Moos v. Craft Outlet Inc et al

Filing 30

ORDER granting in part and denying in part 26 Defendants' Partial Motion to Dismiss. Signed by Honorable Robin J. Cauthron on 1/19/17. (lg)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JAN LEE MOOS,
Plaintiff,
vs.
CRAFT OUTLET, INC., d/b/a Olde
Memories Collection Corp.,
WAYFAIR, LLC,
WAL-MART.COM USA, LLC,
STAPLES INC., and
AMAZON.COM, INC.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)
)
)

No. CIV-16-750-C

MEMORANDUM OPINION AND ORDER
Defendants have filed a Partial Motion to Dismiss pursuant to Fed. R. Civ. P. 12(b)(6).
According to Defendants, Plaintiff has failed to adequately plead her claims for willful
copyright infringement, vicarious copyright infringement, and contributory copyright
infringement. Plaintiff asserts her claims are adequately pleaded and that Defendants’
Motion should be denied.
Defendants’ request for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) requires the
Court to examine the “specific allegations in the complaint to determine whether they
plausibly support a legal claim for relief.” Alvarado v. KOB-TV, L.L.C., 493 F.3d 1210,
1215 (10th Cir. 2007) (citing Bell Atl.Corp. v. Twombly, 550 U.S. 544, 555-56 (2007), and
Erickson v. Pardus, 551 U.S. 89, 93-94 (2007)). “[T]he mere metaphysical possibility that
some plaintiff could prove some set of facts in support of the pleaded claims is insufficient;

the complaint must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v.
Schneider, 493 F.3d 1174, 1247 (10th Cir. 2007).
1. Willful Infringement
“In the context of a copyright infringement, willfully is defined as ‘with knowledge
that defendant’s conduct constitutes copyright infringement.’” Rocking Chair Enters., LLC
v. Macerich SCG Ltd. P’ship, 407 F.Supp.2d 1263, 1267 (W.D. Okla. 2005) (quoting 4
Nimmer, Nimmer on Copyright § 14.04(B)(3)). “To establish willfulness, [one] must show
that [the alleged infringer] knew that its conduct constituted infringement or that it acted in
reckless disregard of [ones’s] rights.” In re Indep. Serv. Orgs. Antitrust Litig., 85 F.Supp.2d
1130, 1176 (D. Kan. 2000). According to Defendants, Plaintiff has plead only conclusory
allegations in an attempt to satisfy these standards. In response, Plaintiff argues that she
submitted a cease and desist letter to Defendants and despite receipt of that notice of the
existence of a violation of the Copyright Act, Defendants continued to sell infringing
products. Defendants argue these allegations are not set forth in Plaintiff’s Complaint, but
rather only exist in her Response to the Motion to Dismiss. While Plaintiff’s Complaint
could have been more clearly worded, it does allege that Defendants were put on notice and
continued their infringing actions. At this stage of the proceeding, that is sufficient to plead
a claim for willful copyright infringement. Therefore, Defendants’ Motion to Dismiss this
claim will be denied.
2. Vicarious Infringement
2

Defendants next challenge Plaintiff’s claim of vicarious infringement. A claim of
vicarious copyright infringement exists when a defendant profits from direct infringement
“while declining to exercise a right to stop or limit it.” Metro-Goldwyn-Mayer Studios Inc.
v. Grokster, Ltd., 545 U.S. 913, 930 (2005). In order to prove a claim of vicarious
infringement, Plaintiff must prove (1) a direct infringement, (2) that the vicarious infringer
had the ability to control or supervise the alleged direct infringement, (3) that the vicarious
infringer failed to exercise that ability, and (4) had a direct financial interest in the infringing
activity. Viesti Assoc., Inc. v. Pearson Educ., Inc., No. 12-CV-02240-PAB-DW, 2013 WL
4052024, at *7 (D. Colo. Aug. 12, 2013). Defendants argue that Plaintiff has failed to plead
facts in support of the last three of these elements. In response, Plaintiff raises arguments
only of the actions of Craft Outlet; no other Defendant is mentioned. Even as to Defendant
Craft Outlet, Plaintiff’s Complaint is lacking in any factual or plausible allegation to suggest
vicarious infringement by any Defendant. Therefore, Defendants’ Motion to Dismiss
Plaintiff’s claims of vicarious copyright infringement will be granted.
3. Contributory Infringement
Finally Defendants challenge Plaintiff’s claims for contributory infringement. “One
infringes contributorily by intentionally inducing or encouraging direct infringement.”
Grokster, 545 U.S. at 930 (citing Gershwin Pub. Corp. v. Columbia Artists Mgmt, Inc., 443
F.2d 1159, 1162 (2d Cir. 1971)). In her Response, Plaintiff again offers evidence only
against Defendant Craft Outlet. Again, Plaintiff’s Complaint fails to plead any plausible

3

allegation of contributory infringement against any Defendant. Therefore, Defendants’
request for dismissal of Plaintiff’s contributory infringement claim will be granted.
CONCLUSION
For the reasons set forth herein, Defendants’ Partial Motion to Dismiss (Dkt. No. 26)
is GRANTED in part and DENIED in part. Plaintiff’s claims for vicarious copyright
infringement and contributory copyright infringement are dismissed without prejudice. To
the extent Plaintiff wishes to pursue these claims, an Amended Complaint must be filed
within fifteen days of the date of this Order. In all other respects, Defendants’ Motion is
denied.
IT IS SO ORDERED this 19th day of January, 2017.

4