walker v. carter - motion to dismiss (roc-a-fella logo lawsuit)

7/22/2019 Walker v. Carter - Motion to Dismiss (Roc-A-Fella Logo Lawsuit)

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UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - xDWAYNE D. WALKER, JR.,

Plaintiff,

vs.

SHAWN CARTER (“JAY-Z”), DAMON“DAME” DASH, KAREEM “BIGGS” BURKE,UNIVERSAL MUSIC GROUP, INC., ISLANDDEF JAM MUSIC GROUP, ROC-A-FELLARECORDS, LLC,

Defendants.

::

:::::::::::

No. 12-cv-5384 (ALC)(RLE)

- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - x

MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS SHAWN CARTER, UMG

RECORDINGS, INC., THE ISLAND DEF JAM MUSIC GROUP, AND ROC-A-FELLA

RECORDS, LLC’S MOTION TO DISMISS AND MOTION TO STRIKE

SHAPIRO, ARATO & ISSERLES LLPCynthia S. AratoJeremy Licht500 Fifth Avenue40th Floor New York, New York 10110Telephone: (212) 257-4880Fax: (212) [email protected] [email protected]

Attorneys for Defendants Shawn Carter,

UMG Recordings, Inc., The Island Def Jam Music Group, a division of UMG

Recordings, Inc., and Roc-A-Fella Records,

LLC

Case 1:12-cv-05384-ALC-RLE Document 68 Filed 12/09/13 of 28



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TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 3

A. PLAINTIFF’S CONTRACT CLAIM .............................................................................. 3 B. PLAINTIFF’S COPYRIGHT INFRINGEMENT CLAIM.............................................. 5 C. THE LEGAL ARGUMENTS CONTAINED IN THE SECOND AMENDED

COMPLAINT................................................................................................................... 7 ARGUMENT .................................................................................................................................. 9

I. STANDARD OF REVIEW ............................................................................................. 9 II. PLAINTIFF FAILS TO STATE A CLAIM FOR COPYRIGHT INFRINGEMENT..... 9

A. Plaintiff Lacks A Good Faith Basis To Claim Copyright Infringement ....................... 9 B. Plaintiff Granted An Irrevocable Implied License To The Copyrighted Work ......... 12 C. Plaintiff’s Copyright Claim Is Time-Barred ............................................................... 15

III. THE COURT SHOULD STRIKE THE INAPPROPRIATE LEGAL ARGUMENTFROM THE SECOND AMENDED COMPLAINT ..................................................... 20

CONCLUSION ............................................................................................................................. 22




ii

TABLE OF AUTHORITIES

Page(s)

Cases

2004 Stuart Moldaw Trust v. XE L.I.F.E., LLC ,642 F. Supp. 2d 226 (S.D.N.Y. 2009) ....................................................................................... 10

American Int’l Adjustment Co. v. Galvin,86 F.3d 1455 (7th Cir. 1996) ..................................................................................................... 10

Barksdale v. Robinson,211 F.R.D. 240 (S.D.N.Y. 2002)............................................................................................... 16

Barrett v. City of Allentown,152 F.R.D. 50 (E.D. Pa. 1993) .................................................................................................. 21

Bell Atl. Corp. v. Twombly,550 U.S. 544 (2007) .................................................................................................................... 9

Black v. UNUMProvident Corp.,245 F. Supp. 2d 194 (D. Me. 2003) ........................................................................................... 21

Brand v. RMM , No. 10 Civ. 0287, 2011 WL 1496344 (S.D.N.Y. Apr. 18, 2011) ........................... 16, 18, 19, 20

Buday v. N.Y. Yankees P’Ship,486 F. App’x 894 (2d Cir. 2012) ............................................................................................... 13

Carano v. Vina Concha y Toro,288 F. Supp. 2d 397 (S.D.N.Y. 2003) ....................................................................................... 12

Carell v. Shubert Org., Inc.,104 F. Supp. 2d 236 (S.D.N.Y.2000) ........................................................................................ 19

Cargo Partner AG v. Albatrans, Inc.,352 F.3d 41 (2d Cir. 2003) .......................................................................................................... 8

Colliton v. Cravath, Swaine & Moore LLP , No. 08 Civ. 400, 2008 WL 4386764 (S.D.N.Y. Sept. 24, 2008) ................................................ 9

Dewan v. Blue Man Grp. Ltd. P’ship,73 F. Supp. 2d 382 (S.D.N.Y.1999) .......................................................................................... 19

Effects Assocs., Inc., v. Cohen,908 F.2d 555 (9th Cir. 1990) ................................................................................... 12, 13, 14, 15




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Fontana v. Harra, No. CV 12-10708, 2013 WL 990014 (C.D. Cal. Mar. 12, 2013) ............................................. 13

Gleis v. Buehler , No. 3:11 CV663, 2012 WL 1194987 (D. Conn. Apr. 10, 2012) ............................................... 21

Great Lakes Higher Educ. Corp. v. Austin Bank of Chicago,837 F. Supp. 892 (N.D. Ill. 1993) ............................................................................................. 10

Hobley v. Burge, No. 03 C 3678, 2004 WL 2658075 (N.D. Ill. Oct. 13, 2004) ................................................... 10

Holtzbrinck Pub. Holdings, L.P. v. Vyne Commc’ns, Inc., No. 97 Civ. 1082, 2000 WL 502860 (S.D.N.Y. Apr. 26, 2000) ............................................... 12

In re Platinum & Palladium Commodities Litig.,

828 F. Supp. 2d 588 (S.D.N.Y. 2011) ....................................................................................... 20

Jacob Maxwell, Inc. v. Veeck ,110 F.3d 749 (11th Cir. 1997) ................................................................................................... 12

Kant v. Columbia Univ., No. 08 Civ. 7476, 2010 WL 807442 (S.D.N.Y. Mar. 9, 2010) ................................................. 10

Kwan v. Schlein,246 F.R.D. 447 (S.D.N.Y. 2007)............................................................................................... 10

Kwan v. Schlein,634 F.3d 224 (2d Cir. 2011) .......................................................................................... 16, 17, 18

Lighthouse Solutions, LLC v. Connected Energy Corp., No. 03 Civ. 6275, 2004 WL 1811391 (W.D.N.Y. Aug. 13, 2004) ............................... 13, 14, 15

Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t Inc.,868 F. Supp. 2d 172 (S.D.N.Y. 2012) ....................................................................................... 20

Merchant v. Levy,92 F.3d 51 (2d Cir. 1996) .......................................................................................................... 16

