Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 1 of 10
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF CALIFORNIA
`
`ALMUT REINICKE,
`
`CASE NO. 12cv1405-GPC(KSC)
`
`vs.
`
`Plaintiff,
`
`CREATIVE EMPIRE, LLC, dba
`MANGOLANGUAGES.COM, a Michigan
`Limited Liability Company; and DOES 1-10,
`inclusive,
`
`Defendants.
`
`ORDER GRANTING IN PART
`AND DENYING IN PART
`DEFENDANT’S MOTION TO
`DISMISS AND MOTION FOR A
`MORE DEFINITE STATEMENT
`
`[Dkt. No. 4.]
`
`Before the Court is Defendant Creative Empire LLC’s motion to dismiss and motion for a more
`definite statement. (Dkt. No. 4.) Plaintiff filed an opposition on November 30, 2012. (Dkt. No. 12.)
`Defendant filed a reply on December 14, 2012. (Dkt. No. 13.) The motions are submitted on the
`papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). After a review of the briefs,
`supporting documentation, and applicable law, the Court GRANTS in part and DENIES in part
`Defendant’s motion to dismiss and motion for a more definite statement.
`Background
`On June 11, 2012, Plaintiff Almut Reinicke filed a complaint against Defendant Creative
`Empire, LLC dba mangolanguages.com alleging copyright infringement, conversion and quantum
`meruit. (Dkt. No. 1, Compl.) Defendant has an online language learning software commonly known
`
`- 1 -
`
`[12cv1405-GPC(KSC)]
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 2 of 10
`
`and distributed over the Internet as Mango 2.0. (Id. ¶ 1.) It provides a online text content language
`learning services. (Id. ¶¶ 7, 9.)
`Plaintiff is a native German speaker and Defendant contracted with Plaintiff to create a
`“specific online text content for the German language learning services that were part of Mango 2.0.”
`(Id. ¶ 10.) Plaintiff used her creative skills so students using the Mango 2.0 language learning services
`would complete the German language program and be conversant, be able to read and understand basic
`German writings, and be able to communicate in writing in German. (Id.)
`Plaintiff alleges that the text content constitutes the creative Work created and owned by
`Plaintiff. Plaintiff registered her Work entitled “Almut Reincke Mango German Course I” with the
`United States Copyright Office. (Id.)
`1
`The Work consists of 10 chapters with specific conversational and grammatical goals for each
`chapter. (Id. ¶ 11.) Each chapter includes detailed instructions on proper grammar and contain
`grammar and cultural notes that provide the necessary context for the content contained in the
`particular chapter. (Id.) Plaintiff also created supplemental materials for use in the Mango 2.0 German
`course which provided students with phonetic spellings of German words. (Id.)
`Plaintiff alleges she was an independent contractor with Defendant and was never an employee.
`(Id. ¶ 12.) The terms for Plaintiff’s creation of the Work were not contained in a written agreement
`between the parties. (Id.) Defendant paid Plaintiff a nominal sum for the substantial time and effort
`to create the Work and did not pay the reasonable value for her services. (Id.)
`Despite the fact that Defendant did not own the copyright to the Work, it incorporated the
`Work into its online language learning services for Mango 2.0 since November 2010. (Id. ¶ 13.)
`Defendant has marketed and sold the Work online via the website and continues to do so. (Id. ¶ 13.)
`It has also used the Work at conferences and trade shows and has received great profit and benefit from
`the Work. (Id.)
`
`Discussion
`Defendant moves to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), Plaintiff’s
`
`Later in the Complaint, Plaintiff states the she has filed a copyright registration application
`1
`with the U.S. Copyright Office. (Compl. ¶ 16.) It is not clear whether the Work is registered with the
`U.S. Copyright Office.
`
`- 2 -
`
`[12cv1405-GPC(KSC)]
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 3 of 10
`
`second claim for relief for conversion, third claim for relief for quantum meruit, prayer for relief for
`punitive damages, statutory damages and attorney’s fees in connection with its first claim for relief of
`copyright infringement. Defendant also moves for a more definite statement pursuant to Federal Rule
`of Civil Procedure 12(e) as to the first claim of relief for copyright infringement.
`A.
`Legal Standard for Federal Rule of Civil Procedure 12(b)(6)
`Federal Rule of Civil Procedure 12(b)(6) permits dismissal for “failure to state a claim
`upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal under Rule 12(b)(6)
`is appropriate where the complaint lacks a cognizable legal theory or sufficient facts to support
`a cognizable legal theory. See Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699 (9th Cir.
