into the right hands, sent the manuscript to actor John Cusack through his
agent at the William Morris Agency. Id. Neither Cusack nor his agent ever responded. Id.
On November 7, 2004, the television series Huff premiered on Showtime. Id. ^6. It

soon became apparent to him, so he claims, that "the entirety of[the] story and scenes" in Huff

"were exactly the same" as in the manuscript. Id. Castro could not quite discern why Huffs
executive producer was Bob Lowry,to whom he had not sent the manuscript, or why Huff
starred another actor. Hank Azaria, rather than Cusack. Id. \1. Castro represents he took no

legal action at that time because ofthe financial and emotional toll he endured as a result ofthe
"theft" ofthe manuscript. Id. Huff ended its run in 2006. Id. On January 2, 2007, another
television show. Dirt, premiered on the FX network. Id. ^8. Castro again came to believe that
the manuscript's plotlines and characters had been stolen from him. Id. He alleges that the
stolen manuscript was used yet a third time to create the television show Empire, which
premiered on FOX. Id. H 9.

As might be predicted, the complaint compares characters and scenes in the manuscript

with what Castro alleges are identical, or at least substantially similar, characters and scenes in

'The facts are taken from plaintiffs amended complaint, and all reasonable inferences are dra>^
in his favor, as they must be on a motion to dismiss. Because plaintiff is proceeding pro se, his
pleadings are construed liberally to raise the strongest arguments that they suggest. See
Jorgensen v. Epic/Sony Records^ 351 F.3d 46, 50(2d Cir. 2003).

Huff, Dirt and Empire. See, e.g., id. ^ 10-41. Plaintiff seeks $550 million in compensatory,
punitive and statutory damages for copyright infringement, conversion and conspiracy, as well as
injunctive relief to bar the distribution of Huff, Dirt and Empire. Id. at 31-33.

On September 14,2016, Danny Strong moved to quash service pursuant to Federal Rule
of Civil Procedure 12(b)(5). Dkt. No. 27. On June 29,2017, Lee Daniels Entertainment also
moved to quash service. Dkt. No. 131.
The trek to the courthouse did not end there. Several defendants have filed individual

motions to dismiss: Showtime Networks Inc.("Showtime")and Sony Pictures Television Inc.

("Sony Pictures"), Dkt. No. 84; Touchstone Television Productions, LLC,d/b/a ABC Studios

("ABC"), Dkt. No. 90; Imagine Television, LLC("Imagine Television"), Dkt. No. 92; William

Morris Endeavor Entertainment, LLC,on behalf of William Morris Agency("WMA"),^ Dkt. N
96; Hank Azaria, Dkt. No. 106; Twentieth Century Fox Film Corporation ("Twentieth Century

Fox"), incorrectly sued as 20'*^ Century Fox Television Entertainment Group and Subsidiaries,
Dkt. No. 108;^ and Little Chicken Productions, Inc.("Little Chicken"), Dkt. No. 119.
On March 3, 2017, Magistrate Judge Bloom issued a Report & Recommendation

("R&R"),recommending that plaintiffs amended complaint be dismissed without prejudice

against defendants Lee Daniels, Lee Daniels Entertainment and Danny Strong Productions. Dkti.
No. 110. On November 16, 2018, in light of Castro's sporadic attempts to effect service after
Judge Bloom's R&R had issued, the Court requested that Judge Bloom issue a supplementary
R&R as to "whether these three defendants, and any additional defendants, should be dismissed

^ William Morris Endeavor Entertainment filed the motion as "parent to a successor-in-interest to
certain assets and liability relating to Defendant William Morris Agency's talent and literary
agency business." See Dkt. No. 96-1 at 1 n.l.

^ Imagine Television also filed a joinder in Twentieth Century Fox's motion. Dkt. No. 115.

for lack of proper service or for failure to prosecute." See Order Referring Motion, dated Nov.
16,2018. The Court also referred Lee Daniels Entertainment's motion to quash service. Id.

