Thayil v. FOX Corporation et al

Filing 58

OPINION AND ORDER:For the foregoing reasons, defendants' motion to dismiss is granted. The Clerk of the Court is directed to close this motion [Docket No. 47] and this (Signed by Judge Shira A. Scheindlin on 2/2/2012) (js)

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. USDCSDNY

DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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Bl..BCfRON1CALLY FILED
DOC It: _ . - . - - - - ­
DATE Fl LED; .2 /.2 / I )

PAUL THAYIL,
Plaintiff,

OPINION AND ORDER

- against­

11 Civ. 4791 (SAS)

FOX CORPORATION, SIMON
COWELL, EMI MUSIC PUBLISHING
COMPANY, SONY MUSIC
ENTERTAINMENT, SIMON FULLER,
19 ENTERTAINMENT, CKX, INC.,
NIGEL LYTHGOE, and NBC
UNIVERSAL,
Defendants.

----------------------------------------------------

)(

SHIRA A. SCHEINDLIN, U.S.D.J.:
I.

INTRODUCTION
Paul Thayil, proceeding pro se, brings this action against Fox

Corporation, Simon Cowell, EMI Music Publishing Company, Sony Music
Entertainment, Simon Fuller, 19 Entertainment, CKX, Inc., Nigel Lythgoe and
NBC Universal, seeking injunctive relief, damages, and punitive damages, alleging
that defendants' acts constitute: (1) copyright infringement; (2) misappropriation of
trade secrets; (3) unfair competition; (4) fraud; (5) conspiracy to defraud; (6)

1

violations of the Racketeer Influenced and Corrupt Organization Act (“RICO”)1;
(7) violations of the Lanham Act2; (8) breach of fiduciary duty; (9) conversion; and
(10) unjust enrichment. Defendants now move to dismiss all of Thayil’s claims,
with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to
state a claim. For the reasons discussed herein, defendants’ motion is granted.
II.

BACKGROUND3
Thayil, who currently lives in Arkansas, is the creator and owner of a

marketing plan, which he created and reduced to writing sometime prior to

1

See 18 U.S.C. §§ 1961 et seq.

2

See 17 U.S.C. § 1126.

3

These facts are drawn from Thayil’s Complaint filed July 12, 2011
(“Compl.”). In addition, since Thayil is proceeding pro se, the factual allegations
made in Thayil’s verified Response to Defendants’ Memorandum of Law in
Support of Their Consolidated Motion to Dismiss the Complaint, and the exhibits
annexed thereto (“Thayil Opp.”) will be treated as part of the Complaint. See Gill
v. Mooney, 824 F.2d 192, 195 (2d Cir. 1987) (considering pro se plaintiff’s
affidavit in opposition to defendant’s motion to dismiss in reviewing district
court’s dismissal of claim).
As discussed below, many of the allegations in the Complaint and the
Thayil Opposition are not entitled to the presumption of truth because they are no
more than conclusory statements and/or threadbare recitals of causes of action. See
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Ashcroft v. Iqbal,
556 U.S. 662, —, 129 S.Ct. 1937, 1950 (2009)). The well pled factual allegations,
however, will be taken as true for the purposes of this motion. See Iqbal, 129 S.Ct.
at 1943.
2

February of 19974 (the “Marketing Plan”).5
The Marketing Plan consists of correspondence outlining Thayil’s
concept for two projects, “Musicflow” and “ShyDancer.”6 The “Musicflow”
project is essentially a multi-city tour of musicians and artists who would be
featured at a concert in each of the seven or eight cities in which they performed.7
“ShyDancer” is a concept for a television show that would air selected tapes of
participants dancing in their own households, free of inhibition.8
Thayil has alleged that the Marketing Plan was a trade secret.9
Sometime in February of 1997, Thayil handed his Marketing Plan to the Herald

4

Thayil implies that he finished the entire Marketing Plan prior to or
during February, 1997, which was the time he allegedly distributed copies to some
of the defendants. See Compl. ¶¶ 2, 12. This inference is undercut, however, by
the fact that some parts of the Marketing Plan were copyrighted in 2000. See
Marketing Plan, Ex. A to Compl., at 1 and 6.
5

See Compl. ¶¶ 2, 12 and 16. See also Marketing Plan.