Minder Music Ltd. v. Mellow Smoke Music Co., No. 98 Civ. 4496, 1999 WL 820575 (S.D.N.Y. Oct. 14, 1999) ................................................ 16

Newsome v. Brown, No. 01 Civ. 2807, 2005 WL 627639 (S.D.N.Y. Mar. 16, 2005) ............................................... 17




iv

Norton-Griffiths v. Wells Fargo Home Mortgage, No. 5:10 Civ. 169, 2011 WL 884456 (D. Vt. Mar. 11, 2011) ................................................... 21

Offley v. Activision, Inc.,273 F. App’x 610 (9th Cir. 2008).............................................................................................. 14

Ohio Midland, Inc. v. Proctor , No. C2-05-1097, 2006 WL 3793311 (S.D. Ohio Nov. 28, 2006) ............................................. 10

Ortiz v. Guitian Bros. Music Inc., No. 07 Civ. 3897, 2008 WL 4449314 (S.D.N.Y. Sept. 29, 2008) .......................... 17, 18, 19, 20

Rawkus Entm’t, LLC v. JHH Pictures, Inc., No. 01 Civ. 8804, 2003 WL 169781 (S.D.N.Y. Jan. 24, 2003) ................................................ 15

Rosner v. Codata Corp.,

917 F. Supp. 1009 (S.D.N.Y. 1996) .......................................................................................... 16

Santa-Rosa v. Combo Records,471 F.3d 224 (1st Cir. 2006) ..................................................................................................... 19

Simmons v. Stanberry, No. 10 Civ. 5815, 2012 WL 1004857 (E.D.N.Y. Mar. 23, 2012) ............................................. 17

SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms., Inc.,211 F.3d 21 (2d Cir. 2000) ........................................................................................................ 12

Telebrands Corp. v. Del Labs., Inc.,719 F. Supp. 2d 283 (S.D.N.Y. 2010) ....................................................................................... 18

Unclaimed Prop. Recovery Serv. Inc. v. Kaplan, No. 11 Civ. 1799, 2012 WL 4195241 (E.D.N.Y. Sept. 20, 2012) ............................................ 13

ZilYen, Inc. v. Rubber Mfrs. Ass’n,935 F. Supp. 2d 211 (D.D.C. 2013) .......................................................................................... 13

Rules and Statutes

17 U.S.C. § 507(b) ........................................................................................................................ 16

Fed. R. Civ. P. 8 ............................................................................................................................ 10

Fed. R. Civ. P. 8(a)(2) ..................................................................................................................... 7

Fed. R. Civ. P. 11 ................................................................................................................ 9, 10, 11




v

Fed. R. Civ. P. 12(b)(6)....................................................................................................... 1, 13, 18

Fed. R. Civ. P. 12(f) ............................................................................................................ 1, 20, 21




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Defendants Shawn Carter (professionally known as “Jay-Z”), UMG Recordings, Inc.

(erroneously sued as Universal Music Group, Inc.) (“UMG”), The Island Def Jam Music Group,

a division of UMG Recordings, Inc. (“Island Def Jam”), and Roc-A-Fella Records, LLC

(collectively the “UMG Defendants”), by their attorneys Shapiro, Arato & Isserles LLP,

respectfully submit this Memorandum of Law in support of their motions to dismiss and strike

pursuant to Rules 12(b)(6) and 12(f) of the Federal Rules of Civil Procedure.

PRELIMINARY STATEMENT

Since its inception nearly a year and a half ago, this case has consisted of an implausible

contract claim and an “alternative” copyright claim that only could have been brought in bad

faith. Plaintiff alleges that he entered into an agreement 17 years ago to make “better” the now

world famous logo of Roc-A-Fella Records in exchange for an unprecedented royalty of 2% of

the gross revenues earned from products bearing the logo. Plaintiff’s complaint has been artfully

drawn to skirt, for now, the obvious defenses that doom his contract claim. To avoid the statute

of frauds – and to afford Plaintiff free rein to claim whatever he wishes regarding the alleged

agreement’s supposed terms – Plaintiff asks this Court to believe that his agreement was reduced

to writing, but, conveniently, has now been either “lost or destroyed.” And to avoid the statute

of limitations, Plaintiff claims that his royalties were payable only in one lump sum “ten years

after the first year of use,” such that they were not due until 2006, approximately (and also

conveniently) six years before Plaintiff came out of the woodwork to file this suit.

Plaintiff is plainly worried, for good reason, about the plausibility of his dubious contract

claim. Accordingly, Plaintiff also asserts an “alternative” copyright claim, in which he alleges

that Defendants’ use of his purported logo design has always infringed his rights. Plaintiff fully

recognizes that he cannot, on the one hand, claim contractual royalties from all the Defendants




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for an authorized use, and, on the other hand, maintain that the same use was infringing.

Accordingly, he asserts his “alternative” copyright claim, solely as a hedge, because Defendants

might “prevail[] in convincing this court that the Contract does not exist.” The Federal Rules do

not permit this stunt.

Plaintiff does not, and cannot, offer a set of facts – different from those underlying his

contract claim – which he believes in good faith are true, and under which Defendants could be

liable for copyright infringement. To the contrary, Plaintiff already has sworn, under penalty of

perjury, to the truth of the factual allegations underlying his contract claim in an affidavit he

twice previously filed in this action. Though the Federal Rules permit inconsistent pleading,

they do not permit bad faith pleading. Yet that is what Plaintiff’s copyright claim is – a bad faith

attempt to hedge against the very real risk that Plaintiff’s contract claim will be proved meritless.

For this reason alone, his copyright claim should be dismissed.

In any event, even if the Plaintiff could proceed with his “alternative” copyright claim as

a pleading matter, the claim would still fail as a matter of law. If Plaintiff maintains, consistent

with his contract story, that he created his purported logo design at Defendants’ request, and with

the express intent that it be used as the Roc-A-Fella record label’s logo, then these allegations

give rise to an implied license as a matter of law, which provides a complete defense to

Plaintiff’s infringement claim. Moreover, if Plaintiff wishes to claim, contrary to his contract

story, that Defendants have been “infringing” his supposed logo for the past 17 years, with no

recognition of his purported ownership rights or alleged payment to him, then the gravamen of

Plaintiff’s claim is one of ownership and not infringement under established copyright

jurisprudence. Accordingly, Plaintiff’s copyright claim is time-barred under that settled




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precedent. The Court should dismiss Plaintiff’s copyright infringement claim with prejudice for

these reasons as well.

