Bates et al v. Vandroff et al
ORDER: Out of an abundance of caution, the Court will give Plaintiff fifteen (15) days from the date of this Order to file an amended complaint that sufficiently alleges and addresses both of the deficiencies. Otherwise, th e complaint is subject to being dismissed without prejudice to Plaintiff being able to refile his complaint in state court, since it appears at present that federal court (a court of limited jurisdiction) does not have subject matter jurisdiction over his claims. Signed by the Honorable R. Bryan Harwell on 6/26/2017. (hcic, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Kenneth Ray Bates and
Natalie Maria Pough,1
Sylvia Tawanda Vandroff, Trina Clarkson, )
Marolyn D. Vandroff, Kylee Martin,
Elizabeth Kinder, Shardice Sharp, and
Civil Action No.: 4:17-cv-00361-RBH
This matter is before the Court for consideration of Plaintiff Kenneth Ray Bates’ (“Plaintiff”)
objections to the Report and Recommendation (“R & R”) of United States Magistrate Judge Thomas
E. Rogers, III.2 See R & R [ECF No. 8]; Pl.’s Objs. [ECF No. 10]. The Magistrate Judge recommends
that the Court summarily dismiss Plaintiff’s complaint without prejudice and without issuance and
service of process. R & R at 8.
Standard of Review
The Magistrate Judge makes only a recommendation to the Court. The Magistrate Judge’s
recommendation has no presumptive weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S. 261, 270–71 (1976). The Court must conduct a
de novo review of those portions of the R & R to which specific objections are made, and it may accept,
As the Magistrate Judge explains, Natalie Maria Pough is listed as a plaintiff in the complaint but did not
sign it and may not have standing based on the factual allegations therein. See Complaint [ECF No. 1] at 1, 3.
Moreover, Pough was mailed a copy of the R & R, see ECF No. 9, but did not file objections.
This matter was referred to the Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(e) for the District of South Carolina.
reject, or modify, in whole or in part, the recommendation of the Magistrate Judge or recommit the
matter with instructions. 28 U.S.C. § 636(b)(1).
The Court must engage in a de novo review of every portion of the Magistrate Judge’s report
to which objections have been filed. Id. However, the Court need not conduct a de novo review when
a party makes only “general and conclusory objections that do not direct the [C]ourt to a specific error
in the [M]agistrate [Judge]’s proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d
44, 47 (4th Cir. 1982). In the absence of specific objections to the R & R, the Court reviews only for
clear error, Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the Court
need not give any explanation for adopting the Magistrate Judge’s recommendation. Camby v. Davis,
718 F.2d 198, 199–200 (4th Cir. 1983).
Plaintiff, proceeding pro se, has filed this action alleging claims related to the publication and
sale of his book Law of Necessity vs. Criminal Mind of Society on Amazon.com by Defendants.3 See
Complaint [ECF No. 1]. The Magistrate Judge recommends summarily dismissing Plaintiff’s complaint
for lack of subject matter jurisdiction because (1) no diversity jurisdiction exists under 28 U.S.C. § 1332
and (2) no federal question jurisdiction exists under 28 U.S.C. § 1331. R & R at 4–8.
Plaintiff objects4 to the Magistrate Judge’s conclusion that this Court lacks federal question
According to the allegations in the complaint, Plaintiff is a federal prisoner housed at a correctional facility
located in W est Virginia, and Defendants are employees of various publishing companies that have a mailing address
in Mullins, South Carolina. See Compl. at 2, 4, 6.
Plaintiff does not specifically object to the Magistrate Judge’s proposed findings that (1) Natalie Pough (who
is listed as a co-plaintiff) did not sign the complaint and may not have standing based on the factual allegations; (2)
there is no basis for diversity jurisdiction pursuant to 28 U.S.C. § 1332(a) because Plaintiff has failed to allege an
amount-in-controversy exceeding $75,000; and (3) Plaintiff pleads no facts to support claims under 42 U.S.C.
§§ 1983, 1985, and 1986. See R & R at 2–3, 6. The Court discerns no clear error in these findings. See generally
Diamond, 416 F.3d at 315–16 (stating that absent specific written objections to the magistrate judge’s
recommendation, a district court need only review a proposed finding for clear error).
jurisdiction over his copyright infringement claim. See Pl.’s Objs. at 2–4; R & R at 6–8. The
Magistrate Judge makes two proposed findings regarding the copyright infringement claim. First, the
Magistrate Judge finds Plaintiff’s complaint does not allege ownership of a valid copyright, which is
one of two elements necessary to state a claim for copyright infringement. R & R at 7; see Feist
Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (“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.”). Second, the Magistrate Judge finds Section 411(a) of the Copyright Act
requires that a copyright must be registered before a copyright infringement claim can be filed—while
this requirement is not jurisdictional, it is a statutory precondition. R & R at 7; see 17 U.S.C. § 411(a)
(providing that “no civil action for infringement of the copyright in any United States work shall be
instituted until preregistration or registration of the copyright claim has been made”); Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154, 157–58 (2010) (holding § 411(a) is not jurisdictional but is a statutory
precondition to filing a copyright infringement suit).