On February 19, 2018, Judge Bloom issued her supplementary R&R,Dkt. No. 137,"*
recommending that the amended complaint be dismissed without prejudice against defendants
Lee Daniels, Lee Daniels Entertainment, Danny Strong Productions, 50 Cannon Entertainment
and Coquette Productions, pursuant to Rule 4(m), and that plaintiff be afforded 30 days leave to
properly serve defendants John Cusack, Bob Lowry, Bob Lowry Television and Matthew
Carnahan Productions. Castro filed objections to the supplementary R&R on February 26,2019,

Dkt. No. 138, and Lee Daniels Entertainment responded to plaintiffs objections on March 11,
2019. Dkt. No. 142.
I

Standard of Review

Generally, under Rule 12(b), a defendant may move to dismiss a complaint for failure to
state a claim upon which relief can be granted. See Fed. R. Civ. P. 12(b)(6). When reviewing
dismissal motions made under subsection (b)(6), a court "must accept the factual allegations se
forth in the complaint as true and draw all reasonable inferences in favor ofthe [pjlaintiff."
Anzelone v. ARSNat'l Servs., Inc., No. 2:17-cv-04815, 2018 WL 3429906(E.D.N.Y. July 16,

2018). To survive such a motion, a complaint must plead enough facts '"to state a claim to relief

that is plausible on its face.'" Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570,127 S. Ct.
1955, 1974, 167 L. Ed. 2d 929(2007){pipoXmg Ashcroft v. Iqbal, 556 U.S. 662,678, 129 S. Ct

1937,1949,173 L. Ed. 2d 868(2009)). "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

^ Neither Judge Bloom's original R&R nor her supplementary R&R touched on the substantive
merits of Castro's claims. They were limited solely to issues ofservice of process and failure to
prosecute.

for the misconduct alleged." Iqbal, 556 U.S. at 678. Although a plaintiff need not provide

"detailed factual allegations," Twombly,550 U.S. at 555, the pleading rules do demand "more
than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678.
Motions to dismiss can be referred to a magistrate judge for initial determination. In

reviewing a magistrate judge's R&R in such a reference, a district judge "may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28
U.S.C. § 636(b)(1). The response to the initial reference can, as here, result in a supplementary
reference. Ultimately, the district judge need only be satisfied "that there is no clear error on the
face ofthe record" to accept the reviewed R&R,provided no timely objection has been made in

writing. Urena v. New York, 160 F. Supp. 2d 606,609-10(S.D.N.Y. 2001)(quoting Nelson v,
Smith,618 F. Supp. 1186, 1189(S.D.N.Y. 1985)); see also Thomas v. Arn,474 U.S. 140, 150
106 S. Ct. 466, 88 L. Ed. 2d 435 (1985).

The district judge, however, is required to "determine de novo any part ofthe magistrate
judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b)(3); see also Arista
Records, LLC v. Doe 3,604 F.3d 110,116(2d Cir. 2010). Objections that are general,

conclusory, or "merely recite the same arguments presented to the magistrate judge" do not

constitute proper objections and are reviewed only for clear error. Sanders v. City ofNew York,
No. 12-CV-l 13(PKC)(LB),2015 WL 1469506, at *1 (E.D.N.Y. Mar. 30,2015)(citation

omitted). Clear error exists "where, upon a review ofthe entire record,[the districtjudge] is le^
with the definite and firm conviction that a mistake has been committed." Saveria JFK, Inc. v. j

I !

Flughafen Wien, AG,No. 15-CV-6195(RRM)
(RLM),2017 WL 1194656, at *2(E.D.N.Y. Mai:
30, 2017).

Here, of course, Castro's complaint has come under fire from multiple defendants on

multiple theories, not all of which were referred to Magistrate Judge Bloom or fall within the
ambit of her R&R. Those motions not referred deal, principally, with the substantive propriety

of the amended complaint. They are reviewed by the Court de novo in line with the standard
articulated above.

Discussion
I.

Threshold Barriers

a. Resjudicata

The amended complaint's allegations concerning Huff are barred by dictates of res

judicata as to defendants Hank Azaria, WMA,Showtime, Bob Lowry, Sony Pictures and 50
Cannon Entertainment. More than a decade ago, Castro filed a copyright infnngement action

against many ofthe same defendants named in the instant complaint, based solely on Huffs
alleged infringement ofthe manuscript. That action was dismissed with prejudice, pursuant to

28 U.S.C. § 1915(e)(2)(B),^ after the Court granted Castro two opportunities to amend. See
Order and Civil Judgment, Dkt. No. 7, Castro v. Azaria, No. l:06-cv-03853-ENV-LB; cf.