6

Marketing Plan.

7

Id.

8

Id.

9

See Compl. ¶ 12.
3

Sun Newspaper10 located in Melbourne, Australia (the “Herald”).11 On April 10,
1997, Thayil also hand delivered a copy of the Marketing Plan to EMI Music
London.12 The Marketing Plan was given to the Herald and EMI Music London
“with the aim of possible partnership.”13 Cameron Adams, presumably an
employee of the Herald, sent the Marketing Plan to Sony Music, located in
Melbourne, Australia.14 Several weeks thereafter, Sony returned the Marketing
Plan to Thayil and informed him that it was not interested.15
After receiving a copy either “directly, indirectly or inadvertently,”
Thayil alleges that defendants took the “ideas, data, information, direction and
strategy outlined” in the Marketing Plan.16 Defendants used these parts of the
Marketing Plan to develop and produce “American Idol,” “Dancing With The
Stars,” “So You Think You Can Dance” and “America’s Got Talent” (the

10

The Herald Sun Newspaper in Melbourne, Australia, is an affiliate of
Fox. See id. ¶ 16.
11

See id.

12

See id.

13

Id.

14

See id.

15

See id.

16

Id. ¶ 18.
4

“Shows”).17
Specifically, Thayil alleges that defendants used the following aspects
from the Marketing Plan: (1) meetings with investors to generate funds and
partnerships for the Shows; (2) choosing judges; (3) inviting musicians to take part
in the Shows; (4) working with other major companies across the United States; (5)
after the audition, having contestants say that they were “going to Hollywood” or
“not going to Hollywood”; (6) encouraging contestants to travel between cities; (7)
encouraging contestants to reach the top group of competitors; (8) choosing music
for performances on the Shows; and (9) using “American Idol” as a mechanism to
discover new talent so that defendants could exploit and benefit from their record
sales.18 Thayil also alleges that defendants misappropriated the essence of his
“Musicflow” idea, which was “young amateur musicians [sic] to be given
maximum exposure in major cities, all with the end result [sic] being able to
market and sell their music and CD’s.”19
Thayil further alleges that defendants “entered into agreements to
carry out the scheme of an enterprise through a pattern of racketeering activity to

17

Id.

18

Id. ¶ 19.

19

Thayil Opp. p. 7.
5

defraud [Thayil].”20 Thayil also alleges that defendants’ pattern of racketeering
activity consists of (1) engaging in mail fraud in violation of sections 1341 and
1343 of Title 18 of the United States Code by devising a scheme to defraud to
obtain money or other property by using the United States mail; and (2) violating
sections 2314 and 2315 of Title 18 of the United States Code by willfully causing
the transport of and receipt of stolen goods.21
III.

LEGAL STANDARD
A.

Motion to Dismiss
In deciding a motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), the court “accept[s] all factual allegations in the complaint as
true, and draw[s] all reasonable inferences in the plaintiff’s favor.”22 The court
then evaluates the sufficiency of the complaint under the “two-pronged approach”
suggested by the Supreme Court in Iqbal.23 First, a court “‘can choose to begin by
identifying pleadings that, because they are no more than conclusions, are not

20

Compl. ¶ 31.

21

See id.

22

Wilson v. Merrill Lynch & Co., Inc., — F.3d —, 2011 WL 5515958,
at *6 (2d Cir. Nov. 14, 2011) (quotation marks omitted).
23

129 S. Ct. at 1950.
6

entitled to the assumption of truth.’”24 “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice” to
withstand a motion to dismiss.25 Second, “[w]hen there are well-pleaded factual
allegations, a court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.”26 To survive a Rule 12(b)(6)
motion to dismiss, the allegations in the complaint must meet a standard of
“plausibility.”27 A claim is facially plausible “when the plaintiff pleads factual
content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.”28 Plausibility “is not akin to a probability
requirement,” rather, plausibility requires “more than a sheer possibility that a
defendant has acted unlawfully.”29

