DRL Software Solutions, LLC v. Journeypure, LLC
MEMORANDUM OPINION AND ORDER......JourneyPures January 9, 2018 motion to dismiss the copyright infringement and unjust enrichment claims is granted. (Signed by Judge Denise L. Cote on 3/8/2018) (gr)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DRL SOFTWARE SOLUTIONS, LLC,
For the plaintiff:
Galen Joseph Criscione
M. Salman Ravala
Nadin Rabelo Linthorst
Criscione Ravala, LLP
90 Park Avenue, Suite 1700
New York, New York 10016
For the defendant:
Eugene David Kublanovsky
Kublanovsky Law, LLC
817 Broadway, 5th Floor
New York, New York 10003
Joy Boyd Longnecker
Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
Baker Donelson Center, Suite 800
211 Commerce Street
Nashville, Tennessee 37201
DENISE COTE, District Judge:
Defendant JourneyPure, LLC (“JourneyPure”) has moved to
dismiss two of the five claims in this action for failure to state
a claim on which relief can be granted.
JourneyPure contends that
plaintiff DRL Software Solutions, LLC (“DRL”) cannot maintain a
claim for copyright infringement because it has failed to register
the work with the Copyright Office, and that DRL’s unjust
enrichment claim is duplicative of its breach of contract claim.
For the following reasons, JourneyPure’s motion is granted.
The following facts are taken in the light most favorable to
JourneyPure is engaged in the business of providing services
to drug rehabilitation clinics.
DRL contracted to provide a
software platform for JourneyPure’s use between July 2014 and
In June 2016, JourneyPure attempted to terminate
DRL contends that JourneyPure breached the contract
by failing to comply with the provisions of the termination
DRL also contends that JourneyPure disclosed DRL’s
software platform to a third-party, and continues to use software
derived from DRL’s software in the course of its business, in
breach of a separate provision of the contract.
On November 21, 2017, this action was commenced by the filing
of a complaint that asserted claims for breach of contract, unjust
enrichment, fraudulent misrepresentation, innocent
misrepresentation, and copyright infringement.
On January 9,
2018, JourneyPure moved to dismiss the complaint as to the unjust
enrichment and copyright infringement counts only.
A January 10
Order gave DRL an opportunity to amend the complaint, and stated
that it was unlikely that DRL would have a further opportunity to
DRL declined to take that opportunity, and instead opposed
The motion became fully submitted on February 13,
Pursuant to a schedule set at a February 9, 2018 conference
with the parties, fact discovery concludes on June 1, 2018.
In order to survive a motion to dismiss, “a complaint must
plead specific facts sufficient to support a plausible inference
that the defendant is liable for the misconduct alleged.”
Columbia University, 831 F.3d 46, 54 (2d Cir. 2016).
A court must
“accept all factual allegations in the complaint as true and
draw all reasonable inferences in the plaintiff’s favor.”
Tongue v. Sanofi, 816 F.3d 199, 209 (2d Cir. 2016) (citation
“A complaint is deemed to include any written
instrument attached to it as an exhibit or any statements or
documents incorporated in it by reference.”
Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016) (citation
JourneyPure moves to dismiss the copyright infringement claim
on the ground that DRL failed to register the work prior to
The Copyright Act provides that “no civil action
for infringement of [a] copyright in any United States work shall
be instituted until preregistration or registration of the
copyright claim has been made in accordance with” the Act.
U.S.C. § 411(a).
This rule, although not a jurisdictional bar to
a copyright suit, nonetheless is a mandatory precondition that, if
not properly pled, mandates dismissal.
See Reed Elsevier, Inc. v.
Muchnick, 559 U.S. 154, 168-69 (2010); Psihoyos v. John Wiley &
Sons, Inc., 748 F.3d 120, 125-26 (2d Cir. 2014).
DRL does not allege that it has registered or applied to
register any copyright in its work, and it is undisputed that it
Accordingly, the copyright infringement action must be
dismissed for failure to comply with 17 U.S.C. § 411.
In arguing against dismissal, DRL claims that even
unregistered works are properly the subject of copyright
Although DRL is correct that unregistered works can
be entitled to copyright protection, a civil action to enforce
that protection cannot be maintained until that work is
registered, or, possibly, until an application for such
registration has been submitted.
See Psihoyos, 748 F.3d at 126.
Whatever scope of copyright protection DRL could be entitled to
under the Copyright Act, the lack of registration or application
therefor precludes this cause of action.
JourneyPure also moves to dismiss the complaint to the extent
it asserts a cause of action for unjust enrichment, because there
is a valid contract that completely governs the parties’
Under New York law, which the parties agree governs
this action, “[a]n unjust enrichment claim is not available where
it simply duplicates, or replaces, a conventional contract or tort
Corsello v. Verizon New York, Inc., 18 N.Y.3d 777, 790-91
Accordingly, “[a] party may not recover in unjust
enrichment where the parties have entered into a contract that
governs the subject matter.”
Wilson v. Dantas, 29 N.Y.3d 1051,
1063 (2017) (citation omitted).
The unjust enrichment claim in this case must be dismissed
because the contract entirely governs the subject matter.
does not dispute that the unjust enrichment claim effectively
duplicates the breach of contract claim but argues that the claim
is not duplicative because it is pled in the alternative, to
protect its rights in the event that JourneyPure were to dispute
the existence or terms of the contract.
JourneyPure, however, has
unequivocally represented that it does not dispute the existence
of the contract, and that the case will center on parties’
obligations under that contract.
That representation binds
JourneyPure and suffices to result in this claim’s dismissal.
JourneyPure’s January 9, 2018 motion to dismiss the
copyright infringement and unjust enrichment claims is granted.
New York, New York
March 8, 2018
United States District Judge
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