Cieszkowska v. Gray Line New York, 295 F.3d 204, 206(2d Cir. 2002)(affirming dismissal of

pro se complaint on principles of resjudicata where plaintiffs prior complaint, arising out ofthe
same events, was dismissed for failure to state a claim, pursuant to § 1915(e)(2)(B)); Bey v. City

ofNew York,454 F. App'x 1, 5-6(2d Cir. 2011)(summary order)("[T]his Court has held that
res judicata applies to pro se plaintiffs whose claims in a second action are based on the same

factual predicates presented in the first action."). Castro, therefore, cannot revive his claims

^ Under § 1915(e)(2)(B), a district court shall dismiss an action if it is "frivolous or malicious"|or
"fails to state a claim on which relief may be granted[.]" § 1915(e)(2)(B)(i)-(ii). The provision

"provide[s] an efficient means by which a court can screen for and dismiss legally insufficient
claims." Abbas v. Dixon, 480 F.3d 636,639(2d Cir. 2007).

against Hank Azaria, WMA,Showtime, Bob Lowry, Sony Pictures and 50 Cannon
Entertainment relating to Huffs alleged infringement of his rights in the manuscript,
b. No Proper Service of Process
i. Danny Strong

On July 29, 2016, a summons was returned reflecting that it was executed on Danny

Strong at 405 Lexington Ave., lO^'' Floor, New York, New York 10174. See Dkt. No. 12.

Strong, however,does not live or work at that address or have a registered agent who can accepjt
service there; it is, in fact, the address of Creative Artists Agency("CAA"), which is one of

Strong's entertainment representatives. Dkt. No. 27-1 at 3;see also Dkt. No. 27-2 ^ 3(Decl. of
Danny Strong)("I do not live at this address, I am not employed at this address, I do not

regularly transact business at this address, and I do not hold this address out as my place of
business.").^ Nonetheless, counsel for Strong offered to accept service on his behalf if Castro

granted Strong a reasonable period oftime to respond to the amended complaint. Dkt. No. 27-^=1
^ 3. Castro refused. Dkt. No. 27-6 at 2.

This skirmish is fundamental. "Before a federal court may exercise personal jurisdictio

over a defendant, the procedural requirement of service ofsummons must be satisfied." Omni

Capital Int'l, Ltd v. Rudolf Wolff& Co.,484 U.S. 97,104,108 S. Ct. 404,409,98 L. Ed. 2d 4
(1987). On a Rule 12(b)(5) motion,"the plaintiff bears the burden of establishing that service
was sufficient." Khan v. Khan,360 F. App'x 202,203(2d Cir. 2010)(summary order). Castro

did not satisfy the essential requirements of service prescribed by Rule 4(e). By his own

account, he did not deliver process to Danny Strong personally, at his "dwelling or usual place of

^ There is no dispute over Strong's assertions in the record.

abode" or to his authorized agent for service.^ See Fed. R. Civ. P. 4(e)(2). Nor did he serve
Danny Strong at his "actual place of business," as is permitted under New York law. See N.Y

C.P.L.R. § 308;see also Fed. R. Civ. P. 4(e)(1)(providing that service may be effectuated by

"following state law" in the state where the district court is located). As a result, Danny Strong's
motion to quash service must be granted.
ii. Lee Daniels Entertainment

The supplementary R&R outlines the extraordinary efforts Judge Bloom has taken to
facilitate for plaintiff the service of process on various otherwise unserved defendants. Despite
the grant of at least five chances to do so, Castro has failed to properly serve Lee Daniels
Entertainment with process; that is, in a manner compliant with either California or New York

state procedure. Dkt. No. 137 at 8. As Judge Bloom correctly observed,"New York law simp y
does not allow service on a corporation by mail.... While California does allow service on a

corporation by mail, plaintiff has not complied with sections 416.10, 415.20, or 415.30 ofthe
California Code of Civil Procedure." Id. With that understanding, she recommended that Lee

Daniels Entertainment's motion to quash service be granted as well. This has drawn plaintiffs

objection, in conclusory fashion, that the "blame lies squarely with the defendants, who have
done all they can to avoid answering the complaint." Dkt. No. 138 at 2(emphasis original).
But, regardless of their rank, every defendant is entitled to proper service, and it is the
plaintiff's obligation to satisfy that requirement. Indeed, in placing blame on defendant, Castro

acknowledges that the obligation to effect service of process, which rests with him, has not been