24

Hayden, 594 F.3d at 161 (quoting Iqbal, 129 S. Ct. at 1950). Accord
Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010), cert.
denied on other grounds, — U.S. —, 131 S. Ct. 824 (Dec. 13, 2010).
25

Iqbal, 129 S. Ct. at 1949 (citing Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007)).
26

Id. at 1950. Accord Kiobel v. Royal Dutch Petroleum Co., 621 F.3d
111, 124 (2d Cir. 2010), cert. granted, No. 10-1491, 565 U.S. — , 2011 WL
4905479 (Oct. 17, 2011).
27

Twombly, 550 U.S. at 564.

28

Iqbal, 129 S. Ct. at 1949 (quotation marks omitted).

29

Id. (quotation marks omitted).
7

“In considering a motion to dismiss for failure to state a claim
pursuant to Rule 12(b)(6), a district court may consider the facts alleged in the
complaint, documents attached to the complaint as exhibits, and documents
incorporated by reference in the complaint.”30 However, the court may also
consider a document that is not incorporated by reference, “where the complaint
‘relies heavily upon its terms and effect,’ thereby rendering the document ‘integral’
to the complaint.”31 A court may also take judicial notice of “the status of other
lawsuits in other courts and the substance of papers filed in those actions.”32
Where the plaintiff is proceeding pro se, his or her pleadings must be
considered under a more lenient standard than that accorded to “formal pleadings
drafted by lawyers,”33 and his or her pleadings must be “interpret[ed] . . . to raise

30

DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir. 2010)
(citing Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)).
31

Id. (quoting Mangiafico v. Blumenthal, 471 F.3d 391, 398 (2d Cir.
2006)). Accord Global Network Commc’ns, Inc. v. City of N.Y., 458 F.3d 150, 156
(2d Cir. 2006).
32

Schenk v. Citibank/Citigroup/Citicorp, No. 10 Civ. 5056, 2010 WL
5094360, at *2 (S.D.N.Y. Dec. 9, 2010) (citing Anderson v. Rochester-Genesee
Reg’l Transp. Auth., 337 F.3d 201, 205 n.4 (2d Cir. 2003)).
33

Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). Accord
Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (“Because [plaintiff] is a pro
se litigant, we read his supporting papers liberally.”).
8

the strongest arguments they suggest.”34 These same principles apply to briefs and
opposition papers submitted by pro se litigants.35 Notwithstanding liberal
treatment of their pleadings, pro se status does not relieve a plaintiff from
satisfying the pleading requirements prescribed by the Federal Rules of Civil
Procedure.36
B.

Pleading Requirements
1.

Rule 8

“Federal Rule of Civil Procedure 8(a)(2) requires . . . ‘a short and
plain statement of the claim showing that the pleader is entitled to relief.’”37 To
survive a Rule 12(b)(6) motion to dismiss, the allegations in the complaint must
meet the standard of plausibility, as discussed above.38
2.

Rule 9(b)

A complaint alleging fraud must satisfy Rule 9(b)’s requirement that
34

Burgos, 14 F.3d at 790.

35

See Ortiz v. McBride, 323 F.3d 191, 194 (2d Cir. 2003); Burgos, 14

F.3d at 790.
36

See Praseuth v. Werbe, 99 F.3d 402 (2d Cir. 1995) (“Failure to
comply with Rule 8(a) may result in dismissal of a complaint, even if the pleader is
proceeding pro se.”) (citing Prezzi v. Schelter, 469 F.2d 691, 692 (2d Cir. 1972)).
37

Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Fed. R. Civ. P.

8(a)(2)).
38

See Iqbal, 129 S. Ct. at 1949; Twombly, 550 U.S. at 564.
9

“the circumstances constituting fraud . . . be stated with particularity.”39 “This
pleading constraint serves to provide a defendant with fair notice of a plaintiff’s
claim, safeguard his reputation from improvident charges of wrongdoing, and
protect him against strike suits.”40 To comply with the requirements of Rule 9(b), a
plaintiff must: “(1) specify the statements that the plaintiff contends were
fraudulent, (2) identify the speaker, (3) state where and when the statements were
made, and (4) explain why the statements were fraudulent.”41 “Allegations that are
conclusory or unsupported by factual assertions are insufficient.”42
IV.