The Court should also order Plaintiff to remove the immaterial, redundant, and

impertinent matter now contained in his Second Amended Complaint. At an October 11, 2013

status conference, the Court gave Plaintiff a third and final opportunity to amend his pleading,

despite the fact that, two months earlier, Plaintiff had expressly declined the Court’s prior

invitation for Plaintiff to do so. At that conference, Plaintiff was given the narrow opportunity to

file an amended pleading to allege additional facts that could support Plaintiff’s contract claim

against the UMG Defendants. Plaintiff, however, took the Court’s leave as an invitation to

incorporate a legal brief into his Second Amended Complaint. Rather than limiting himself to

the short and plain statement of his claims as the Federal Rules require, Plaintiff’s pleading

contains arguments – complete with case citations – about what his pleading burden is, what

inferences the Court should draw from the facts alleged, and why Defendants’ prior arguments

are “disingenuous” and “astonishing.” These gratuitous “allegations” have no place in a

complaint and should be stricken.

BACKGROUND

A. Plaintiff’s Contract Claim

Plaintiff is an individual who purportedly met Defendant Damon Dash in August 1995,

through a co-worker of Plaintiff’s. (See Sec. Am. Compl. (“SAC”) ¶ 12.) At that time, Dash and

Defendants Shawn Carter and Kareem Burke were forming a record label called Roc-A-Fella

Records. ( Id. ¶ 13.) Plaintiff was not part of the group that formed Roc-A-Fella, but he claims

that he “became something of a consultant to Dash and Roc-A-Fella” by “assist[ing] Dash in




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purchasing sewing machines” and “brainstorm[ing] ideas” for a potential Roc-A-Fella clothing

line. ( Id. ¶¶ 14, 16.)

Plaintiff contends that, in or about November 1995, he “saw what Dash had in mind for

the Roc-A-Fella logo, and told Dash he could do better.” ( Id. ¶ 19.) Plaintiff further contends

that Dash orally agreed – in just one brief conversation – to pay Plaintiff an exorbitant royalty of

two percent of Roc-A-Fella’s gross revenues if Plaintiff designed the label’s logo. ( Id.) Under

the supposedly “settled terms” of this alleged oral contract, Plaintiff would “design a logo for the

Roc-A-Fella record label,” and, “[u]pon approval of the logo,” be paid “$3500 cash, and

subsequently 2% of all revenues made from the sales of items . . . bearing the logo for ten years

after the first year of use.” ( Id. ¶ 20.)

Plaintiff asserts that, in or around December 1995, he created a logo and then met with

Dash in the lobby of Plaintiff’s apartment building, where Dash allegedly approved his design.

( Id. ¶ 22.) Because “Dash did not have the cash payment with him at that time,” Plaintiff met

with Dash a second time to collect the $3500. ( Id. ¶¶ 22, 25.) Plaintiff then wrote out the terms

of his supposed contract, Dash signed it “on behalf of himself and the RAF Defendants and Roc-

A-Fella,” and Plaintiff gave Dash the logo. ( Id. ¶¶ 25, 26.) Incredibly, this multimillion dollar

written contract has now disappeared under mysterious circumstances – Plaintiff contends that it

has been either “lost or destroyed.” (Pl.’s Letter to The Honorable Andrew L. Carter, Jr., dated

Sept. 27, 2012 (“Pl.’s Pre-Motion Conference Letter”), at 3, Dkt. No. 17 (contending that “[a]

written contract does not violate the statute of frauds because the writing has been lost or

destroyed”).)

Plaintiff contends that his alleged logo design, “with only slight and insignificant

changes,” has been appearing since 1996 on “records (i.e., CDs and other sound recordings),




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merchandise, marketing materials, and elsewhere under the Roc-A-Fella Records label.” (SAC

¶ 34.) Plaintiff further contends that the label has generated over $350 million of revenue from

Defendants’ sales of merchandise bearing its logo, such that he is owed at least $7 million in

royalties under his supposed “lost” contract. (See id. ¶¶ 60-61.) Although these royalties

allegedly began accruing 17 years ago, Plaintiff maintains that his contract claim is “timely”

because, conveniently again, his “agreement” purportedly only required Defendants to pay his

two-percent royalty in one lump-sum “at the end of” “ten years after the first year of use.” ( Id.

¶¶ 20, 62.) In other words, under this highly unusual payment term, Plaintiff’s royalties were

allegedly not due until “the end of 2006” (id. ¶ 59), and this breach of contract lawsuit, which

Plaintiff did not bring until almost six years later, is purportedly “timely” (id. ¶ 62).

Plaintiff alleges that “[e]ach of the defendants is obligated under the Contract, and is

jointly and severally liable to the plaintiff for breach of that Contract.” ( Id. ¶ 92.)

B. Plaintiff’s Copyright Infringement Claim

Notwithstanding that Plaintiff alleges that he is a party to an express contract that

specifically authorizes the Defendants’ use of his alleged logo design, Plaintiff alleges

“[a]lternatively” that all of “the defendants have infringed on the plaintiff’s copyright

continuously since 1996.” ( Id. ¶ 68.) For purposes of his contract claim, Plaintiff alleges that all

sales made by all Defendants of products bearing the Roc-A-Fella logo fall under his purported

contract, such that he is entitled to a $7 million royalty (or 2% of the $350 million of all

Defendants’ combined sales). ( Id. ¶¶ 60-61.) For purposes of his alternative copyright claim,

however, Plaintiff alleges that “[t]he defendants have infringed on the plaintiff’s copyright

continuously since 1996” – even though Plaintiff admits that he did not file a copyright




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registration until 14 years later. ( Id. ¶ 68; see id. ¶ 77.) In other words, Plaintiff claims that the

use of the logo for which he is due contractual royalties also constitutes copyright infringement.

Plaintiff recognizes that his purported contract precludes his copyright claim. (See id.

¶ 63 (“Without [the alleged contract], [defendants] are infringing on the plaintiff’s copyright in

the Artwork.”).) Accordingly, Plaintiff asks the Court to assume the contract exists only for

purposes of his contract claim, but to ignore it for purposes of his copyright claim. (See id. ¶ 58

(“If the Contract exists—as this court must assume at the pleading stage of this litigation when

considering the breach of contract claim. . . .” (emphasis added).)

Plaintiff’s alternative infringement claim, however, is premised on the same facts which

underlie his contract claim, including his alleged performance of his contract with Dash. (See id.

