The Velvet Underground v. The Andy Warhol Foundation for the Visual Arts, Inc.

Filing 17

MEMORANDUM OF LAW in Support re: 15 MOTION to Dismiss Notice of Motion in Support of Defendant's Motion to Dismiss First Amended Complaint.. Document filed by The Andy Warhol Foundation for the Visual Arts, Inc.. (Paul, Joshua)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
--------------------------------------------------------------x
:
THE VELVET UNDERGROUND, a
Partnership, by its General Partners,
:
John Cale and Lou Reed,
:
Plaintiff,
:
-against:
THE ANDY WARHOL FOUNDATION FOR
THE VISUAL ARTS, INC.,
:
Defendant.

Civil Action No.
12 Civ. 00201 (AJN)

ECF Case

:

--------------------------------------------------------------x
DEFENDANT’S MEMORANDUM OF LAW
IN SUPPORT OF MOTION TO DISMISS
FIRST AMENDED COMPLAINT

March 19, 2012

COLLEN IP
Attorneys for Defendant
The Andy Warhol Foundation For the Visual Arts, Inc.
Jess M. Collen
Joshua Paul
David B. Ewen
The Holyoke-Manhattan Building
80 South Highland Avenue
Ossining, New York 10562
Tel. [phone]

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................................... i

I.

SUMMARY OF ARGUMENT………………………………………………………

1

II.

PLAINTIFF’S FIRST AMENDED COMPLAINT………………………………

2

III.

THIS COURT SHOULD DISMISS ALL FOUR COUNTS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT ………………………………………………….

4

A.

B.

IV.

This Court Lacks Jurisdiction Over the Subject Matter of Plaintiff’s Claim
for Declaratory Relief (Count I) ……………………………………………..

4

Plaintiff’s Remaining Causes of Action Fail to State a Claim for Which
Relief Can be Granted (Counts II, III and IV)……………………………..… 8

CONCLUSION………………………………………………………………. 11

TABLE OF AUTHORITIES
FEDERAL CASES
Barco N.V. v. Technology Properties Ltd.,
No. 08-5398, 2010 WL 604673 (N.D. Cal. Feb. 19, 2010)……………………………… 6

Bell Atlantic Corp. v. Twombly,
550 U.S. 544 (2007)……………………………………………………………………… 9

Binetic Australia, Ltd. v. Nucleonics, Inc.,
495 F.3d 1340 (Fed. Cir. 2007), cert. denied,
553 U.S. 1014, 128 S. Ct. 2055 (2008)…………………………………………………..

5

Crossbow Technologies, Inc. v. YH Technologies,
531 F. Supp.2d 1117 (N.D. Cal. 2007)…………………………………………………..

6

Dow Jones & Co. v. Ablaise Ltd.,
606 F.3d 1338 (Fed. Cir. 2010) ………………………………………………………….

6

ESPN, Inc. v. Quicksilver, Inc.,
586 F. Supp.2d 219 (S.D.N.Y. 2008)…………………………………………………….

8

Furminator, Inc. v. Ontel Products Corp.,
246 F.R.D. 579 (E.D. Mo. 2007)………………………………………………………… 6

Hanover Star Milling Co. v. Metcalf,
240 U.S. 403, 36 S. Ct. 357 (1916)………………………………………………………

9

Houbigant, Inc. v. IMG Fragrance Brands, LLC,
09 Civ. 839, 2009 WL 5102791 (S.D.N.Y. Dec. 18, 2009)……………………………...

9

King Pharms., Inc. v. Eon Labs, Inc.,
616 F.3d 1267 (Fed. Cir. 2010) ………………………………………………………….

6

i

Maryland Casualty Co. v. Pacific Coal & Oil Co.,
312 U.S. 270, 61 S. Ct. 510 (1941)………………………………………………………

5

Marshak v. Green,
746 F.2d 927 (2d Cir. 1984)……………………………………………………………...

11

MedImmune, Inc. v. Genentech, Inc.,
549 U.S. 118, 127 S. Ct. 764 (2007)……………………………………………………..

4, 5

Nike, Inc. v. Already, LLC,
663 F.3d 89 (2d Cir. 2011) ………………………………………………………………

4, 5

Starter Corp. v. Converse, Inc.,
84 F.3d 592 (2d Cir. 1996) (per curiam), abrogated on other grounds by
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127 S. Ct. 764 (2007)……………..