APPLICABLE LAW
A.

Copyright Infringement
To establish infringement, two elements must be proven: (1)

ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original.43

However, copyright does not protect ideas. It protects

39

Fed. R. Civ. P. 9(b). Accord ATSI Commc’ns, Inc. v. Shaar Fund,
Ltd., 493 F.3d 87, 99 (2d Cir. 2007).
40

ATSI, 493 F.3d at 99 (citing Rombach v. Chang, 355 F.3d 164, 171
(2d Cir. 2004)).
41

Rombach, 355 F.3d at 170 (quotation marks omitted). Accord ATSI,
493 F.3d at 99 (citing Novak v. Kasaks, 216 F.3d 300, 306 (2d Cir. 2000)).
42

ATSI, 493 F.3d at 99.

43

See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361
(1991). The Second Circuit has further defined the second element of copyright
10

only the author’s “particularized expression of the idea.”44
B.

Misappropriation of Trade Secrets45
Unlike copyright protection, the trade secrets doctrine protects “the

discovery of ideas, processes, and systems,” which are explicitly precluded from
coverage under copyright law.46 Trade secret claims47 are grounded in the
defendant’s breach “of a duty of trust or confidence to the plaintiff through
improper disclosure of confidential material.”48
infringement as requiring (1) that defendant copied from plaintiff’s copyrighted
work; and (2) that the copying constituted an improper or unlawful appropriation.
See Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946).
44

Mattel, Inc. v. Goldberger Doll Mfg. Co., 365 F.3d 133, 135-36 (2d
Cir. 2004). Accord Nichols v. Universal Pictures Corp., 45 F.2d 119, 121 (2d Cir.
1930) (a playwright’s copyright was not violated by a movie script on similar
themes).
45

Computer Assoc. Intern., Inc. v. Altai, Inc., 982 F.2d 693, 717 (2d Cir.
1992) (following the “extra element” test unfair competition and misappropriation
claims grounded solely in the copying of a plaintiff’s protected expression are
preempted by section 301).
46

Id.

47

Defendants suggest that New York law controls all of the state law
claims. As Thayil raises no objection to this assumption, I will proceed
accordingly. See Krumme v. WestPoint Stevens, Inc., 238 F.3d 133, 138 (2d Cir.
2000) (implied consent is sufficient to establish choice of law).
48

Altai, 982 F.2d at 717 (“Defendant’s breach of duty is the gravamen
of such trade secret claims, and supplies the ‘extra element’ that qualitatively
distinguishes such trade secret causes of action from claims for copyright
infringement that are based solely upon copying.”).
11

C.

Unfair Competition49
New York courts have noted that there are an “incalculable variety” of

illegal practices falling within the parameters of an unfair competition claim.50 It is
a “broad and flexible doctrine”51 meant to prevent person(s) from “reaping the
fruits of [another person’s] efforts and expenditure”52 or “misappropriati[ng] for
the commercial advantage of one person . . . a benefit or ‘property’ right belonging
to another.”53 An unfair competition claim involving misappropriation is
concerned with (1) the taking and use of the plaintiff’s property; and (2) competing
against the plaintiff’s own use of the same property.54

49

To the extent Thayil’s Complaint could be construed as asserting a
claim for unfair competition under section 1126(b) and (h) of Title 15 of the
United States Code, these sections do not create a separate cause of action for
unfair competition under the Lanham Act. Such a claim is properly construed as
being brought under section 1125 or under state unfair competition laws. See
Empresa Cubana del Tabaco v. Culbro Corp., 399 F.3d 462, 485 (2d Cir. 2005).
50

Roy Export Co. Establishment of Vaduz, Liechtenstein v. Columbia
Broadcasting Sys., Inc., 672 F.2d 1095, 1105 (2d Cir. 1982) (citing Ronson Art
Metal Works, Inc. v. Gibson Lighter Mfg. Co., 3 A.D.2d 227, 230-31 (1st Dep’t
1957)).
51

Roy, 672 F.2d at 1105 (internal citations omitted).