¶ 78 (incorporating all preceding allegations into Plaintiff’s copyright claim).) Plaintiff,

moreover, has already twice filed an affidavit with the Court swearing, under the penalty of

perjury, that his claims about his dealings with Dash are true. (See Affidavit of Dwayne Walker,

dated Mar. 11, 2013, Dkt. Nos. 42 & 50, at ¶¶ 2-3 (swearing that, with the exception of

allegations made upon information and belief, the allegations of the original complaint in this

action and the first amended complaint were “true to my own knowledge”).) And Plaintiff offers

no alternative set of facts explaining how, if he did not have his interactions with Dash, he came

to design a logo specifically for the Roc-A-Fella label or how Defendants would have acquired

access to the logo if not from him. In other words, Plaintiff offers no “alternative” facts to

support his copyright claim. He has only one story to tell – the one which purports to support his

contract claim.




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Plaintiff nevertheless wishes to pursue his copyright claim because he is worried that

Defendants will “prevail[] in convincing this court that the Contract does not exist.” ( Id. ¶ 63.)

As Plaintiff explains:

the defendants are actually denying the existence of the Contract, which means that,according to them, they are infringing on the plaintiff’s copyright. Because the existenceof the Contract is a disputed question of fact, Count One of this complaint is forcopyright infringement.

(SAC ¶ 58 (emphasis added).)

C. The Legal Arguments Contained In The Second Amended Complaint

The Second Amended Complaint is hardly “a short and plain statement of the claim

showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). It is in large part a legal

brief that responds to arguments the UMG Defendants made on the prior motion to dismiss,

complete with case citations ( see SAC ¶¶ 41, 43, 46, 51, 52); legal arguments about Plaintiff’s

pleading burden and the inferences and conclusions the Court should draw on a motion to

dismiss ( see id. ¶¶ A2, 42, 44, 46, 48, 49, 51, 52, 53, 56, 57, 58); and characterizations of

Defendants’ positions in this litigation, virtually all of which are either highly misleading or

entirely false ( see id. ¶¶ A2, A3, 35, 55, 56, 57).

For example Plaintiff alleges the following “law” in paragraph 43:

The defendants also disingenuously argued that no partnership existed betweenCarter, Burke, and Dash. The facts alleged above overwhelmingly demonstrate thedishonesty of that claim. The elements of partnership under New York law are: “(1) thesharing of profits and losses of the enterprise; (2) the joint control and management of the business; (3) the contribution by each party of property, financial resources, effort[,] skillor knowledge; and (4) an intention of the parties to be partners.” Nuevo Mundo Holdings

v. Pricewaterhouse Coopers LLP , No. 03 Civ. 0613, 2004 WL 112948, at *7 (S.D.N.Y.Jan. 22, 2004).

(SAC ¶ 43.) Plaintiff again quotes from case law in paragraph 51, when he “alleges” that:

“[W]hen two corporations merge to become a single entity, [] the successor corporation[is] automatically liable for the debts of both predecessors; it is both predecessors.”




8

Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 45 (2d Cir. 2003) (emphasis inoriginal). When Roc-A-Fella was folded into Island Def Jam, that is exactly whathappened.

Plaintiff does the same in paragraphs 41, 42, 52, 55, 56, 57, and 58.

In Paragraph 35, Plaintiff relies on the UMG Defendants’ prior motion to dismiss –

which, like all such motions, challenged the sufficiency of Plaintiff’s pleading and did not

purport to affirm or deny Plaintiff’s allegations – to express his purported “astonishment” at

Defendants’ alleged “denial” of his contention that a legal partnership existed between

Defendants Carter, Burke, and Dash: “[it] would be one thing for the defendants to make

disingenuous claims about obscure private parties far from the public eye. But to deny the

existence of one of the most famous and important partnerships in the history of music is nothing

short of astonishing.” ( Id. ¶ 35.)

In paragraph 57, Plaintiff complains that the UMG Defendants’ prior motion noted that

Plaintiff erroneously named “Universal Music Group” as the parent of defendant Island Def Jam

when the correct entity is UMG Recordings, Inc. (SAC ¶¶ 7, 52.) Plaintiff then claims that, by

this statement, Defendants allegedly “have actually acknowledged that there is a case” and that

“they know something that the plaintiff doesn’t about the liability in this case. Not whether there

is liability—they acknowledge that—but exactly who is liable.” ( Id. ¶ 57.) Plaintiff includes

similar characterizations in paragraphs A2, A3, 55, and 56.

These redundant, immaterial, and impertinent contentions are the subject of the UMG

Defendants’ motion to strike. See infra Part III.




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ARGUMENT

I. STANDARD OF REVIEW

To survive this motion to dismiss, the Second Amended Complaint must contain factual

allegations “plausibly suggesting,” and “not merely consistent with,” a right to relief. Bell Atl.

Corp. v. Twombly, 550 U.S. 544, 557 (2007). Although the complaint need not contain “detailed

factual allegations,” it must contain “more than labels and conclusions” or “a formulaic recitation

of the elements of a cause of action.” Id. at 555. Rather, Plaintiff must articulate “enough facts

to state a claim to relief that is plausible on its face.” Id. at 570.

II.

PLAINTIFF FAILS TO STATE A CLAIM FOR COPYRIGHTINFRINGEMENT

As an “[a]lternative[]” to his contract theory, Plaintiff claims that Defendants have

infringed his copyright “continuously since 1996” through their use of a logo design that he

purportedly created and owns. (SAC ¶ 68.) Plaintiff asserts this claim because he anticipates

that Defendants will “deny[] the existence of the Contract” ( id. ¶ 58), and in case Defendants

“prevail[] in convincing this court that the Contract does not exist” ( id. ¶ 63). Plaintiff’s

“alternative” claim for copyright infringement fails because: (1) it is based on impermissible

inconsistent pleading that violates Rule 11; and (2), as is apparent from the face of the Second

Amended Complaint, it is barred either by Plaintiff’s implied license or the applicable statute of

limitations.

A. Plaintiff Lacks A Good Faith Basis To Claim Copyright Infringement

A plaintiff is not entitled to assert claims in bad faith. See, e.g., Colliton v. Cravath,

Swaine & Moore LLP , No. 08 Civ. 400, 2008 WL 4386764, at *6, *10-*11 (S.D.N.Y. Sept. 24,

2008) (granting motion to dismiss where plaintiff contradicted facts he previously alleged and

that were within his knowledge in a “transparent attempt” to avoid dispositive defenses), aff’d ,




10

356 F. App’x 535 (2d Cir. 2009); Kant v. Columbia Univ., No. 08 Civ. 7476, 2010 WL 807442,

at *7 (S.D.N.Y. Mar. 9, 2010) (denying plaintiff leave to amend where new allegations were

made in bad faith). Though Rule 8 permits alternative, and even inconsistent, causes of action,

Rule 11 requires that a plaintiff have a good faith basis for each alternative cause of action he

asserts. See, e.g., Kwan v. Schlein, 246 F.R.D. 447, 451 (S.D.N.Y. 2007). Accordingly, where,

as here, a plaintiff seeks to assert alternative causes of action on the basis of “‘contradictory

statements of fact,’” the plaintiff may do so only when he is “‘legitimately in doubt about the

facts in question.’” 2004 Stuart Moldaw Trust v. XE L.I.F.E., LLC , 642 F. Supp. 2d 226, 240

(S.D.N.Y. 2009) (quoting American Int’l Adjustment Co. v. Galvin, 86 F.3d 1455, 1461 (7th Cir.