5

Tequila Cuervo La Rojena, S.A. C.V. v. Jim Beam Brands Co.,
No. 10-0203, 2011 U.S. Dist. LEXIS 12290 (S.D.N.Y. Feb. 8, 2011) ………………….

6

Time, Inc. v. Peterson Publishing Co., L.L.C.,
173 F.3d 113 (2d Cir. 1999) ……………………………………………………………

8

Turkmen v. Ashcroft,
589 F.3d 542 (2d Cir. 2009)……………………………………………………………...

9

United Drug Co. v. Theodore Rectanus Co.,
248 U.S. 90, 38 S. Ct. 48 (1918)…………………………………………………………

9

Universal City Studios, Inc. v. Nintendo Co., Ltd.,
578 F. Supp. 911 (S.D.N.Y. 1983), aff’d, 746 F.2d 112 (2d Cir. 1984) ………………… 9

ii

FEDERAL STATUTES
Fed. R. Civ. P. 12(b)(1) ........................................................................................................ 1, 4, 8, 11

Fed. R Civ. P. 12(b)(6).......................................................................................................... 1, 9, 11

28 U.S.C. § 2201(a) .............................................................................................................. 4

TREATISES, LEGISLATIVE REPORTS & OTHER AUTHORITIES

J. Thomas McCarthy,
McCarthy on Trademarks & Unfair Competition
(4th ed. 2012) § 2.20 ............................................................................................................. 9

iii

Defendant The Andy Warhol Foundation for the Visual Arts, Inc. (“Warhol Foundation”)
respectfully submits this Memorandum of Law in support of its motion to dismiss Plaintiff’s
First Amended Complaint.
I.

SUMMARY OF ARGUMENT
Plaintiff’s first cause of action seeks a declaratory judgment that the Warhol Foundation

“has no copyright rights” in a particular design created by Andy Warhol. However, the Warhol
Foundation has provided Plaintiff with a covenant not to sue for copyright infringement of the
design. Because Plaintiff no longer faces an imminent, live threat of suit for copyright
infringement, the declaratory relief sought by Plaintiff no longer presents the Court with a
justiciable controversy. This Court therefore should dismiss Count I of the First Amended
Complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction. Infra. pp. 4 – 8.
Plaintiff’s second, third and fourth causes of action seek injunctive and monetary relief
arising from the Warhol Foundation’s alleged “infringement” and “misappropriation” of various
purported trademark rights supposedly owned by Plaintiff. All three claims suffer from the same
fatal flaw: they presuppose that Plaintiff “owns” an unrestricted property right in the Banana
Design as a trademark, extending to all manner of goods or services as a matter of course.
However, trademark rights exist only in relation to specific goods and/or services. Counts II
through IV of the complaint fail to allege goods or services on which Plaintiff actually uses the
Banana Design as a trademark (and from which Plaintiff’s trademark rights, if any, derive). This
Court therefore should dismiss those Counts under Fed. R. Civ. P. 12(b)(6) for failure to state a
claim upon which relief can be granted. Infra. pp. 8 – 11.

II.

PLAINTIFF’S FIRST AMENDED COMPLAINT
Plaintiff alleges that it is a New York partnership composed of members of the now-

defunct rock group The Velvet Underground. Am. Compl. (D.E. 13), ¶¶ 16, 3. The band was
formed in 1965 by the musicians John Cale and Lou Reed. Id., ¶ 4.
Plaintiff alleges that, in 1966 or 1967, the artist Andy Warhol provided the band with a
drawing of “a banana design and a stylized ‘Andy Warhol’ signature” (the “Banana Design”) for
use on the front cover of the band’s first L.P., called The Velvet Underground and Nico. Id., ¶¶ 5
– 6. A copy of the claimed Banana Design, as depicted by Plaintiff in Exhibit 1 to the First
Amended Complaint, appears below:

Although The Velvet Underground band broke up in 1972, Plaintiff alleges that The
Velvet Underground partnership has engaged in “ongoing [program of] licensed merchandizing
activity.” Id., ¶¶ 8 – 10. The Banana Design, according to Plaintiff, has become a “symbol” or
“icon” of the defunct rock group and is a “significant element” of Plaintiff’s licensing program.
Id., ¶¶ 9, 10.
Defendant Warhol Foundation is a not-for-profit corporation established in accordance
with Andy Warhol’s will after his death in 1987. That year, the Warhol Foundation acquired,

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among other assets, all trademark rights owned by Mr. Warhol at the time of his death, as well as
the copyright rights in various works of authorship created by Warhol. See Am. Compl., ¶ 23
(“the Warhol Foundation is the owner of all right, title and interest in certain copyrighted works
created by Andy Warhol”).
The Warhol Foundation’s mission is to advance the visual arts. See
www.warholfoundation.org. It supports this mission through various activities, including a
licensing program of various artistic works created by Warhol during his lifetime. As part of its
licensing program, the Warhol Foundation has granted third parties the right to use the Banana
Design in connection with a wide range of goods. Am. Compl., ¶¶ 12 - 13, 28 - 29.
In December 2009, the Warhol Foundation learned about and subsequently objected to
Plaintiff’s use of the Banana Design. Plaintiff, in turn, objected to what it called the Warhol
Foundation’s “indiscriminate and unauthorized” licensing of the Banana Design. Id., ¶ 12; 13 –
15.
Plaintiff filed suit against the Warhol Foundation on January 11, 2012 (D.E. 1), and filed
an amended complaint on February 17, 2012 (D.E. 13). Plaintiff’s amended complaint contains
four causes of action, styled as “Counts.”
Plaintiff’s first cause of action (Am. Compl., ¶¶ 21 – 40) seeks a declaratory judgment
that the Warhol Foundation “has no copyright rights in the Banana [D]esign” and that “[t]he use
of the Banana [D]esign by . . . [plaintiff] cannot infringe any copyright rights” owned by the
Warhol Foundation. Id., p. 20 (Prayer for Relief). Plaintiff’s claim for declaratory relief also
seeks an Order requiring the Warhol Foundation to “account for all monies received by
defendant . . . attributable to defendant’s claim that it owns . . . a purported copyright in the
Banana [D]esign.” Id.

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Plaintiff’s second through fourth causes of action seek injunctive and monetary relief
arising from the Warhol Foundation’s alleged “infringement” and “misappropriation” of
trademark rights, which Plaintiff claims to own in the Banana Design. Id., ¶¶ 41 – 51 (second
cause of action – infringement of unregistered trademark pursuant to 15 U.S.C. § 1125[a]); ¶¶ 52
– 63 (third cause of action - unfair competition under New York common law); ¶¶ 64 – 70
(fourth cause of action - “misappropriation” under New York common law).
III.

THIS COURT SHOULD DISMISS ALL FOUR COUNTS OF PLAINTIFF’S
FIRST AMENDED COMPLAINT
A.

This Court Lacks Jurisdiction Over the Subject Matter of Plaintiff’s Claim
For Declaratory Relief (Count I)

The Court should dismiss Plaintiff’s claim for declaratory relief (Count I) pursuant to
Fed. R. Civ. P. 12(b)(1) (lack of subject matter jurisdiction). As we explain infra. pp. 6 - 8, the
Warhol Foundation has provided Plaintiff with a Covenant Not to Sue in connection with the
subject of the declaratory judgment sought by Plaintiff. By operation of law, the Covenant
divests this Court of jurisdiction over the subject matter of Count I.
The Declaratory Judgment Act empowers the federal district courts to “declare the rights
and other legal relations” of the parties in suit, provided that the underlying matter is “a case of
actual controversy.” 28 U.S.C. § 2201(a). The United States Supreme Court has explained that
the statute’s phrase “case of actual controversy” refers to the constitutional requirement that the
federal judicial power extend only to matters that “are justiciable under Article III" of the
Constitution. MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127, 127 S. Ct. 764 (2007).
A case or controversy is “justiciable” within the meaning of the Declaratory Judgment
Act where the adversity of legal interests between the parties is “of sufficient immediacy and
reality to warrant the issuance of a declaratory judgment.” Nike, Inc. v. Already, LLC, 663 F.3d