`1990). A complaint may survive a motion to dismiss only if, taking all well-pleaded factual allegations
`as true, it contains enough facts to “state a claim to relief that is plausible on its face.” Ashcroft v.
`Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
`570 (2007)). “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.” Id.
`“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
`do not suffice.” Id. “In sum, for a complaint to survive a motion to dismiss, the non-conclusory
`factual content, and reasonable inferences from that content, must be plausibly suggestive of a claim
`entitling the plaintiff to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009)
`(quotations omitted). In reviewing a Rule 12(b)(6) motion, the Court accepts as true all facts alleged
`in the complaint, and draws all reasonable inferences in favor of the plaintiff. al-Kidd v. Ashcroft, 580
`F.3d 949, 956 (9th Cir. 2009).
`B.
`Second Cause of Action -Conversion
`Defendant alleges that the conversion claim is preempted by the Copyright Act. In opposition,
`Plaintiff does not appear to challenge Defendant’s argument. She states that if the remedies available
`to Plaintiff under a claim for conversion are limited to a return of her personal property – “the Work,
`then Plaintiff will accept this remedy, and take back her property from Defendant.” (Dkt. No. 12, P’s
`Opp. at 6.) She further states that since judgment under this claim would not provide compensation
`for wrongful use of the Work, then if conversion is preempted, then it will seek remedies for damages
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 3 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 4 of 10
`
`under copyright infringement.
`The Copyright Act preempts any other “legal or equitable rights that are equivalent to any of
`the exclusive rights within the general scope of copyright.” 17 U.S.C. § 301(a). Section 301(a)
`preempts a state-created right if that right “may be abridged by an act which, in and of itself, would
`infringe one of the exclusive rights [listed in § 106].” Oddo v. Ries, 743 F.2d 630, 635 (9th Cir. 1984)
`(citation omitted). However, there is no preemption if violation of the state right is “predicated upon
`an act incorporating elements beyond mere reproduction or the like.” Id.
`Two conditions must be met for preemption of state law claims under the Copyright Act.
`“First, the content of the protected right must fall within the subject matter of copyright as described
`in 17 U.S.C. §§ 102 and 103. Second, the right asserted under state law must be equivalent to the
`exclusive rights contained in section 106 of the Copyright Act.” Sybersound Records, Inc. v. UAV
`Corp., 517 F.3d 1137, 1150 (9th Cir. 2008) (citing Downing v. Abercrombie & Fitch, 265 F.3d 994,
`1003 (9th Cir. 2001)). A conversion claim is preempted under the Copyright Act when the claim is
`based on rights protected under the Act, such as the publishing, reproduction, adaptation of
`copyrighted material, not when the claim is based merely on possession of said material or violation
`of other rights not covered under the Act. Seng–Tiong Ho v. Taflove, 648 F.3d 489, 502 (7th Cir.
`2011) (“The conversion claim, then, is focused on the defendants’ unauthorized publishing, not
`possession, of the protected work. Because publishing is a right under the Copyright Act, the
`conversion claim is preempted.”); Daboub v. Gibbons, 42 F.3d 285, 289 (5th Cir. 1995) (A claim for
`conversion will be preempted when the theory of recovery merely asserts the wrongful copying,
`distribution, or performance of an interest under the Copyright Act.); A Slice of Pie Productions, LLC
`v. Wayans Bros. Ent., 392 F. Supp. 2d 297, 317 (D. Conn. 2005) (“[E]ven a viable conversion claim
`would be preempted by the Copyright Act since it is based solely on copying, i.e. wrongful use, not
`wrongful possession.”)
`The Complaint alleges that Plaintiff was contracted with Defendant to create the “specific
`online text content for the German language learning services that were part of Mango 2.0.” (Dkt. No.
`1, Compl. ¶ 10.) Although Plaintiff alleges that the Work constitutes material that is the personal
`property of Plaintiff, she claims that Defendant converted her property “by using and misappropriating
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 4 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 5 of 10
`
`the Work” into its “online language learning services for Mango 2.0 which Mango has marketed and
`sold online.” (Id. ¶¶ 13, 22, 24.) Plaintiff’s theory of recovery is based on an intangible property, the
`alleged infringing distribution and sale of the Mango 2.0 software through the Internet.
`Accordingly, the Court concludes that Plaintiff’s second cause of action for conversion is
`preempted by the Copyright Act and GRANTS Defendant’s motion to dismiss the second cause of
`action for conversion.
`C.