1996); accord Kwan, 246 F.R.D. at 451-52.

If the plaintiff “is not legitimately in doubt about the fact in question,” he “may not rest

the survival of his claim upon a contradicting statement of fact.” Hobley v. Burge, No. 03 C

3678, 2004 WL 2658075, at *5 & n.3 (N.D. Ill. Oct. 13, 2004) (granting motion to dismiss where

plaintiff argued that his claim was viable if the jury “ultimately . . . credit[ed]testimony by the

Defendants that [the plaintiff] did confess” to a crime because the plaintiff alleged that he had

not confessed, plaintiff could not be “legitimately in doubt about [that] fact,” and that fact gave

rise to an affirmative defense); see Ohio Midland, Inc. v. Proctor , No. C2-05-1097, 2006 WL

3793311, at *4-*5 (S.D. Ohio Nov. 28, 2006) (plaintiffs could not assert contradictory claim

because they could not legitimately be in doubt about the facts they sought to contradict); Great

Lakes Higher Educ. Corp. v. Austin Bank of Chicago, 837 F. Supp. 892, 895 (N.D. Ill. 1993)

(same).

Plaintiff’s copyright infringement claim violates these fundamental principles. Although

Plaintiff wants to disavow his purported contract for purposes of his copyright claim, he has




11

sworn that he is not legitimately in doubt about the existence of his alleged contract or his

purported dealings authorizing the use of his purported logo design. First , he signed an affidavit

under penalty of perjury that he allegedly entered into a contract with Dash, Burke, Carter and

Roc-A-Fella for the use of the logo. (See Affidavit of Dwayne Walker, dated Mar. 11, 2013,

Dkt. No. 42, at ¶¶ 2-3 (swearing that, with the exception of allegations made upon information

and belief, the allegations of the original complaint in this action and the first amended complaint

were “true to my own knowledge”).) Second , Plaintiff incorporates all of his contract allegations

into his copyright claim and alleges no alternative set of facts about how he came to create and

Defendants obtained access to his purported logo design – two fundamental elements of any

federal copyright infringement claim. Third , Plaintiff concedes that he intends to pursue an

infringement claim only if the Defendants “prevail[] in convincing this court that the Contract

does not exist.” ( Id. ¶ 63.)

In other words, Plaintiff steadfastly maintains that he entered into a contract with the

Roc-A-Fella record label for use of his alleged logo; Plaintiff is unwavering in his position that

he authorized the label’s use of this logo for the last 17 years, in exchange for astronomical and

unprecedented royalties; and Plaintiff has conceded that he cannot bring a copyright claim under

the facts that he maintains exist. (See id. ¶¶ 58, 63 (alleging that Plaintiff can pursue a copyright

claim only if the contract does not exist).)

At bottom, Plaintiff has no valid, good faith basis for asserting his infringement claim; he

alleges it solely as a hedge in the event a factfinder concludes that his contract claim is spurious

– as any factfinder should. The copyright claim plainly violates Rule 11. It should be dismissed

for this reason alone.




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B. Plaintiff Granted An Irrevocable Implied License To The Copyrighted Work

In any event, if the Court considers Plaintiff’s copyright claim on the merits, it still fails

as a matter of law. Assuming the truth of Plaintiff’s allegations about his interactions with Dash,

it is clear from the face of the Second Amended Complaint that Plaintiff, at a minimum, granted

an irrevocable implied license for the use of his alleged design as the logo for the Roc-A-Fella

record label.

An implied license arises from conduct, not words, and is established where a party

“‘created a work at the [other party’s] request and handed it over, intending that [the other party]

copy and distribute it.’” SmithKline Beecham Consumer Healthcare, L.P. v. Watson Pharms.,

Inc., 211 F.3d 21, 25 (2d Cir. 2000) (quoting Effects Assocs., Inc., v. Cohen, 908 F.2d 555, 558-

59 (9th Cir. 1990)); see, e.g., Holtzbrinck Pub. Holdings, L.P. v. Vyne Commc’ns, Inc., No. 97

Civ. 1082, 2000 WL 502860, at *4 (S.D.N.Y. Apr. 26, 2000) (Implied license arises when “(i) a

person (the licensee) requests the creation of a work; (ii) the creator (the licensor) makes that

particular work and delivers it to the licensee; and (iii) the licensor intends that the licensee copy

and distribute his work.”). Works designed for marketing or promotional purposes – like the

logo here – are quintessential subjects of implied licenses, since when one creates and delivers a

work that serves a marketing function, one plainly expects that work will be copied, distributed,

or otherwise exploited. See, e.g., Jacob Maxwell, Inc. v. Veeck , 110 F.3d 749, 752-53 (11th Cir.

1997) (baseball team song); Carano v. Vina Concha y Toro, 288 F. Supp. 2d 397, 402 (S.D.N.Y.

2003) (logo design); Holtzbrinck Pub. Holdings, 2000 WL 502860 at *5 (website design).

The allegations of the Second Amended Complaint track the elements of an implied

license precisely. According to Plaintiff, Dash agreed that Plaintiff would create a logo – a

classic marketing tool – for the Roc-A-Fella record label to use in marketing and promoting its




13

products (SAC ¶¶ 19-20); Plaintiff created a logo design and delivered it to Dash (id. ¶ 26); and

Plaintiff did so with the express knowledge and intention that the Roc-A-Fella label would use

the work as its logo (id. ¶ 20). These allegations demonstrate that Plaintiff granted an implied

license for the use of his purported design as the Roc-A-Fella logo, which is a complete defense

to Plaintiff’s infringement claim. See, e.g., Effects Assocs., 908 F.2d at 558-59; see also Fontana

v. Harra, No. CV 12-10708, 2013 WL 990014, at *9 (C.D. Cal. Mar. 12, 2013) (granting Rule

12(b)(6) motion where plaintiff “has pled facts showing that he delivered the screenplay to

defendants with intent to allow them to use it to create and promote a film, and [] these facts give

rise to an affirmative defense” of implied license); ZilYen, Inc. v. Rubber Mfrs. Ass’n, 935 F.