4

89, 94 (2d Cir. 2011), quoting Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270,
273, 61 S. Ct. 510 (1941). See also MedImmune, 549 U.S. at 127; Aetna Life Insurance Co. v.
Haworth, 300 U.S. 227, 241, 57 S. Ct. 461 (1937) (constitutional requirement of “justiciability”
requires that the parties’ adversity of legal interests between the parties must be “real and
substantial”).
The party seeking declaratory relief must establish the presence of a justiciable case or
controversy throughout the case – not just when the case is filed. Binetic Australia, Ltd. v.
Nucleonics, Inc., 495 F.3d 1340, 1344 (Fed. Cir. 2007), cert. denied, 553 U.S. 1014, 128 S. Ct.
2055 (2008) (party invoking court’s declaratory judgment jurisdiction bears burden of
establishing “that such jurisdiction existed at the time the claim for declaratory relief was filed
and that it has continued since"). Starter Corp. v. Converse, Inc., 84 F.3d 592, 594 - 95 (2d Cir.
1996) (per curiam), abrogated on other grounds by MedImmune, 549 U.S. at 118.
The courts have long held that there is no case or controversy under the Declaratory
Judgment Act where defendant provides plaintiff with a covenant not to sue. The covenant
assures plaintiff that defendant will not pursue the legal claims that caused plaintiff to request
declaratory relief in the first place. With the threat of suit removed, there is no longer a concrete
and immediate (“justiciable”) dispute between the parties.
For example, in Nike, 663 F.3d at 89, defendant’s counterclaim sought a declaratory
judgment that plaintiff’s registered trademark did not warrant legal protection under the Lanham
Trademark Act and that defendant had not infringed any purported trademark of plaintiff. Four
months after defendant filed its counterclaim, plaintiff provided defendant with covenant not to
sue defendant on any cause action for infringement of the trademark in question. Id. at 4. The
Second Circuit affirmed the District Court’s decision to dismiss defendant’s declaratory

5

judgment counterclaim, on the ground that the covenant not to sue had divested the District
Court of jurisdiction over the subject matter of the claim. Id. “We agree with the District
Court,” the appellate panel noted, that “it had no actual case or controversy before it. The
language of the covenant [not to sue] is broad, covering both present and future products,” and is
“unconditional.” Id. at 97 (“the breadth of the Covenant renders the threat of litigation remote or
nonexistent”).
Other courts have similarly held that a broad covenant not to sue removes the threat of
litigation and hence divests a district court of subject matter jurisdiction under the Declaratory
Judgment Act. E.g., Dow Jones & Co. v. Ablaise Ltd., 606 F.3d 1338, 1348 (Fed. Cir. 2010)
(covenant not to sue divested court of jurisdiction over claims seeking declarations of patent
invalidity and non-infringement); Tequila Cuervo La Rojena, S.A. C.V. v. Jim Beam Brands Co.,
Civil Action No. 10 Civ. 0203, 2011 U.S. Dist. LEXIS 12290, *13 (S.D.N.Y. Feb. 8, 2011)
(declaratory judgment defendant’s covenant not to sue “divests this Court of jurisdiction by
eliminating the threat of suit for trademark infringement”); Barco N.V. v. Tech. Props. Ltd., No.
08-5398, 2010 WL 604673, at *1 - *2 (N.D. Cal. Feb. 19, 2010) (same); Crossbow Tech., Inc. v.
YH Tech., 531 F. Supp. 2d 1117, 1122 - 24 (N.D. Cal. 2007) (same); Furminator, Inc. v. Ontel
Prods. Corp., 246 F.R.D. 579, 590 - 92 (E.D. Mo. 2007) (same). See also King Pharms., v. Eon
Labs, Inc., 616 F.3d 1267, 1281 - 83 (Fed. Cir. 2010) (vacating district court's order of invalidity
because the "covenants not to sue confirm that there is no case or controversy" to support subject
matter jurisdiction).
The Warhol Foundation contends that the parties’ pre-suit communications do not
establish a justiciable “case or controversy” with respect to the subject matter Plaintiff’s claim
for declaratory relief (Count I), through which Plaintiffs seeks a declaratory judgment of the