^ Castro asserts that "[a] receptionist named 'Gram' accepted service on behalf of Strong" at tfie
offices of CAA. See Dkt. No. 27-8 at 1. He,therefore, admits not only that he did not serve

Strong personally, but also that Strong does not live at that address. Id.("Of course Danny
Strong does not live at the offices of CAA ....").

met. The Court adopts Judge Bloom's recommendation that Lee Daniels Entertainment's motion
to quash service, Dkt No. 131, be granted.
iii. John Cusack, Bob Lowry, Bob Lowry Television, Matthew Ceimahan

Circus Productions, Coquette Productions, Lee Daniels, Danny Strong
Productions and 50 Cannon Entertainment

Judge Bloom also determined that proper service was not effected on John Cusack, Bob
Lowry, Bob Lowry Television, Matthew Camahan Circus Productions, Coquette Productions, s

Lee Daniels, Danny Strong Productions and 50 Cannon Entertainment.^ Dkt. No. 137 at 9.
Although pro se litigants proceeding informa pauperise as Castro is, may enlist the help ofthe
United States Marshals Service to effect service under Rule 4,these litigants are, for obvious

reasons, still responsible for providing the Marshals Service with accurate information to enable
proper service. Id. (citing Meilleur v. Strongs 682 F.3d 56,63(2d Cir. 2012)(affirming

dismissal of complaint for failure to achieve timely service where pro se plaintiff understood "(|^)
the consequences of failing to comply with the court's orders and(b)the opportunities she had
communicate with the court to ensure her compliance and thus, potentially, to stave offthose

consequences")). Here, Castro has been "given five chances to provide the Marshals with proper
service addresses for [these] defendants since he filed this case in November 2015." Dkt. No.
137 at 11. Almost four years later, he has still failed to do so.

Judge Bloom recommended that plaintiff be afforded 30 days leave from the date this
Order is entered to properly serve defendants John Cusack, Bob Lowry,Bob Lowry Television

® The Court assumes familiarity with Judge Bloom's reasons for why service was improper as t:<
each of these defendants, and it need not, and does not, repeat them now. See Dkt. No. 137 at
11-15.

and Matthew Camahan Production and 45 days leave to file proof of proper service, and that if
plaintiff still failed, the amended complaint be dismissed without prejudice against these

defendants.^ This is appropriate where the pleading has arguable merit. For the reasons that
follow, however, affording additional time to serve the remaining defendants would be futile anc
is declined.

II.

Claims for Conversion and Consniracv and Punitive Damages

Castro's state law conversion and conspiracy claims must be dismissed with prejudice
because they are preempted by his claim under the Copyright Act. "The Copyright Act

exclusively governs a claim when:(1)the particular work to which the claim is being applied
falls within the type of works protected by the Copyright Act under 17 U.S.C. §§ 102 and 103

and(2)the claim seeks to vindicate legal or equitable rights that are equivalent to one of the
bundle of exclusive rights already protected by copyright law under 17 U.S.C. § 106."

Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305(2d Cir. 2004). The first prong

ofthe preemption test is called the "subject matter requirement" and the second prong is called
the "general scope requirement." Price v. Fox Entm 't Grp., Inc., 473 F. Supp. 2d 446,457

(S.D.N.Y. 2007). "The subject matter requirement is satisfied ifthe claim applies to a work of
authorship fixed in a tangible medium of expression and falling within the ambit of one ofthe
categories of copyrightable works. The general scope requirement is satisfied only when the
state-created right may be abridged by an act that would, by itself, infringe one ofthe exclusive

rights provided by federal copyright law." Id. In this instance, both prongs are easily satisfied
All of these claims are directly hinged to plaintiffs rights in his manuscript and defendants'

^ Judge Bloom did not recommend that plaintiff be given additional leave against other
defendants for this purpose. Such further leave is clearly unwarranted.