Supp. 2d 211, 221-24 (D.D.C. 2013) (granting Rule 12(b)(6) motion because allegations in the

complaint gave rise to an implied license); Unclaimed Prop. Recovery Serv., Inc. v. Kaplan, No.

11 Civ. 1799, 2012 WL 4195241, at *4 (E.D.N.Y. Sept. 20, 2012) (same), aff’d on other

grounds, 734 F.3d 142 (2d Cir. 2013); cf. Buday v. N.Y. Yankees P’Ship, 486 F. App’x 894, 897

(2d Cir. 2012) (affirming dismissal of copyright claim where “the description of [the copyright

owner’s] conduct in the complaint allows for no conclusion other than that he conveyed the logo

to the [defendant] . . . in a manner which implicitly, if not explicitly, authorized [the defendant]

to publish it” (internal quotation marks omitted)). In addition, since Plaintiff contends that Dash

allegedly paid Plaintiff $3500 upon delivery of that logo (SAC ¶ 25), Plaintiff’s implied license

is irrevocable. See Unclaimed Prop. Recovery Serv. Inc., 2012 WL 4195241 at *4; Lighthouse

Solutions, LLC v. Connected Energy Corp., No. 03 Civ. 6275, 2004 WL 1811391, at *7

(W.D.N.Y. Aug. 13, 2004).1

1 The implied license remains irrevocable, even if Plaintiff contends that supposed royalty payments remaindue and owing and thus “dispute[s] the sufficiency of the payment.” Lighthouse Solutions, 2004 WL 1811391 at *7.Any remedy for an insufficient payment must be found under state law, not the Copyright Act. See Effects Assocs.,




14

Plaintiff apparently intends to argue that Defendants cannot rely on the implied license

defense at the pleading stage because Defendants deny the existence of both Plaintiff’s alleged

contract and the surrounding “conduct.” (SAC ¶ 63 (“[d]efendants dispute the existence and

terms of the Contract. If they prevailed in convincing this Court that the Contract does not exist,

it would not relieve them of liability. The Contract is the only evidence they might have of a

license to use” the logo. “Without it, they are infringing on the plaintiff’s copyright . . . They

rest their specious implied license argument on conduct that they claim never happened.”).)

As an initial matter, the UMG Defendants have not yet claimed that any particular

conduct did or did not happen. This case remains at the pre-answer, motion to dismiss stage, and

thus the UMG Defendants have not yet asserted any factual positions of their own. Because of

the posture of the case, the Court and the UMG Defendants must assume the truth of Plaintiff’s

allegations. Doing so, it is clear that the facts alleged in the Second Amended Complaint –

whether or not Defendants believe them to be true – give rise to an implied license that precludes

Plaintiff’s copyright claim as a matter of law.

In addition, Plaintiff is wrong that the implied license defense cannot succeed in the

absence of his alleged contract. An implied license does not require an explicit contract. That is

because an implied license arises from conduct (just like the conduct that plaintiff asserts here),

not from a written or oral agreement (such an agreement would establish an express license).

See Offley v. Activision, Inc., 273 F. App’x 610, 611-12 (9th Cir. 2008) (unpublished) (“Plaintiffs

argue that a license may not be implied absent express contract terms and/or a written agreement.

Plaintiffs misunderstand the nature of an implied license. The existence of a nonexclusive

license may be implied from the manner in which the parties conducted their relationship if a

908 F.2d at 559 (stating that grantor of implied license was precluded from suing for copyright infringement, butretained the right to pursue state law remedies); Lighthouse Solutions, 2004 WL 1811391 at *7 (same).




15

licensee ‘created a work at [the licensor’s] request and handed it over, intending that the

[licensor] copy and distribute it.’” (quoting Effects Assocs., 908 F.2d at 558-59)). Thus, an

implied license will result even if the parties fail to enter into an enforceable, express contract.

See, e.g., Lighthouse Solutions, 2004 WL 1811391 at *4-*5 (finding implied license despite no

express agreement); Rawkus Entm’t, LLC v. JHH Pictures, Inc., No. 01 Civ. 8804, 2003 WL

169781, at *1 (S.D.N.Y. Jan. 24, 2003) (same). Accordingly, it is irrelevant if Defendants

dispute that anyone ever agreed to the absurd contractual terms Plaintiff now contends were

contained in his supposed “lost” agreement. That dispute cannot defeat the existence of the

license that is properly implied from Plaintiff’s alleged conduct of purportedly creating a logo at

Dash’s behest, and turning it over to Dash with the full knowledge and intent that it be used as

Roc-A-Fella Records’ exclusive logo – all of which Plaintiff has sworn is true.

C. Plaintiff’s Copyright Claim Is Time-Barred

Plaintiff’s copyright claim would still fail even if Plaintiff could proceed, in bad faith,

under an “alternative” set of facts which he has sworn, under penalty of perjury, do not exist. In

this “alternative” universe, Plaintiff alleges that Defendants infringed his copyright

“continuously since 1996” by “acquir[ing]” the logo “directly from Plaintiff” over 17 years ago –

presumably by means other than his interactions with Dash (although no alternative means are

even hinted at in the Second Amended Complaint) – and then selling records and merchandise

bearing that logo. (SAC ¶¶ 68, 81.) Although styled as an infringement claim, under this theory,

the gravamen of Plaintiff’s complaint is that he is the creator and sole copyright owner of the

logo design. ( Id. ¶ 80 (“[f]rom that time, the plaintiff has remained the sole owner of the

copyright in compliance with the copyright laws.”).) As such, Plaintiff’s claim has long been

time-barred as a matter of law.




16

Civil actions under the Copyright Act must be brought “within three years after the claim

accrued.” 17 U.S.C. § 507(b). The operation of this limitations period turns on the nature of the

copyright claim at issue. An infringement claim accrues with each new act of infringement, i.e. a

plaintiff alleging infringement can recover for acts occurring within three years of suit, even if

those acts are part of a course of conduct that began outside the limitations period. See, e.g.,

Rosner v. Codata Corp., 917 F. Supp. 1009, 1017 (S.D.N.Y. 1996). In contrast, a copyright

ownership claim “accrues only once, when ‘a reasonably diligent plaintiff would have been put

on inquiry as to the existence of a right.’” Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir. 2011);

see Merchant v. Levy, 92 F.3d 51, 56 (2d Cir. 1996). In other words, a copyright ownership

claim accrues only once and is forever barred three years after the claim first accrues. See Kwan,

634 F.3d at 228.

Plaintiff is not entitled to the more favorable accrual rules governing infringement claims

simply because he labels his dubious, bad-faith “alternative” claim as one for infringement.