In his objections, Plaintiff references and attaches a “self publishing agreement” that he entered
into with ELI Solutions (a publishing company associated with Defendants). See Pl.’s Objs. at 3–4;
ECF No. 10-1 (agreement). Plaintiff claims he “did in fact pay [Defendants] $565.00 and $35.00
covering services outlined” in the agreement, “which also included [Plaintiff’s] copyright and
registration obligations with the [L]ibrary of [C]ongress.” Pl.’s Objs. at 3. The agreement provides in
relevant part that, “The author maintains that he or she is the sole author of work, and owner of the
copyright and all of the contents of the work and has full power to enter into this Agreement[.]” ECF
No. 10-1 at 1 (emphasis added). Plaintiff further seeks permission to amend his complaint with these
allegations and to “submit documentation showing [Defendants] are in violation of the copyright
mandates.” Pl.’s Objs. at 4.
Arguably, Plaintiff alleges ownership of a valid copyright by way of his objections and attached
self publishing agreement, and therefore he may plausibly state a copyright infringement claim for
purposes of federal question jurisdiction. Thus, the Court would usually grant Plaintiff leave to file an
amended complaint including this allegation—except that would not entirely cure his pleading defect,
as discussed below. See generally Fed. R. Civ. P. 15(a)(2) (“The court should freely give leave [to
amend] when justice so requires.”); Goode v. Cent. Virginia Legal Aid Soc’y, Inc., 807 F.3d 619, 628
(4th Cir. 2015) (“It is this Circuit’s policy to liberally allow amendment in keeping with the spirit of
Federal Rule of Civil Procedure 15(a).”).
However, Plaintiff has not indicated in any filings whether he can satisfy the statutory
precondition of 17 U.S.C. § 411(a). See Muchnick, 559 U.S. at 157 (“Subject to certain exceptions, the
Copyright Act (Act) requires copyright holders to register their works before suing for copyright
infringement.”). Specifically, Plaintiff has not alleged he has a valid copyright registration or
preregistration for his book. His mere assertion that his book is protected by a valid copyright is not
equivalent to alleging and proving the existence of a valid copyright registration.5 See, e.g., Staggs v.
West, 2010 WL 2670979, at *3 (D. Md. June 25, 2010) (“[Plaintiff’s] repeated claim that his sound
recording is protected by a valid copyright is not tantamount to alleging and proving the existence of
a valid copyright registration.”); see generally Cody Foster & Co. v. Urban Outfitters, Inc., 2014 WL
To the extent Plaintiff claims Defendants were obligated to register his copyright pursuant to the terms of
the self publishing agreement, this claim at best is a breach of contract claim. Defendants’ alleged failure to register
Plaintiff’s copyright is not equivalent to alleging the existence of a valid copyright registration.
Additionally, Plaintiff cites several exceptions to the registration requirement of § 411(a), none of which
are applicable to his case. See Pl.’s Objs. at 3 (citing 17 U.S.C. § 106A(a) (“the author of a work of visual art”); 17
U.S.C. § 411(a) (non-U.S. works and cases where copyright “registration has been refused [and] the applicant” has
served notice and a copy of the complaint on the Register of Copyrights); and 17 U.S.C. § 411(c) (“a work consisting
of sounds, images, or both”)).
12577100, at *2 (D. Neb. Aug. 11, 2014) (recognizing “ownership of a copyright is not the same as
registration”). More importantly, the online records of the United States Copyright Office do NOT
contain a copyright registered to Plaintiff.6 Thus, this case would be subject to dismissal based upon
Plaintiff’s apparent failure to satisfy the statutory precondition of 17 U.S.C. § 411(a). See generally
Glenn v. Vandross, No. 3:12-cv-00763-CMC-SVH, 2012 WL 1719192, at *2 (D.S.C. Apr. 27, 2012)
(“Within the Fourth Circuit, district courts have applied Muchnick in analyzing copyright infringement
claims relating to unregistered works and, where appropriate, have dismissed such claims.” (internal
quotation marks omitted)), adopted by 2012 WL 1745582 (D.S.C. May 16, 2012).
Out of an abundance of caution, the Court will give Plaintiff fifteen (15) days from the date
of this Order to file an amended complaint that sufficiently alleges and addresses both of the
deficiencies described above. Otherwise, the complaint is subject to being dismissed without
prejudice to Plaintiff being able to refile his complaint in state court, since it appears at present that
federal court (a court of limited jurisdiction) does not have subject matter jurisdiction over his claims.
IT IS SO ORDERED.
Florence, South Carolina
June 26, 2017
s/ R. Bryan Harwell
R. Bryan Harwell
United States District Judge
“[C]ourts have taken judicial notice of true and correct copies of the Copyright Office’s online record of
registration[.]” BMG Rights Mgmt. (US) LLC v. Cox Commc’ns, Inc., 149 F. Supp. 3d 634, 647 n.5 (E.D. Va. 2015)
(collecting cases); see Copyright Public Catalog, available at http://cocatalog.loc.gov. The Court has reviewed the
Public Catalog and has not found a registered copyright for Plaintiff’s book.
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