10

alleged interference with themJ®
As courts in this circuit have noted, state law claims for conversion and conspiracy, to ttie

extent they are cognizable, are typically preempted by the Copyright Act. Price, 473 F. Supp. 2d
at 461 (state law claims for conversion and conspiracy, among others, fail to "include any extra
elements that make them qualitatively different from a claim for co-authorship under the
Copyright Act"); see also Kelley v. Universal Music G/77., No. 14 CIV. 2968 PAE,2015 WL
6143737, at *6(S.D.N.Y. Oct. 19, 2015)(claim alleging "conspiracy to swindle" plaintiff out of
earnings preempted by Copyright Act); Patrick v. Francis, 887 F. Supp. 481,484(W.D.N.Y

1995)("[A] conversion claim contains no elements qualitatively different from plaintiffs rights

under the Copyright Act."). Castro has no substantive response to this fatal flaw in the pleading
of his conversion and conspiracy claims. He offers nothing more than a repeat performance that

the amended complaint plausibly alleges these claims and that he has been engaged in "more
than a decade long struggle for justice." Dkt. No. 90-13 at 13.

As for punitive damages, Castro simply reiterates his belief that defendants "willfully arid
with malice[] stole copyrighted intellectual property-and promulgated the work to all their
cronies." Id. at 14. But, regardless ofthe depth of his lament, he cannot overcome the fact tha
"punitive damages are not available under the Copyright Act." Oboler v. Goldin, 714 F.2d 21
I

213(2d Cir. 1983). And,obviously, punitive damages are unrecoverable in his now dismissedj
state law claims. Accordingly, plaintiffs conversion and conspiracy claims are dismissed with
prejudice and his request for punitive damages is struck.

Additionally, even if not subject to preemption. New York law does not recognize a right of
civil action for conspiracy. See Dickinson v. Igoni, 76 A.D.3d 943,945,908 N.Y.S.2d 85, 88(Id
Dep't 2010)("[A] claim alleging conspiracy to commit a tort stands or falls with the underlyin
tort.").

11

III.

Copyright Infringement

a. Imagine Television

The amended complaint pleads no factual allegations against Imagine Television—it is,
simply, identified as a producer of Empire. Dkt. No. 8 at 2. As noted earlier, district courts are

required to afford pro se pleaders solicitude, not the use of a Ouija board. Where no fact beyont
the name of a defendant is pleaded, there is nothing to liberally construe. In this cold factual

world, it is plain that the amended complaint fails to allege or raise a plausible inference that
Imagine Television ever had access to plaintiffs work, which might offer circumstantial

evidence of copyright infringement. See Jorgensen v. Epic/Sony Records, 351 F.3d 46,51 (2d
Cir. 2003). Castro's response -that the "culpability of all EMPIRE defendants will be address
when and if they make a plea," see Dkt. No. 92-5 at 2- is woefully insufficient to meet

elemental pleading requirements and rescue his second-chance complaint against Imagine
Television. Castro's claim for copyright infringement must be dismissed as to Imagine
Television.

b. Hank Azaria

In a similar fashion, the amended complaint makes no allegation that Azaria, one of the

actors who appeared in Huff, engaged in any act of copyright infringement. "In order to
establish a claim of copyright infringement,'a plaintiff with a valid copyright must demonstrate

that:(1)the defendant has actually copied the plaintiffs work; and(2)the copying is illegal
because a substantial similarity exists between the defendant's work and the protectible elements

of plaintiffs [copyrighted work].'" Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602.

F.3d 57,63(2d Cir. 2010). Castro's allegation that Azaria starred in Huff and was a producer op
the show,at most, places him at the "scene" of what Castro asserts, in conclusory fashion, was

12

an act of copyright infringement. Other than his connection to Huff by occupation, no act or

omission is pleaded against him. That is nowhere close to being sufficient to plausibly allege
that Azaria is "liable for the alleged misconduct." See Thayil v. Fox Corp., No. 11 CIV.4791
SAS,2012 WL 364034, at *4(S.D.N.Y. Feb. 2, 2012). Castro's claim for copyright
infringement must be dismissed as to Azaria.
c. Little Chicken

The beat goes on with Castro's claim against Little Chicken. The amended complaint
sets forth no factual allegations that Little Chicken either had access to, or actually copied, the
manuscript or that it was involved in any purported infringement. See, e.g., Dkt. No.8 H 57

(referring to llene Chaiken, Little Chicken's principal, as having "steely self-assurance and beli ef
... in the lie that [she] created this plaintiffs work"); but see Intersong-USA v. CBS, Inc., 757 F

Supp. 274,281 (S.D.N.Y. 1991)("A plaintiff must offer significant, affirmative and probative
evidence to support a claim of access. Conjecture or speculation of access will not suffice.")