52

International News Serv. v. Associated Press, 248 U.S. 215, 241

(1918).
53

Roy, 672 F.2d at 1105 (internal citations omitted).

54

See id.
12

D.

Common Law Fraud and Conspiracy to Defraud
“The elements of fraud under New York law are: ‘[1] a

misrepresentation or a material omission of fact which was false and known to be
false by defendant, [2] made for the purpose of inducing the other party to rely
upon it, [3] justifiable reliance of the other party on the misrepresentation or
material omission, and [4] injury.’”55 To state a proper claim for conspiracy to
defraud a plaintiff must allege: “(1) a corrupt agreement between two or more
parties; (2) an overt act in furtherance of the agreement; (3) the parties’ intentional
participation in the furtherance of a plan or purpose; and (4) resulting damage or
injury.”56
E.

RICO
A plaintiff claiming a civil RICO violation must allege each of the

claim’s elements, including “(1) conduct, (2) of an enterprise, (3) through a

55

Premium Mortgage Corp. v. Equifax, Inc., 583 F.3d 103, 108 (2d Cir.
2009) (quoting Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413, 421
(1996)).
56

Fezzani v. Bear, Stearns & Co. Inc., 592 F. Supp. 2d 410, 429
(S.D.N.Y. 2008).
13

pattern57 (4) of racketeering activity.”58 In considering civil RICO claims, a court
must be mindful of the devastating effect such claims may have on defendants.59
The statute of limitations for civil RICO claims is four years.60 Additionally,
because an agreement to commit predicate acts is at the heart of a civil RICO
claim, “a RICO civil conspiracy complaint, at the very least, must allege
specifically such an agreement.”61
F.

Breach of Fiduciary Duty
The elements of a claim for breach of a fiduciary obligation are: “[1]

the existence of a fiduciary duty; [2] a knowing breach of that duty; and [3]

57

A “pattern of racketeering activity” must be at least two acts of
racketeering activity as defined by section 1 of Title 18 of the United States Code.
See 18 U.S.C. § 1961(1) and (5).
58

Anatian v. Coutts Bank (Switzerland) Ltd., 193 F.3d 85, 88 (2d Cir.
1999) (citing Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985)). See also 18
U.S.C. § 1962.
59

See Kirk v. Heppt, No. 05 Civ. 9977, 2006 WL 689510, at *2
(S.D.N.Y. Mar. 20, 2006) (“Because the mere assertion of a RICO claim . . . has an
almost inevitable stigmatizing effect on those named as defendants, . . . courts
should strive to flush out frivolous RICO allegations at an early stage of the
litigation.”) (citations and quotation marks omitted).
60

See Agency Holding Corp. v. Malley-Duff & Assocs., 483 U.S. 143,

156 (1987).
61

Hecht v. Commerce Clearing House, Inc., 897 F.2d 21, 25 (2d Cir.

1990).
14

damages resulting therefrom.”62
G.

Conversion
To adequately plead conversion plaintiff must allege: “(1) plaintiff

had legal ownership or an immediate superior right of possession to specific
identifiable personal property, and (2) defendant exercised unauthorized dominion
over the property to the exclusion of the plaintiff’s rights.”63
H.

Unjust Enrichment
Under New York law, to claim unjust enrichment a plaintiff must

allege that: “(1) the other party was enriched, (2) at that [plaintiff’s] expense, and
(3) that ‘it is against equity and good conscience to permit [the other party] to
retain what is sought to be recovered.’”64
I.

Leave to Amend
Rule 15(a)(2) provides that other than amendments as a matter of

course, “a party may amend its pleading only with the opposing party’s written

62

Johnson v. Nextel Commc’ns, Inc., 660 F.3d 131, 138 (2d Cir. 2011).