“Where, as here, the ownership claim is time-barred, and ownership is the dispositive issue, any

attendant infringement claims must fail.” Kwan, 634 F.3d at 230 (emphasis supplied); see also

Brand v. RMM , No. 10 Civ. 0287, 2011 WL 1496344, at *3-*5 (S.D.N.Y. Apr. 18, 2011)

(plaintiff’s infringement claim “fails as a matter of law” where ownership is the “gravamen” of

the complaint and plaintiff’s “ownership claim is time-barred”); Barksdale v. Robinson, 211

F.R.D. 240, 246 (S.D.N.Y. 2002) (“[T]he statute of limitations cannot be defeated by portraying

an action as one for infringement when copyright ownership rights are the true matter at issue.”

(internal quotation marks omitted)); Minder Music Ltd. v. Mellow Smoke Music Co., No. 98 Civ.

4496, 1999 WL 820575, at *2 (S.D.N.Y. Oct. 14, 1999).




17

Courts in this district have long recognized that where the dispute “does not involve the

nature, extent or scope, of copying,” “ownership forms the backbone of the ‘infringement’

claim” and the infringement claim is time-barred if the corresponding ownership claim is time-

barred. Kwan, 634 F.3d at 229 (“[T]he dispute over FIOL [a book at issue in the case] does not

involve the nature, extent or scope, of copying, and therefore, ownership forms the backbone of

the ‘infringement’ claim at issue here. That is, the dispute involves . . . whether [plaintiff’s]

editorial contributions to FIOL were significant enough to qualify her as the author and therefore

owner of the copyright in FIOL.”); Ortiz v. Guitian Bros. Music Inc., No. 07 Civ. 3897, 2008

WL 4449314, at *3 (S.D.N.Y. Sept. 29, 2008) (“Where, as here, a plaintiff’s copyright

ownership is not conceded . . . copyright ownership, and not infringement, is the gravamen of the

plaintiff’s claim to which the statute of limitations is applied.”); Newsome v. Brown, No. 01 Civ.

2807, 2005 WL 627639, at *5-*6 (S.D.N.Y. Mar. 16, 2005) (gravamen of plaintiff’s claim is

ownership because complaint “alleges nothing specific about the means of infringement” but

alleges that “the song ‘contains material created by Plaintiff,’” “the defendants directly or

indirectly received monies from [Plaintiff’s song] as the result of their actions,” and “the lyrics

and music to the song were created” by Plaintiff), aff’d , 209 F. App’x 11 (2d Cir. 2006).

This case is not about the “nature, extent or scope” of any alleged copying. It is about

whether Plaintiff owns the copyright to the Roc-A-Fella Records logo design, as he claims:

• Plaintiff’s pleading repeatedly attempts to establish his purported ownership of thiswork, evidencing that ownership is the gravamen of this dispute ( see SAC ¶¶ 64, 79(alleging that Plaintiff became the owner of the copyright in the logo when he created itfor the label); id. ¶¶ 66, 80 (repeatedly alleging that Plaintiff “remained the sole owner ofthe copyright” since then); id. ¶ 67 (alleging that Plaintiff “publicly declared hisownership” in two magazines in 1998 and 2000)). See Simmons v. Stanberry, No. 10Civ. 5815, 2012 WL 1004857, at *3-*4 (E.D.N.Y. Mar. 23, 2012) (claim was based onownership where complaint, inter alia, “explained in detail the process by which” plaintiff acquired copyright and “discussed Plaintiff’s ownership throughout”).




18

• The Roc-A-Fella record label began treating Plaintiff’s alleged design as its own fromvirtually the moment of its alleged creation, never paid Plaintiff any royalties for its use,and publicly repudiated Plaintiff’s claim to ownership in December 1996 when it filed asuccessful trademark application for the logo. (See SAC ¶ 34; Ex. A to the Declaration ofCynthia S. Arato, dated December 9, 2013 (“Arato Decl”).

2) In contrast, Plaintiff did not

claim copyright ownership of his purported logo design until 14 years later, when he belatedly registered the work in 2010. (SAC ¶ 77.)

• The theory of Plaintiff’s complaint – that he created the copyrighted work for thespecific use of the Roc-A-Fella label3 – is typical of “infringement” claims that are reallyownership claims in disguise. See Brand , 2011 WL 1496344 at *3 (claim was based onownership where plaintiff claimed to have created work for use by defendants); Ortiz ,2008 WL 4449314 at *1, *3 (same).

Ownership claims accrue “when ‘a reasonably diligent plaintiff would have been put on

inquiry as to the existence of a right.’” Kwan, 634 F.3d at 228. “[A]ny number of events can

trigger the accrual of an ownership claim,” id., including “[a] defendant’s express assertion of

adverse ownership or a plain and express repudiation of plaintiff’s ownership,” Brand , 2011 WL

1496344 at *4 (internal quotation marks omitted). Accordingly, events such as “registering the

copyright in defendant’s own name, distributing the work with copyright notice identifying

defendant as the owner, or exploiting the work for years without paying royalties to plaintiff will

trigger the accrual of the statute of limitations.” Id. (internal quotation marks and brackets

omitted).

Under this standard, Plaintiff’s ownership claim is untimely. First, as Plaintiff contends,

Defendants allegedly have been “continuously” infringing his work through their widespread,

2 Exhibit A to the Arato Decl. is a true and correct copy of the Roc-A-Fella label’s trademark registration

from the Principal Register of the United States Patent and Trademark Office, which this Court may consider on amotion to dismiss. See Telebrands Corp. v. Del Labs., Inc., 719 F. Supp. 2d 283, 287 n.3 (S.D.N.Y. 2010) (On aRule 12(b)(6) motion to dismiss, “[t]he Court may properly take judicial notice of official records of the UnitedStates Patent and Trademark Office and the United States Copyright Office.”)

3 Plaintiff allegedly titled his “work of visual art” the “Original Roc Logo” both when he purportedly createdit in 1995 (SAC ¶ 64), and, again, when he belatedly registered it in 2010 ( see Ex. B to Arato Decl. (officialCopyright Office record (of which this Court may take judicial notice, see supra n.2) listing the title of Plaintiff’s purported copyrighted work as “Original Roc Logo”)).