(internal citations omitted). In the complete absence offactual allegations even suggesting Little
Chicken's infringement, Castro's copyright claim against it must be dismissed.
d. William Morris Agency

By alleging that Castro sent the manuscript to "Cusack in care of his agent Gaby

Morgerman at The William Morris Agency," Dkt. No. 8 H 5,the amended complaint at least

arguably points to a connection—^remote as it is—^between the manuscript and WMA. That is
not only where the amended complaint's allegations begin, however, but also where they end.
The amended complaint fails to allege, for instance, that WMA had any role in the creation,
broadcast or dissemination ofthe three works that Castro claims infnnged on his copyright to the

manuscript. See Peter F. Gaito Architecture, LLC,602 F.3d at 63(defendant must have

13

"actually copied" the copyrighted work). On review of his opposition, Castro offers nothing
substantive to rebut this conclusion. Accordingly, the copyright claim against WMA must be
dismissed.

e. Showtime, Sony Pictures, ABC and Twentieth Century Fox
Four ofthe defendants have filed motions to dismiss, in which several ofthe remaining

defendants have joined, alleging that, as a matter of law, copyright infringement did not occur
here. Showtime and Sony Pictures have moved to dismiss copyright infringement relating to
Huff, ABC has moved to dismiss relating to Dirt and Twentieth Century Fox has moved to

dismiss relating to Empire. For the reasons stated earlier, Castro's claim of copyright

infringement, as it concerns Huff, is barred by resjudicata. The Court, accordingly, need not
delve further into Showtime and Sony Pictures's motion to dismiss. Their motion must be
granted with prejudice.

Castro's claim of copyright infringement, as it concerns Dirt and Empire, is no more
meritorious that the claim related to Huff. Although questions of non-infringement"have

traditionally been reserved for the trier offact,... it is entirely appropriate for a district court to

resolve that question as a matter oflaw" if no reasonable jury could find that subject works are
substantially similar. Peter F. Gaito Architecture, LLC,602 F.3d at 63-65("[W]e see no error in
the district court's decision to resolve the question of substantial similarity as a matter oflaw on

a Rule 12(b)(6) motion to dismiss."). In other words,the Court need not allow a copyright claip

to proceed to discovery if, as a matter oflaw, a comparison ofthe protected work with the
allegedly infringing works reveals no plausible inference of infringement.

Castro's claim for copyright infringement must be dismissed because no genuine dispute
of material fact exists as to the core elements of his claim: whether ABC or Twentieth Century

14

Fox actually copied the manuscript, and whether any substantial similarity exists between the

manuscript's protectible elements and either Empire^' or Dirt. Castro falls at the outset by
completely failing to plead "actual copying" of his manuscript. "Because direct evidence of

copying is seldom available, a plaintiff may establish copying circumstantially 'by demonstratini
that the person who composed the defendant's work had access to the copyrighted material.'"

Jorgensen, 351 F.3d at 51. A plaintiff that adequately pleads "access" must then show sufficient
similarities between the two works to raise an inference of actual copying. Id. (citing Repp v.

Webber, 132 F.3d 882,889(2d Cir. 1997)). Unpublished works, such as the manuscript, are

"considered not to have been widely disseminated." Gal v. Viacom Int'l, Inc., 518 F. Supp. 2d
526,538(S.D.N.Y. 2007).

Castro simply cannot connect the dots between John Cusack,to whom he mailed the

manuscript, and any ofthe alleged infringers. Castro's theory relies on wholesale speculation
that, like a regifted Christmas fiuitcake, the manuscript found its way from John Cusack's

agency to an array of actors, talent agencies and production companies. Such bald assertions are;
not sufficient to plausibly allege access. See Gaste v. Kaiserman, 863 F.2d 1061,1066(2d Cir

1988)("Access must be more than a bare possibility and may not be inferred through speculatio
or conjecture."); see also Jorgensen, 351 F.3d at 51 ("Access means that an alleged infiinger had
a 'reasonable possibility'- not simply a 'bare possibility'-of[encountering] the prior work[.]
Castro, furthermore, cannot demonstrate any substantial similarity between the

manuscript and either Empire or Dirt. To be sure, themes he complains were stolen from his
work — love, family relationships, drug usage, mental health concerns — appear in countless

Castro's claim relates only to the first season of Empire. See Dkt. No. 108-1 at 8 n.6.