63

Aetna Cas. & Sur. Co. v. Glass, 428 N.Y.S.2d 246, 247 (1st Dep’t

1980).
64

Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182 (2011)
(internal quotations omitted).
15

consent or with the court’s leave.”65 Although “[t]he Court should freely give
leave when justice so requires,”66 it is “within the sound discretion of the district
court to grant or deny leave to amend.”67 “When a motion to dismiss is granted,
the usual practice is to grant leave to amend the complaint.”68 However, where a
plaintiff inadequately pleads a claim and cannot offer additional substantive
information to cure the deficient pleading, granting leave to replead is futile.69
V.

DISCUSSION
Thayil fails to make factual assertions to support his generalized

accusations of defendants’ wrongdoing. The majority of the Complaint is filled
with conclusory allegations of wrongdoing and violation of various laws, which
are unsupported by factual assertions that would allow this Court to draw a
reasonable inference that defendants are liable for the alleged misconduct. Thayil
has made the argument that many of the factual allegations will be revealed
through discovery. Although plaintiff is not required to produce proof of his
65

Slayton v. American Express Co., 460 F.3d 215, 226 n.10 (2d Cir.
2006) (quotation marks omitted).
66

Fed. R. Civ. P. 15(a)(2).

67

McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir.

2007).
68

Hayden v. County of Nassau, 180 F.3d 42, 53 (2d Cir. 1999).

69

See Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
16

allegations at the pleading stage, that does not relieve Thayil of the requirement
that he state a facially plausible claim, which Thayil has not done. Accordingly,
and for the reasons set forth below, Thayil’s Complaint is dismissed in its entirety
with prejudice.
A.

Ideas Are Not Protectable Under Copyright Law
Taking Thayil’s factual allegations in connection with access70 and

copying as true, Thayil has failed to make factual allegations to support a finding
that the elements of the Marketing Plan, which defendants allegedly copied, were
in fact protected by copyright, or that the alleged copying by defendants amounted
to an unlawful taking.
Thayil alleged that defendants used the “ideas” in the Marketing
Plan.71 As discussed above, copyright does not protect ideas, only the expression
of ideas.72 To the extent that Thayil’s allegations seek redress for a taking of his

70

While Thayil has alleged access and copying by Fox and EMI, he fails
to allege how the remainder of the defendants would have accessed the Marketing
Plan. Although, Thayil set forth facts in his Opposition suggesting some
connections between the defendants, the time line of events is very unclear. See
Thayil Opp. at 5-7. Notwithstanding the tenuous nature of the alleged connections,
I need not reach the issue of access with respect to these defendants, because
Thayil’s copyright infringement claim must be dismissed for other reasons.
71

Compl. ¶ 18.

72

See Mattel, 365 F.3d at 135-36.
17

ideas Thayil’s claim must be dismissed.
Similarly, Thayil’s assertion that defendants unlawfully took the data,
information, and strategy expressed in the Marketing Plan,73 also fails as
defendants’ alleged copying does not amount to an improper or unlawful
appropriation. The elements that were allegedly misappropriated from the
Marketing Plan, as set forth at length in the factual background above, were
essentially generalized strategies or actions, and are too far removed from the
expression to be entitled to protection.
The abstract actions Thayil claims were stolen, such as having
meetings with investors and choosing judges, would reasonably be undertaken by
any commercial venture seeking to create a competitive reality television program
that features amateur performers.74 Assuming defendants copied the Marketing
Plan, appropriating these generalized abstractions would not amount to an unlawful
taking because the series of abstractions at issue here cannot be a protected
expression. Although the test for appropriation is not literal appropriation, abstract

73

See Compl. ¶ 18.

