Moses v. YouTube, Inc. et al

Filing 114

ORDER granting 37 Motion to Dismiss; granting 65 Motion to Dismiss; adopting Report and Recommendations re 105 Report and Recommendations.; granting 16 Motion to Dismiss for Lack of Jurisdiction. Signed by Judge Jon Phipps McCalla on 02/11/2014. (McCalla, Jon)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
WESTERN DIVISION

PAMELA MOSES,
Plaintiff,
v.
YOUTUBE, INC., et al.,
Defendant.

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No. 12-2822-JPM-dkv

ORDER ADOPTING THE REPORT AND RECOMMENDATION
ORDER GRANTING MOTIONS TO DISMISS

Before the Court is the Report and Recommendation of
Magistrate Judge Diane K. Vescovo (the “Report and
Recommendation”), filed September 23, 2013 (ECF No. 105),
recommending that the Court dismiss in full Plaintiff Pamela
Moses’s (“Moses” or “Plaintiff”) Complaint pursuant to Rule
12(b)(2) and Rule (12)(b)(6) of the Federal Rules of Civil
Procedure.

For the following reasons, the Court ADOPTS the

Magistrate Judge’s Report and Recommendation, and DISMISSES
Moses’s complaint.
I.

BACKGROUND
On September 21, 2012, Moses filed a pro se Complaint for

copyright and trademark infringement, (Pro Se Compl., ECF
No. 1), accompanied by a motion seeking leave to proceed in
forma pauperis, (ECF No. 2).

On September 24, 2012, the court

issued an order granting Moses leave to proceed in forma
pauperis, (ECF No. 3), and subsequently referred the case to the
pro se staff attorney for screening.
On November 29, 2012, Defendant Shira Krasnow (“Krasnow”)
filed a Motion to Dismiss for Lack of Jurisdiction.
No. 16.)

(ECF

On December 7, 2012, Moses filed a Response in

opposition to defendant Krasnow’s November 29, 2012 Motion to
Dismiss.
2012.

(ECF No. 20.)

(ECF No. 24.)

Krasnow filed a Reply on December 18,

On January 9, 2013, Moses filed a motion

for leave to amend and supplement her original complaint, (Pro
Se Mot. to Amend Compl., ECF No. 27), which the court granted on
January 31, 2013, (Order Granting Leave to Amend, ECF No. 45).
After Moses filed her Amended Complaint and supplement to her
original complaint, Krasnow filed a Motion to Dismiss the
Amended Complaint for lack of personal jurisdiction on February
28, 2012.

(ECF No. 65.)

Moses did not respond to Krasnow’s

Motion to Dismiss her Amended Complaint for lack of personal
jurisdiction.
On January 23, 2013, Defendants YouTube, Inc., YouTube,
LLC, and Google, Inc. (collectively “YouTube”) filed a Motion to
Dismiss Plaintiff’s Amended Complaint under Federal Rule of
Civil Procedure 12(b)(6) or Bifurcate and Stay Claims under
Federal Rule of Civil Procedure 42(b).
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(ECF No. 37.)

On

February 21, 2013, Moses filed a Response in opposition to
YouTube’s Motion to Dismiss.
Reply on March 11, 2013.

(ECF No. 63.)

YouTube filed a

(ECF No. 68.)

Moses’s Complaint alleged Krasnow infringed Moses’s 2005
copyright in a sound recording for “Pimpin Pretty” and her
trademark rights in the brand, logo, music, and name of “Pimpin
Pretty” - along with other variations on that name including
“Pretty Pimp” and “Pimp Pretty.”

(ECF No. 1 ¶¶ 18, 19, 23.)

Moses alleged that Krasnow uploaded her video entitled “Pimp
Pretty” to the YouTube site and “used the protected sound
recording, logo/picture, and trade dress/mark to begin and
promote the infringed works.”

(ECF No. 1 ¶ 33.)

Moses sued

YouTube for authorizing and deriving profit from the
distribution of Krasnow’s “Pimp Pretty” video.

(ECF No. 1

¶¶ 28, 31, 32.)
II.

LEGAL STANDARD
A.

De Novo Review of the Report and Recommendation

Pursuant to federal statute, a district judge “shall make a
de novo determination of those portions of the report or
specified proposed findings or recommendations to which
objection is made.”
P. 72(b)(3).

28 U.S.C. § 636(b)(1); accord Fed. R. Civ.

The judge may accept, reject, or modify the

recommendations of the magistrate judge and may receive
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additional evidence on the matter.

28 U.S.C. § 636(b)(1); Fed.

R. Civ. P. 72(b)(3).
Litigants are required to file specific and timely
objections to a magistrate judge’s report and recommendation
under 28 U.S.C. § 636(b)(1)(C).

Slater v. Potter, 28 F. App’x

512, 513 (6th Cir. 2002) (citing Thomas v. Arn, 474 U.S. 140,
155 (1985)).

“The filing of vague, general, or conclusory

objections does not meet the requirement of specific objections
and is tantamount to a complete failure to object.”

Id.; accord

Thrower v. Montgomery, 50 F. App’x 262, 263 (6th Cir. 2002)
(“[N]ot only must objections be timely, they must also be
specific; an objection to the report in general is not
sufficient and results in waiver of further review.”).

“Failure

to identify specific concerns with a magistrate judge’s report
results in treatment of a party’s objections as a general
objection to the entire magistrate judge’s report.

A general

objection is considered the equivalent of failing to object
entirely.”

McCready v. Kamminga, 113 F. App’x 47, 49 (6th Cir.

2004) (citing Howard v. Sec. of Health and Human Servs., 932
F.2d 505, 509 (6th Cir. 1991)).

“[T]he district court need not

provide de novo review where the objections are ‘[f]rivolous,
conclusive or general.’”

