Perry et al v. A T V Music, Inc. Ltd et al
Filing
39
REPORT AND RECOMMENDATION: For the reasons stated above, the Magistrate Judge recommends that the motion to dismiss 36 be GRANTED and that this case be DISMISSED with prejudice for failure to allege activity, which occurred within the statute of limitations. Signed by Magistrate Judge Joe Brown on 9/24/13. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(tmw)
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
BARNEY PERRY,
)
)
)
)
)
)
)
)
)
)
Plaintiff
v.
ATV MUSIC, Inc., Ltd;
JEFF SMARR, Executive,
Defendants
TO:
No. 3:13-0227
Judge Sharp/Brown
THE HONORABLE KEVIN H. SHARP
REPORT AND RECOMMENDATION
Presently pending is the Defendants’ motion to dismiss
the
Plaintiff’s
claim
under
Federal
Rule
of
Civil
Procedure
12(b)(6)1 for failure to state a claim upon which relief can be
granted (Docket Entry 36). This motion is supported by a memorandum
of law (Docket Entry 37). The time for a response has long since
passed and Plaintiff has failed to respond to this motion.
The
Magistrate
Judge
recommends
that
the
motion
be
GRANTED and this case be DISMISSED with prejudice.
BACKGROUND
The amended complaint, which now governs this case, was
filed on July 2, 2013 (Docket Entry 32). The named Defendants are
Sony/ATV Music, Inc., Jeff Smarr-Executive. The Plaintiff alleges
copyright ownership of the songs “Walking in Rhythm” and “A Hot Day
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Although the Defendants contend that Plaintiffs did not name the
proper parties and did not affect service of process in accordance with
Rule 4, they have accepted service of process in the matter and will rely
on their motion to dismiss for failure to state a cause of action rather
than other grounds.
Today.” The Plaintiff alleges that the Defendants are using these
songs without his permission as the copyright owner. He further
alleges that they did not send the Plaintiff a compulsory license
in order to establish their legal use of his copyright property. He
alleges that the Defendants have refused to pay the Plaintiff
according to the Plaintiff’s requests for payment and accounting.
The
Defendants
in
their
memorandum
note
that
the
Plaintiff has not alleged that any of the copyright infringement
occurred within the three-year statute of limitations set by 17
U.S.C. § 507(b). The Defendants in their motion have set forth the
procedural history of the case, which began on March 14, 2013, when
the Plaintiff and Perryal Music Company, Inc. filed the original
complaint (Docket Entry 1).
As an initial matter the Plaintiff proceeding pro se
could not file a lawsuit on behalf of a company. There were a
number
of
difficulties
with
the
original
complaint
and
the
attempted service of process. The Magistrate Judge conducted a
telephone conference on June 27, 2013, with the parties about the
matter in an effort to sort out the case at that point. In an order
as a result of that telephone conference (Docket Entry 30), the
Plaintiff was allowed to file an amended complaint that would name
Sony/ATV as the Defendant and would not name Mr. Smarr, since Mr.
Smarr is an executive and not an actual distributor of materials.
The Magistrate Judge suggested that Mr. Perry include with his
complaint copies of his copyrights to the two songs and such
2
information that he has that Sony/ATV has within the statute of
limitations used the material without either obtaining the proper
license or paying the required royalties. Defendants’ counsel
agreed to accept service of process by certified mail.
The Plaintiff’s amended complaint still included Mr.
Smarr as a Defendant. The Plaintiff failed to respond to this
motion and it appears that certified mail sent to him at that
address
was
returned
as
unclaimed.
The
unclaimed
mail
which
contained the Magistrate Judge’s order was also sent by regular
mail and that was not returned.
LEGAL DISCUSSION
As the Defendants point out in their memorandum, under
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 127 S. Ct. 1955, 1965,
167 L. Ed. 2d 868 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 129
S. Ct. 1937, 173 L. Ed. 2d 868 (2009):
Only a complaint that states a plausible claim for relief
survives a motion to dismiss. Determining whether a
complaint states a plausible claim for relief will [] be
a context specific task that requires the reviewing court
to draw on its judicial experience and common sense.
Iqbal at 4, 556 U.S. 662 (internal citations omitted).
The Defendants are correct that under the Copyright Act
no civil action shall be maintained under the provisions of that
act unless it is commenced within three years after the claim
accrued. 17 U.S.C. § 507(b). They argue the Plaintiff has asserted
no facts that allege any activities that were within the three
years prior to Plaintiff brining this lawsuit.
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The Magistrate Judge has reviewed the complaint and must
agree that there is no specific allegation of infringement within
the three years. The materials that Plaintiff has attached to his
complaint date back to the 1970s and many of the documents involve
lawsuits filed in 1996 and 1997. It does appear that the most
recent document, other than a letter Plaintiff sent to counsel for
a defendant in another case, is from 2001 (Docket Entry 32-1, p.
8). None of the documents appear to name Sony/ATV Music Publishing
on Mr. Smarr.
The Plaintiff, in view of the motion to dismiss under
Rule 15, had a right to amend his complaint within 21 days to
attempt to correct the alleged statute of limitations deficiencies.
Unfortunately, the Plaintiff failed to amend his complaint to make
specific allegations of acts within the statute of limitations, or
to even respond to the motion.
The Defendants further argue that the Plaintiff is not
entitled to punitive damages under the Copyright Act and cite the
statute and cases so interpreted. In view of the Magistrate Judge’s
recommendation
that
the
Plaintiff
fails
on
the
statute
of
limitations issue, the Magistrate Judge will not address the
punitive damage aspect of this case.
The statute of limitations is an affirmative defense and
the mere fact that the Plaintiff failed to adequately allege
activity within the statute of limitations in his amended complaint
would not be fatal in the absence of a motion to dismiss on those
4
grounds. Unfortunately for the Plaintiff’s case there is a specific
allegation of a failure to meet the statute of limitations and the
Plaintiff has failed to either further amend his complaint or to
respond. Under these circumstances the Magistrate Judge believes
that the Defendants are entitled to a dismissal of the complaint
with prejudice.
RECOMMENDATION
For
the
reasons
stated
above,
the
Magistrate
Judge
recommends that the motion to dismiss be GRANTED and that this case
be DISMISSED with prejudice for failure to allege activity, which
occurred within the statute of limitations.
Under Rule 72(b) of the Federal Rules of Civil Procedure,
any
party
has
14
days
from
receipt
of
this
Report
and
Recommendation in which to file any written objections to this
Recommendation with the District Court.
Any party opposing said
objections shall have 14 days from receipt of any objections filed
in this Report in which to file any responses to said objections.
Failure to file specific objections within 14 days of receipt of
this Report and Recommendation can constitute a waiver of further
appeal of this Recommendation.
Thomas v. Arn, 474 U.S. 140 106 S.
Ct. 466, 88 L.Ed.2d 435 (1985), Reh’g denied, 474 U.S. 1111 (1986).
ENTERED this 24th day of September, 2013.
/s/
Joe B. Brown
JOE B. BROWN
United States Magistrate Judge
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