6

scope of any copyright rights the Warhol Foundation may own in the Banana Design.
Nevertheless, in order to avoid protracted and expensive motion practice over the justiciability of
Count I, on March 19, 2012 the Warhol Foundation provided Plaintiff with an unconditional and
irrevocable Covenant Not to Sue Plaintiff for infringement of any copyright right in the Banana
Design. See accompanying Declaration of Joshua Paul executed on March 19, 2012 (“Paul
Decl.”), ¶ 2 and Ex. 1 annexed thereto.
The Covenant Not to Sue executed by the Warhol Foundation covers Plaintiff and all
persons and entities who might conceivably claim rights through Plaintiff, including:
“[a]ny of [Plaintiff’s] . . . partners, members or shareholders, including,
without limitation, John Cale and Lou Reed”;
“[a]ny of parent, subsidiary . . . sales agent, licensing agent, vendee,
assign, independent contract manufacturer, distributor, or person or entity claiming to be
in privity of contract with [Plaintiff] . . . or [with] any of [Plaintiff’s] . . . partners,
members or shareholders”; and
“[a]ny predecessor, successor, officer, director, employee, agent,
distributor, independent contract manufacturer, or assign of” any of person or entity noted
above.
Paul Decl., Ex. 1 at p. 2.
Through the Covenant, the Warhol Foundation has relinquished all right to sue Plaintiff
and the other covered persons/entities “for infringement of any statutory or common law
copyright in the Banana Design under the current, former, or any future copyright law of the
United States.” Id. The Covenant extends to all claims “for infringement of a copyright interest
in the Banana Design arising from all past, current or future activities of” Plaintiff or other

7

covered persons/entities, and applies “regardless of whether said Claim for copyright
infringement accrues before, on, or after the” Covenant’s effective date. Id.
Because Plaintiff no longer faces an imminent, concrete, live threat of suit for copyright
infringement, the declaratory relief sought by Plaintiff no longer presents the Court with a
justiciable controversy. This Court therefore should dismiss Count I of the First Amended
Complaint under Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction.
B.

Plaintiff’s Remaining Causes of Action Fail to State a Claim for Which Relief
Can Be Granted (Counts II, III and IV)

In Counts II, III and IV, Plaintiff complains about the Warhol Foundation’s
“infringement” of Plaintiff’s purported rights in the Banana Design as a trademark. E.g., Am.
Compl., ¶ 45 (Count II – “Defendant’s unauthorized use of the Mark1 . . . .”); id., ¶ 53 (Count III
– “… as a result of defendant’s use of plaintiff’s Mark . . . .”); id., ¶ 65 (Count IV - “Defendant
has diverted to itself value created [by Plaintiff] in the Mark . . . .”).
A party seeking to enforce rights in a trademark must plead and prove that the claimed
mark is “a valid mark entitled to protection.” Time, Inc. v. Peterson Publishing Co. L.L.C., 173
F.3d 113, 117 (2d Cir. 1999). “To state a claim for trademark infringement . . ., plaintiff must
allege facts which establish that her mark merits protection,” ESPN, Inc. v. Quiksilver, Inc., 586
F. Supp. 2d 219, 226 (S.D.N.Y. 2008).
It is axiomatic that a word, symbol, or design can function as a valid trademark only if,
and only to the extent that, plaintiff uses its mark (1) as part of an ongoing business and (2) in
connection with specific goods or services. “There is no such thing as property in a trade-mark
except as a right appurtenant to an established business or trade in connection with which the
1

Throughout the First Amended Complaint, Plaintiff uses the defined terms “Banana Design” and “the
Mark” interchangeably. E.g., Am. Compl., ¶ 1.