Mira v. Marshall, 806 F.2d 636, 637

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(6th Cir. 1986) (quoting Nettles v. Wainwright, 677 F.2d 404,
410 n. 8 (5th Cir. 1982)).
III. ANALYSIS
In the instant case, the Magistrate Judge recommended “that
Moses’s complaint be dismissed in full pursuant to Rule 12(b)(2)
and Rule 12(b)(6) of the Federal Rules of Civil Procedure for
lack of personal jurisdiction and failure to state a claim upon
which relief can be granted.”

(ECF No. 105 at 23-24.)

Moses makes objections to the Report and Recommendation as
to all proposed findings of facts and all conclusions of law,
and questions the Magistrate Judge’s partiality.

(ECF No. 107.)

Krasnow argues that “Plaintiff [makes] additional
unsupported arguments regarding jurisdiction and baseless
accusations regarding the Magistrate’s alleged ‘partiality’” and
that “Plaintiff has attempted to stand on her pleadings and has
failed to familiarize herself with rules, procedures, and laws
applicable to this Court.”

(ECF No. 108 at 4.)

YouTube states that “Plaintiff’s Objections still do not
direct the Court toward any factual support that the Magistrate
Judge did not consider, and neither Plaintiff’s assertion that
she was entitled to discovery before the Magistrate Judge
granted ‘summary judgment,’” and that Plaintiff’s accusation of

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the Magistrate Judge’s partiality are “baseless.”

(ECF No. 109

at 2.)
A.

Report and Recommendation Findings

Having reviewed the record, the Court agrees with the
Magistrate Judge’s Report and Recommendation that Moses’s
lawsuit against Krasnow be dismissed for lack of personal
jurisdiction under Rule 12(b)(2) of the Federal Rules of Civil
Procedure (see ECF No. 105 at 14), and lawsuit against YouTube
be dismissed under Rule 12(b)(6) of the Federal Rules of Civil
Procedure (see id. at 19).

The Report and Recommendation did

not find Moses’s Response (ECF No. 20) and Amended Complaint
(ECF No. 49) to Krasnow’s Motion to Dismiss for Lack of
Jurisdiction (ECF No. 16) sufficient.

As to general

jurisdiction, the Report and Recommendation finds that “Moses’s
assertions regarding Krasnow’s residency in Tennessee are
unsupported by specific facts or information that go beyond the
pleadings.”

(ECF No. 105 at 8.)

With regards to specific

jurisdiction, the Report and Recommendation states that “the
court finds that the purposeful availment requirement has not
been met to establish personal jurisdiction over Krasnow.”

(Id.

at 14.)
Regarding Moses’s Response (ECF No. 63) to YouTube’s Motion
to Dismiss (ECF No. 37), the Report and Recommendation finds
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that Moses fails to state a claim for direct copyright
infringement as a result of not providing “sufficient factual
matter, accepted as true, to state a claim to relief that is
plausible on its face.”

(ECF No. 105 at 19) (citing Courie v.

Alcoa Wheel & Forged Products, 577 F.3d 625, 629 (6th Cir.
2009).)

As a result, her claims for secondary infringement

should also be dismissed for failure to state a claim.
20.)

(Id. at

As to her trademark infringement allegations, the Report

and Recommendation states that “Moses offers mere conclusions
unsupported by sufficient factual allegations” (Id. at 22). 1
Additionally, since she “merely states the legal standard
without providing underlying factual support, the court
recommends that her claims for contributory and vicarious
trademark dilution be dismissed.”

(Id. at 23.)

Having reviewed the record, the Court finds that although
Moses generally disagrees with the proposed conclusions of law,

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The Report and Recommendation provides that in a claim for trademark
infringement, a Plaintiff must allege facts showing: “(1) it owns the
registered trademark; (2) the defendant used the mark in commerce; and (3)
the use was likely to cause confusion.” (ECF No. 105 at 21) (quoting Hensley
Mfg. v. ProPride, Inc., 579 F.3d 603, 609 (6th Cir. 2009).) The Court,
however, notes that the legal standard for unregistered trademarks is
different. Since it appears that Moses’s trademark is unregistered, the
correct legal standard would require the Court to “determine whether the mark
is protectable, and if so, whether there is a likelihood of confusion as a
result of the would-be infringer's use of the mark.” T. Marzetti Co. v.
Roskam Baking Co., 680 F.3d 629, 633 (6th Cir. 2012) (quoting Tumblebus v.
Cranmer, 399 F.3d 754, 761 (6th Cir. 2005)). This discrepancy does not
impact the outcome of the Report and Recommendation.

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Moses fails to make and support specific objections of “those
portions of the report or specified proposed . . .
recommendations” with which she disagrees.
§ 636(b)(1).

See 28 U.S.C.

Because the “[f]ailure to identify specific

concerns with a magistrate judge’s report results in treatment
of a party’s objections as a general objection to the entire
magistrate judge’s report,” see McCready, 113 F. App’x at 49,
the Court considers this general objection the equivalent of
failing to object entirely.
Accordingly, the Court ADOPTS the Magistrate Judge’s
proposed conclusions of law.
IV. CONCLUSION
Moses’s objections to the Report and Recommendation that
Moses’s complaint be dismissed in full pursuant to Rule 12(b)(2)
and Rule 12(b)(6) of the Federal Rules of Civil Procedure for
lack of personal jurisdiction and failure to state a claim upon
which relief can be granted are OVERRULED.

Accordingly, the

Court ADOPTS the Magistrate Judge’s factual findings and
conclusions of law, and GRANTS Defendants’ Motions to Dismiss.
IT IS SO ORDERED, this 11th day of February, 2014.

/s/ Jon P. McCalla
JON P. McCALLA
U.S. DISTRICT COURT JUDGE
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