74

Thayil argues that he is not required to plead his case in further detail
until he is allowed discovery on the issue of defendants’ participation (i.e. access
and copying). See Thayil Opp. at 1-2. However Thayil has failed to plead facts
that would allow me to infer that defendants improperly appropriated protected
elements of the Marketing Plan.
18

ideas are not protected.75 The intellectual property Thayil claims defendants
misappropriated, is precisely the type of abstraction that is not protected because it
is too far removed from the protected expression. Additionally, Thayil claims
defendants misappropriated two expressions from his Marketing Plan – “going to
Hollywood” and “not going to Hollywood.”76 However, those expressions are not
in the Marketing Plan.77 As such Thayil’s claim of copyright infringement is
dismissed.
B.

Thayil Has Failed to Allege Facts to Support His Contention that
the Marketing Plan Was a Trade Secret
Thayil has made conclusory allegation that at all times he “considered

[the Marketing Plan] to be a trade secret,” and that the Marketing Plan was
provided to defendants as a trade secret or that defendants understood that the
Marketing Plan was a trade secret.78 Given the conclusory nature of these
allegations, without supporting factual allegations, these assertions are not entitled
to a presumption of truth.79

75

See Nichols, 45 F.2d at 121.

76

Compl. ¶ 19(g).

77

See Marketing Plan.

78

Compl. ¶ 12.

79

See Hayden, 594 F.3d at 161.
19

Thayil failed to allege that he protected the Marketing Plan in a way
that is consistent with the protection of a trade secret or that when the Marketing
Plan was handed to the Herald or EMI Music London, that it was delivered with an
expectation of confidentiality that was agreed to, or understood, by defendants. By
virtue of Thayil’s failure to plead factual content that would allow the Court to
draw an inference that the Marketing Plan was in fact treated as a trade secret or
that there was any duty of trust or confidentiality between Thayil and defendants,
both of which are necessary to state a claim for misappropriation of a trade secret,
this claim also fails.
C.

Thayil Has Failed to State a Claim for Unfair Competition
Thayil has also failed to adequately state a claim for unfair

competition under New York law.80 Taking all of Thayil’s allegations concerning
the allegedly copied materials as true, the Complaint does not allege facts that
would allow this Court to draw the inference that Thayil owned a property right or
a commercial advantage in the Marketing Plan that was appropriated by
defendants. Thayil does not exclusively own a property right in the idea of
80

To the extent Thayil’s mention of section 1126 of Title 15 of the
United States Code, was an attempt to claim unfair competition under section
1125(a), such a claim also fails. Thayil has not alleged ownership in a mark or
trade dress that has been used by defendants nor has he asserted likelihood of
confusion, both of which are required to state a claim under section 1125(a). See
ITC Ltd., v. Punchgini, Inc., 482 F.3d 135, 154 (2d Cir. 2007).
20

exploiting amateur performers, nor does he have the exclusive right to benefit from
meeting with investors to generate funds and partnerships.81 Again, these are the
types of activity that any commercial venture seeking to create a competitive
reality show would undertake. Accordingly, Thayil’s claim of unfair competition
is dismissed.
D.

The Claims of Fraud and Conspiracy to Defraud Must Be
Dismissed
Thayil’s claims of fraud and conspiracy to defraud are also dismissed

as Thayil has failed to state these claims with particularity, as required by Rule
9(b). To this end, Thayil has also failed to plead any of the required elements of
fraud and conspiracy to defraud, namely, misrepresentation, material omission,
inducement, reliance, an agreement, and an overt act in furtherance of that
agreement.82 Accordingly, Thayil’s claims of fraud and conspiracy to defraud are
dismissed.
E.

Thayil’s RICO Claim Is Facially Implausible
Thayil’s RICO claim is also dismissed as it is facially implausible.

Although Thayil has alleged that “[d]efendants entered into agreements to carry
81

Roy, 672 F.2d at 1105 (unfair competition is concerned with
“misappropriati[ng] for the commercial advantage of one person . . . a benefit or
‘property’ right belonging to another.”) (internal quotations omitted).
82

See Equifax, 583 F.3d at 108; Fezzani, 592 F. Supp. 2d at 429.
21

out the scheme of an enterprise through a pattern of racketeering activity to
defraud”83 him, such a conclusory allegation is not entitled to a presumption of
truth. There are no factual allegations to support the contention that defendants
entered into agreements, are employed with or associated with an enterprise, or for
that matter that an enterprise even exists. Moreover, the allegations of the two
underlying acts of racketeering have also been pled as conclusory statements of
violations of law, without any factual assertions to support the inference that
defendants committed wrongdoing.
Thayil’s RICO claim is not plausible. These are precisely the type of
threadbare recitations of the elements of a cause of action that cannot survive a
motion to dismiss. Accordingly, Thayil’s RICO claim is also dismissed.
F.