19

public, and exclusive use of the logo since at least 1996. (SAC ¶ 34.) Because Plaintiff’s bad

faith copyright theory presumes that he failed to receive a single payment from Defendants for

the use of that logo throughout that seventeen-year period, his ownership claim accrued as early

as 1996 or, at the latest, in 2006 when Defendants failed to pay him his purported “lump sum

royalty” – in either case, certainly more than three years before bringing this suit. See, e.g.,

Santa-Rosa v. Combo Records, 471 F.3d 224, 228 (1st Cir. 2006) (ownership claim of a plaintiff

who claimed to have contract with defendant was time-barred where the defendant was “openly,

and quite notoriously, s[elling] [plaintiff’s] records without providing payment to him” more

than three years before plaintiff brought suit); Brand , 2011 WL 1496344 at *4 (ownership claim

untimely where plaintiff failed to receive royalties for more than a decade); Ortiz , 2008 WL

4449314 at *4 (“[T]he Defendants’ open distribution and exploitation of the Motion Picture and

Score without paying any royalties to [plaintiff] should have put [plaintiff] on notice that

Defendants rejected his claim to copyright in the Score.”); Carell v. Shubert Org., Inc., 104 F.

Supp. 2d 236, 249 (S.D.N.Y.2000) (“[N]on-payment of royalties should have put [plaintiff] on

notice” as to her ownership claims); Dewan v. Blue Man Grp. Ltd. P’ship, 73 F. Supp. 2d 382,

387 (S.D.N.Y.1999) (plaintiff’s co-authorship claim was time-barred when the defendants

“fail[ed] to respond to [plaintiff’s] proposed agreements” and did not pay plaintiff any royalties).

Indeed, as Plaintiff readily admits, the Roc-A-Fella record label was using the logo on

records and other merchandise openly and notoriously for years before this suit was filed, such

that the logo became “universally recognized as an iconic symbol of Jay-Z (defendant Shawn

Carter), one of the most successful recording artists in the history of popular music.” (SAC ¶ 34




20

(emphasis added).) In fact, Plaintiff has recognized the logo design as “Jay-Z’s unmistakable

Roc-A-Fella logo” since at least 2000. (Ex. C to Arato Decl.)4

Second, the record label expressly repudiated Plaintiff’s purported ownership when it

registered, and obtained exclusive nationwide rights to, the logo in December 1996. (See Ex. A

to Arato Decl.) That registration is an express declaration of an exclusive, nationwide right to

use and exploit the logo design – a declaration that is fundamentally inconsistent with Plaintiff’s

claim that he is the sole owner of all rights to the logo design, and that the Defendants’ use of the

design was, accordingly, “continuously” infringing since 1996. Cf. Brand , 2011 WL 1496344 at

*4 (act of registering copyright in work put plaintiff on notice of ownership claim); Ortiz , 2008

WL 4449314 at *4 (same).

For these reasons, Plaintiff’s ownership claim, and any attendant infringement claim, is

untimely and should be dismissed with prejudice.

III. THE COURT SHOULD STRIKE THE INAPPROPRIATE LEGAL

ARGUMENT FROM THE SECOND AMENDED COMPLAINT

Federal Rule of Civil Procedure 12(f) provides in relevant part that “the court may order

stricken from any pleading . . . any redundant, immaterial, impertinent, or scandalous matter.”

Motions to strike are left to the discretion of the court. See, e.g., In re Platinum & Palladium

Commodities Litig., 828 F. Supp. 2d 588, 593 (S.D.N.Y. 2011). “[I]t is inappropriate to include

legal argument and briefing within a complaint,” Gleis v. Buehler , No. 3:11 CV663, 2012 WL

4

Exhibit C to the Arato Decl. is a magazine article from 2000 in which, according to the AmendedComplaint, Plaintiff “publicly declared” ownership of the copyright in the logo design. (SAC ¶ 67.) That allegationcannot bear scrutiny, as the Court’s reading of the annexed article will reveal. Plaintiff makes no claim to be theowner of the copyright in the logo design in the article. All he claims is that he was behind “the concept and designfor Jay-Z’s unmistakable Roc-A-Fella logo.” (Ex. C to Arato Decl. (emphasis added).) If anything, this is aconcession of the Roc-A-Fella record label’s ownership of the logo. (This Court may properly consider this articleon this motion, as Plaintiff included it in his complaint. See Louis Vuitton Mallatier S.A. v. Warner Bros. Entm’t

Inc., 868 F. Supp. 2d 172, 176 (S.D.N.Y. 2012).)




21

1194987, at *5 (D. Conn. Apr. 10, 2012), and hence such matter should be stricken pursuant to

Rule 12(f), see Black v. UNUMProvident Corp., 245 F. Supp. 2d 194, 197-98 (D. Me. 2003)

(striking, pursuant to Rule 12(f), legal arguments and redundant summaries of allegations

contained in the complaint); Barrett v. City of Allentown, 152 F.R.D. 50, 53 (E.D. Pa. 1993)

(striking, pursuant to Rule 12(f), “legal argument in support of the claims”); cf. Norton-Griffiths

v. Wells Fargo Home Mortgage, No. 5:10 Civ. 169, 2011 WL 884456, at *6 (D. Vt. Mar. 11,

2011) (granting leave to amend but directing plaintiff to omit legal arguments contained in the

proposed amended complaint).

As set forth above, the Second Amended Complaint is replete with redundant, immaterial

and impertinent matter, including Plaintiff’s copious arguments, quotes from cases, case

citations, and Plaintiff’s opinions about the legal arguments that Defendants purportedly made in

their prior motion papers. All of these immaterial and redundant allegations, which are identified

and highlighted in Exhibit D to the Arato Decl., have no place in a pleading under the Federal

Rules and should be stricken.




CONCLUSION

For the foregoing reasons, the Court should grant the UMG Defendants’ motion to

dismiss Plaintiff’s copyright claim with prejudice and their motion to strike those portions of the

Second Amended Complaint highlighted in Exhibit D of the Arato Decl.

Dated: New York, New York Respectfully submitted,December 9, 2013

SHAPIRO, ARATO & ISSERLES LLP

By: s/ Cynthia S. AratoCynthia S. AratoJeremy Licht

500 Fifth Avenue40th Floor New York, New York 10110Telephone: (212) 257-4880Fax: (212) [email protected] [email protected]

Attorneys for Defendants Shawn Carter, UMG Recordings, Inc., The Island Def Jam Music Group, a division of UMG

Recordings, Inc., and Roc-A-Fella Records, LLC


walker v. carter - motion to dismiss (roc-a-fella logo lawsuit)

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