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Golden v. Nadler Pritikin & Mirabelli

United States District Court, Northern District of Illinois

December 21, 2010


Order Form (01/2005)Case: 1:05-cv-00283 Document #: 373 Filed: 12/21/10 Page 1 of 3 PageID #:2084

Name of Assigned Judge Joan B. Gottschall Sitting Judge if Other or Magistrate Judge than Assigned Judge



Bowes' motion to dismiss or alternatively for a more definite statement [358] is denied. Golden's motion for Rule 11 sanctions [368] is also denied.

O[ For further details see text below.] Docketing to mail notices.


Rule 12(b)(6) enables a defendant to seek dismissal of a complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). When considering a Rule 12(b)(6) motion to dismiss, the court must "tak[e] all well-pleaded allegations of the complaint as true and view[] them in the light most favorable to the plaintiff." Santiago v. Walls, 599 F.3d 749, 756 (7th Cir. 2010) (quoting Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000)). Legal conclusions, however, are not entitled to any assumption of truth. Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949, 173 L. Ed. 2d 868 (2009). To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide "a short and plain statement of the claim showing that the pleader is entitled to relief" so as to "give the defendant fair notice of what the . . . claim is and the grounds upon which it rests." Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957)). Although "detailed factual allegations" are not necessary, "a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."*fn1 Twombly, 550 U.S. at 555. Rather, the plaintiff must provide enough factual allegations to state a claim for relief that is not only conceivable, but "plausible on its face." Id. at 555 & 570; see Swanson v. Citibank, N.A., 614 F.3d 400, 403 (7th Cir. 2010) ("a plaintiff must do better than putting a few words on paper that, in the hands of an imaginative reader, might suggest that something has happened to her that might be redressed by the law.") "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949.

Bowes alternatively seeks a more definite statement under Rule 12(e). Rule 12(e) states, "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). A 12(e) motion must be made before filing a responsive pleading and must indicate what information is deficient and the details desired. Id. Such a motion is not to be used to obtain additional information, and should only be granted "when the pleading is so unintelligible that the movant cannot draft a responsive pleading. MacNeil Auto. Prod., Ltd.


V. Cannon Auto. Ltd., 715 F. Supp.2d 786, 790 (N.D. Ill. 2010) (citation omitted).

Bowes argues that Golden's amended complaint must be dismissed or amended with a more definite statement because it violates Rules 10(a) and (c) in that fails to attach the copyright. However, the court declines to find that Golden was required to include the actual copyright as an exhibit to the complaint. Although doing so may have been helpful, Bowes cites to no legal authority indicating that attaching the copyright is required, and Rule 10 does not require that an exhibit be attached. See Fed. R. Civ. P. 10(c). Indeed, the Seventh Circuit has declined to require any type of heightened pleading standard for copyright infringement cases. See Mid America Title Co. v. Kirk, 991 F.2d 417, 421-22 (7th Cir. 1993) (quoting Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 113 S. Ct. 1160, 122 L. Ed. 2d 517 (1993), and noting, "We cannot accept the argument that plaintiffs in [copyright infringement cases] must be held to a particularity requirement akin to Federal Rule of Civil Procedure 9(b) . . . exceptions to the requirements of Rule 8 'must be obtained by the process of amending the Federal Rules and not by judicial interpretation.'").

It is an extraordinarily close question whether Golden's bare-bones amended complaint passes muster under Twombly.*fn2 Golden alleges that he is the sole owner of the work named "Real Estate FSBO" and copyrighted on December 8, 2004 under copyright registration number TX 6-066-895. (Am. Compl. ¶¶ 19, 20, 22.) Golden further alleges that he was injured when Bowes (and other already-dismissed defendants) "made copies of Golden's original works without his consent or approval and used such copies for their own personal gain . . . by operating and/or representing an organization that lists homes for sale on Multiple Listing Services in a manner similar to the [Golden's real estate listing service]." (Am. Compl. ¶ 15; accord Am. Compl. ¶¶ 21, 24-25). Read literally, this is an allegation that Bowes, without consent or approval of the copyright holder, made copies and used the works. That is sufficient.

Given that Golden's amended complaint is not so unintelligible that Bowes cannot draft a responsive pleading, Bowes' motion for a more definite statement is denied.

Also, because Golden's amended complaint alleged just enough to survive dismissal, the court finds that Bowes' motion to dismiss was filed in good faith and is not sanctionable. Accordingly, Golden's motion for Rule 11 sanctions is denied.*fn3

The court notes that it previously deferred, see Doc. 124, deciding a motion to dismiss Golden's copyright infringement claim because the divorce that was to determine the ownership of the copyright was still pending. Now that the parties allege that there has been a judgment in the divorce case settling the question of whether the copyright was marital property, the matter may be ripe for a motion for summary judgment.


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