15

television shows, including, but certainly not limited to. Empire and Dirt. But these elements

are, in reality,"unprotectable scenes afaire.'''^^ Cf. Williams v. A & E Television Networks^ 122
F. Supp. 3d 157, 163-65 (S.D.N.Y. 2015)(dismissing copyright infringement claim where two

works both involved "the idea of a reality show about arranged marriages between strangers" but
where "an objective observer" would not find them to be substantially similar); see also Attia v.

Soc y ofNew York Hosp., 201 F.3d 50,54(2d Cir. 1999)("It is a flmdamental principle of our
copyright doctrine that ideas, concepts, and processes are not protected from copying.").

Any fair and objective review ofthe manuscript's purported "similarities" with Empire

and Dirt convincingly demonstrates that no infringement of protectible ideas occurred here. Th^
manuscript centers on Chase Anderson, a music journalist for Music Slate magazine. Chase's

"interviews lean more tabloid but beneath the tough exterior he has a good heart." Dkt. No.8 ^
10. Chase is assigned by his editor to interview Jared Keller,"a rising pop star." Id. Chase and
Jared "form an unlikely romantic relationship," but Jared is hiding a secret- he has
schizophrenia-that soon becomes the focus ofthe story. Id.
Dirt, on the other hand, is a "Faustian epic drama about the deception and misery

underlying the world oftabloid joumalism."'^ Dkt. No. 90-1 at 2. The show follows "antihero
Lucy Spiller, the powerful and icily beautiful editor-in-chief ofthe tabloid magazine Dirt/Now,

who is joined by her best friend, a functioning schizophrenic who "will do anything, including

Scenes afaire are "scenes that necessarily result from the choice of a setting or situation."
Walker v. Time Life Films, Inc.y 784 F.2d 44, 50(2d Cir. 1986). Copyright protection does not
extend to them, nor does it extend "to copyright or 'stock' themes commonly linked to a
particular genre." Id.

Although "in copyright infringement cases the works themselves supersede and control
contrary descriptions ofthem[,]" Walker v. Time Life Films, Inc., 784 F.2d 44, 52(2d Cir.
1986), Castro does not dispute ABC's and Twenties Century Fox's descriptions of Dirt and
Empire.
16

sacrificing minor body parts, to get Lucy her shot. The drama unfolds around this unlikely
friendship as each week Lucy and her team scramble to break another exclusive cover." Id.
Empire, meanwhile, is a "lush, over-the-top, dialogue-rich contemporary soap opera,

reminiscent of 1980s prime time soap operas such as Dallas and Dynasty, with numerous
characters, twists, tums, and subplots." Dkt. No. 108-1 at 2. Empire centers on "the exploits o
the fictional Lyon family—^rapper-tumed-music mogul Lucious Lyon, his ex-wife Cookie Lyor

who is also an accomplished music producer, and their three sons as they battle for control of
their family's entertainment conglomerate." Id. at 5. Empire's plot is set into high gear when
Lucious tells his sons about his diagnosis with ALS and Cookie is released from prison after
serving a 17-year sentence. Id. at 6. Cookie is "a fiercely loyal and supportive mother, but is

also flawed, showing unconditional love for her gay son" but disapproving of another son's lac
of discipline. Id.

It should be no surprise that there are some similarities between the manuscript, Empire
and Dirt. Even if the Court were to assume that "actual copying" took place here, Castro fails ic

show that any similarities areprotectible by copyright law. Cf. Williams v. Crichton,84 F.3d
581,589(2dCir. 1996):

Williams contends that the children in [his works], and the children in the
Jurassic Park works, Tim and Alexis, along with the respective guides Jake
DuMel and Dr. Grant, are substantially similar. It is true that both Peter and Tim
are dinosaur enthusiasts, that both groups of children are siblings, and that both
guides are intelligent. Likewise, we recognize that in both works the characters
spend the night in the dinosaur zoo and escape from dangerous dinosaurs by
helicopter through the combined wit ofthe children and adults.
These similarities, however, do not suggest infringement.