8

mark is employed.” United Drug Co. v. Theodore Rectanus Co. 248 U.S. 90, 97, 38 S. Ct. 48
(1918). Accord, Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 414, 36 S. Ct. 357 (1916)
(“a trade-mark is treated as merely a protection for the good-will, and not the subject of property
except in connection with an existing business”); Universal City Studios, Inc. v. Nintendo Co.,
Ltd., 578 F. Supp. 911, 922 (S.D.N.Y. 1983), aff’d, 746 F.2d 112 (2d Cir. 1984) (“Trademark
rights do not exist in the abstract,” but rather only “in connection with a business or product”).
J. Thomas McCarthy, MCCARTHY ON TRADEMARKS & UNFAIR COMPETITION (4th ed. 2012) at §
2.20 (“[a] trademark has no independent significance apart from the good will it symbolizes. If
there is no business and no good will, a trademark symbolizes nothing”).
“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.’” Turkmen v. Ashcroft, 589
F.3d 542, 546 (2d Cir. 2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.
Ct. 1955 (2007)). A claim is facially plausible only where “the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. Pleadings which fail to meet this standard are properly dismissed. See
Houbigant, Inc. v. IMG Fragrance Brands, LLC, No. 09-839, 2009 WL 5102791 (S.D.N.Y. Dec.
18, 2009) (granting Rule 12(b)(6) motion to dismiss complaint for trademark infringement).
Here, Counts II, III and IV of Plaintiff’s First Amended Complaint fail as a matter of law.
Plaintiff’s pleading contains no factual content from which this Court may reasonably infer a
critical element of Plaintiff’s prima facie case – namely, that Plaintiff uses its “mark” (the
Banana Design) as part of an ongoing business and in connection with specifically identified
good(s) or service(s).

9

Plaintiff alleges that the Banana Design is “a symbol, truly an icon, of The Velvet
Underground” and that it “is firmly associated with the rock group The Velvet Underground.”
Am. Compl., ¶¶ 9, 42. See also id., ¶ 10 (Banana Design “symbolize[s] the group and its whole
body of work”). Yet Plaintiff also concedes in its pleading that the band The Velvet
Underground has not been engaged in the music performing business in the United States for 40
years. Am. Compl., ¶ 8 (“[t]he Velvet Underground broke up as a performing unit in 1972”).
Surely, Plaintiff is not engaged in an ongoing business of music performing.
The closest Plaintiff comes to identifying an ongoing business is the wholly conclusory
assertion that the Banana Design is a “significant element of ongoing licensed merchandising
activity” by Plaintiff. Id., ¶ 10 (emphasis added). However, nowhere in the First Amended
Complaint does Plaintiff identify the nature or scope of this purported “ongoing” licensing
program. Although Plaintiff alleges that it once “licensed” the Banana Design for use in an
Absolut Vodka ad, Plaintiff also concedes in its pleading that this event took place 11 years ago
– in 2001. Id., ¶ 9. This factual allegation, even if true, provides no support for Plaintiff’s
allegation of “ongoing” licensing activity.
Plaintiff’s substantive allegations of trademark use are paltry at best. They certainly do
not support the immensely broad scope of relief Plaintiff requests in its Prayer for Relief. Id., p.
21 at §§ B.2 and C.2 (seeking permanent injunction “enjoining and restraining defendant from
licensing or purporting to license, the Banana design for any purpose, including, without
limitation, the manufacture, sale, or marketing of any product that exploits in any way the
Banana design ….” (emphasis added). Plaintiff apparently believes itself entitled to use – to the
exclusion of the Warhol Foundation and others – the Banana Design for all purposes, on all
products and services, and in all ways.

10

Plaintiff has put the cart before the horse. A trademark “has no existence apart from the
good will of the product or service it symbolizes.” Marshak v. Green, 746 F.2d 927, 929 (2d Cir.
1984).
Plaintiff’s pleading does not provide the Warhol Foundation with reasonable notice of the
goods/services for which Plaintiff claims to have used its alleged trademark, and from which
Plaintiff’s alleged trademark rights stem. Because the First Amended Complaint contains no
factual matter from which the Court may plausibly conclude that Plaintiff uses the Banana
Design as a trademark in connection with one or more particular goods or services as part of an
ongoing business, Plaintiff has failed to plead an essential element of its prima facie case. The
Court therefore should dismiss Counts II, III and IV pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be granted.
III.

CONCLUSION
For the foregoing reasons, the Warhol Foundation respectfully requests this Court to

enter an Order (1) pursuant to Fed. R. Civ. P. 12(b)(1), dismissing Count I of Plaintiff’s First
Amended Complaint for lack of subject matter jurisdiction; (2) pursuant to Fed. R. Civ. P.
12(b)(6), dismissing Counts II, III and IV of Plaintiffs’ First Amended Complaint for failure to
state a claim for which relief can be granted; and (3) awarding the Warhol Foundation such other
and further relief as the Court deems necessary, just and proper.

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