Breach of Fiduciary Duty, Unjust Enrichment and Conversion
Thayil’s claims of breach of fiduciary duty, unjust enrichment and

conversion are also dismissed. Thayil has not alleged that a fiduciary duty exists
between himself and defendants, nor has Thayil pled facts that would allow this
Court to infer that a fiduciary relationship exists as a matter of law. Additionally,
Thayil has not made allegations to support an inference that defendants were
enriched at his expense. The aspects of the Marketing Plan that Thayil alleges

83

Compl. ¶ 31.
22

defendants took were not novel concepts that caused the success of the Shows or
subsequent enrichment of defendants at Thayil’s expense. Accordingly, Thayil’s
claims of breach of fiduciary duty and unjust enrichment are dismissed.
Lastly, Thayil’s claim of conversion is dismissed because Thayil has
failed to allege that defendants receipt of the Marketing Plan was unauthorized, or
that their possession of it at any time was to the exclusion of Thayil’s rights. To
the contrary, Thayil avers that he gave the Herald and EMI the Marketing Plan.84
Moreover, given that at least one of the defendants, Sony, sent it back, it is obvious
that Thayil was not excluded from possession of the Marketing Plan.
G.

Dismissal With Prejudice
Although leave to amend is typically granted, here it is beyond cavil

that given the opportunity to amend, Thayil would not be able to cure the deficient
pleading.85 Accordingly, granting leave to replead is futile, and Thayil’s claims are
dismissed with prejudice.
84

See Compl. ¶ 16.

85

This is especially true where Thayil has filed similar deficient
pleadings in the United States District Court for the Western District of Missouri,
against many of the defendants. In his order dismissing Thayil’s previous
complaints against some of the defendants, the court noted that “there are serious
issues raised as to whether Plaintiff will ever be able to state a viable cause of
action against these defendants.” Thayil v. Cowell, No. 10 Civ. 3200, 2011 WL
281047, at *2 (W.D. Mo. Jan. 25, 2011). In refiling the case here Thayil has failed
to heed this warning.
23

IV.

CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted.

The Clerk ofthe Court is directed to close this motion [Docket No. 47] and this
case.
SO ORDERED:

Dated:

New York, New York
February 2, 2012

24

- Appearances Plaintiff (Pro Se):
Paul Thayil
1 Oak Forest Place
Maumelle, Arkansas 72113
For Defendant EMI Entertainment World Inc.:
Donald S. Zakarin, Esq.
Ilene S. Farkas, Esq.
M. Mona Simonian, Esq.
Pryor Cashman LLP
7 Times Square
New York, New York 10036
[phone]
For Defendant NBC Universal:
Chelley E. Talbert, Esq.
NBC Universal Media LLC
30 Rockefeller Plaza
New York, New York 10112
[phone]
For Defendants Fox Broadcasting Corporation, Sony Music Entertainment,
19 Entertainment, Inc., CKX, Inc., Nigel Lythgoe, and Simon Cowell:
Rebecca Hughes Parker, Esq.
SNR Denton US LLP
1221 Avenue of the Americas
New York, New York 10020
[phone]
Andrea Kimball, Esq.
Rebecca Stroder, Esq.
SNR Denton US LLP
4520 Main Street, Suite 1100
25

Kansas City, Missouri 64111
[phone]
For Defendant Simon Fuller:
Daniel N. Jocelyn, Esq.
Stephen J. Riccardulli, Esq.
Monica S. Asher, Esq.
McDermott Will & Emery LLP
340 Madison Avenue
New York, New York 10173
[phone]

26