See also Brown v. Perdue, No.04 CIV. 7417(GBD),2005 WL 1863673, at *6(S.D.N.Y. Aug

4,2005)(dismissing copyright claim where both works in question included "notions of a divine

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feminine, the unity of male and female in pagan worship, the importance of Sophia, the 'Great
Goddess' ofthe Gnostic Gospels, the fact that history is relative and is controlled by victors, not
I

losers, the importance ofthe Roman Emperor Constantino in requiring a transition from a female

to a male dominated religion, as well as to create a unified religion having a common dogma, j
[and] the quest not only for physical objects, but for spiritual fulfillment"), aff'd^ 111 F. App'x
121 (2d Cir. 2006)(summary order).

In sum,the manuscript tells the story of"two emotionally damaged men who fall in love
j

overcome their internal obstacles, and are able to alter the trajectory oftheir lives," Dkt. No. 90-

at 16, a storyline described with such vagaries that it could be applied to countless other works

Revealing that the emperor, in fact, has no clothes, plaintiff concedes that the manuscript
includes ''universal themes ...[including] loss, conflict with parents, sexualit}' and ultimately
triumph over adversity and finding love." Dkt. No. 90-13 at 15 (emphasis added). That those
universal themes also appear in Empire and Dirt speaks to their general nature and does not,
without more, give rise to an inference of copyright infringement. Accordingly, Twentieth
Century Fox's motion to dismiss and ABC's motion to dismiss are granted with prejudice.
IV.

Leave to Amend and Default Judgment

"[L]eave to amend a complaint should be freely given when justice so requires.
However, it is well established that leave to amend a complaint need not be granted when
amendment would be futile." Sodhi v. Mercedes Benz Fin. Servs., USA, LLC,957 F. Supp. 2d

252,255 (E.D.N.Y. 2013)(intemal quotations omitted)(citing Ellis v. Chao, 336 F.3d 114, 12"^
(2d Cir. 2003)). "[A]n amendment to a pleading will be futile if a proposed claim could not
withstand a motion to dismiss pursuant to Rule 12(b)(6)." Ritani, LLC v. Aghjayan, 880 F. Supp

2d 425,440(S.D.N.Y. 2012). There is absolutely no indication that Castro could remedy the

18

complaint's defects if he were given leave to amend it yet again. Castro has failed to plausibly
allege that any defendant^ whether properly served or not, infringed on the manuscript. As a
result, the Court dismisses the amended complaint with prejudice as to all named defendants.

As Castro has not stated a plausible claim for copyright infringement, conversion or
conspiracy against any defendant properly served or not, and for all ofthe other reasons outlined
above, his motions for defaultjudgment, Dkt. Nos. 89, 133, are likewise denied.
Conclusion

For the foregoing reasons, the Court grants the motions to dismiss filed by Showtime arid
Sony Pictures, Dkt. No. 84; ABC,Dkt. No. 90; Imagine Television, Dkt. No. 92; WMA,Dkt.
No. 96; Hank Azaria, Dkt. No. 106; Twentieth Century Fox, Dkt. No. 108; and Little Chicken,

Dkt. No. 119. Imagine Television's motion for joinder is also granted. Dkt. No. 115.

Additionally, upon de novo review,the Court finds Magistrate Judge Bloom's R&R to be
correct, well-reasoned and free ofreversible error. The Court, therefore, adopts the R&R in its

entirety, supplemented by this Memorandum & Order, as the opinion ofthe Court. See Dkt. No

137.'"* In line with Judge Bloom's recommendation, Danny Strong's motion to quash service,
Dkt. No. 27, and Lee Daniels Entertainment's motion to quash service, Dkt. No. 131, are
granted.

Because the Court determines that any prospective amended complaint would be futile
further leave to amend or, for the same reasons, effect proper service is denied.
Plaintiffs motions for defaultjudgment, Dkt. Nos. 89, 133, are denied.

The Court certifies, pursuant to 28 U.S.C. § 1915(a), that any appeal from this
Memorandum & Order would not be taken in good faith and, therefore, informa pauperis is

Judge Bloom's original R&R,Dkt. No. 110, is terminated as moot.
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denied for the purpose of any appeal. See Coppedge v. United States^ 369 U.S. 438,444-45,82
S. Ct. 917,920-21,8 L. Ed. 2d 21 (1962).
The Clerk of Court is directed to send a copy ofthis Memorandum & Order to the pro se

plaintiff, enterjudgment accordingly and close this case.
So Ordered.

Dated: Brooklyn, New York
July 16,2019

/s/ USDJ ERIC N. VITALIANO
ERICN. VITALIANO

United States District Judge

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