`Third Cause of Action - Quantum Meruit
`Defendant argues that the claim for quantum meruit must be dismissed as it is also preempted
`by the Copyright Act. Plaintiff contends that although Defendant unilaterally changed the terms of
`payment, there was always the promise that Plaintiff would share in the profits of the Mango 2.0
`language learning course.
`“Quantum meruit (or quasi-contract) is an equitable remedy implied by the law under which
`a plaintiff who has rendered services benefitting the defendant may recover the reasonable value of
`those services when necessary to prevent unjust enrichment of the defendant.” In re De Laurentiis Ent.
`Group Inc., 963 F.2d 1269, 1272 (9th Cir. 1992) (citing B. Witkin, Summary of California Law:
`Contracts § 91 (1987)). “Quantum meruit is not the same as a contract implied in fact. Quantum
`meruit is based not on the intention of the parties, but rather on the provision and receipt of benefits
`and the injustice that would result to the party providing those benefits absent compensation.” Id.
`As discussed above, two conditions must be met to apply the preemption provision under the
`Copyright Act. See Sybersound Records, Inc., 517 F.3d at 1150. First, the content must fall within
`the subject matter of the Copyright Act. Id. Second, the right asserted under state law must be
`equivalent to the exclusive rights contained in section 106 of the Copyright Act. Id.
`In one case, the district court held that Plaintiff’s claim for quantum meruit was preempted by
`the Copyright Act. Lewis v. Activision Blizzard, Inc., 2012 WL 5199505, *2 (N.D. Cal. 2012).
`Plaintiff was employed with Defendant, a multiplayer online role-playing game developer, in a
`customer service position for in-game issues. Id. at 1. While employed, Plaintiff responded to an
`email requesting voices for game creatures. Id. Defendant recorded her voice and an original song
`she allegedly developed and applied her vocal work to WoW creatures called baby murlocs, which are
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 5 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 6 of 10
`
`virtual pets. Plaintiff alleges that baby murloc pets using her voice and derivatives have been awarded
`to attendees of BlizzCon and other WoW-related events and Defendant sold plush versions of baby
`murlocs through its online store. Id. Plaintiff filed an application for copyright registration for her
`work in baby murloc expressions and the baby murloc song. Id. She alleged that she was not
`employed by Defendant to produce creative content, did not receive additional compensation for her
`creative work and did not assign any rights in copyright to Defendant. Id. She alleged claims for
`copyright infringement and quantum meruit. Id. The Court held that the quantum meruit claim was
`preempted by the Copyright Act because her quantum meruit recovery was based on seeking
`compensation for Defendant’s alleged use of her voice recordings which was equivalent to her rights
`under copyright law. Id. at 4.
`In this case, Plaintiff is seeking compensation for the creation of the Work , which is not a right
`2
`contained in section 106 of the Copyright Act, and Defendant’s alleged commercial use though selling
`copies of her Works to the public, which is a right contained in section 106 of the Copyright Act.
`(Dkt. No. 1, Compl. ¶ 12.)
`Accordingly, the Court GRANTS Defendant’s motion to dismiss the quantum meruit claim as
`it is preempted by the Copyright Act to the extent that the allegation is based on Defendant’s sale of
`copies of Plaintiff’s Work to the public. The Court DENIES Defendant’s motion to dismiss the
`quantum meruit claim to the extent it alleges it seeks compensation for the creation of the Work.
`D.
`Punitive Damages as to Copyright Infringement Claim
`Plaintiff contends that punitive damages must be dismissed because punitive damages are not
`available under the Copyright Act. Defendant contends that punitive damages are allowable and cites
`to TVT Records v. Island Def Jam Music Group, 262 F. Supp.2d 185, 186-87 (S.D.N.Y. 2003)
`(punitive damages may be available if requisite malice is demonstrated and plaintiff has elected to
`recover actual damages, not statutory damages).
`Punitive damages are not available under the Copyright Act. 17 U.S.C. § 504 (authorizing
`actual or statutory damages for copyright infringement); Oboler v. Goldin, 714 F.2d 211, 213 (2d Cir.
`
`Defendant argues that because Plaintiff received a nominal payment for the Work, it cannot
`2
`state a claim for quantum meruit. The Court does not agree with Defendant’s argument.
`
`- 6 -
`
`[12cv1405-GPC(KSC)]
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 7 of 10
`
`1983). Numerous district court cases in the Ninth Circuit has followed this holding. Krisel v.
`Contempo Homes, Inc., 2006 WL 5668181, *3 (C.D. Cal. 2006); Smith & Hawken, Ltd. v.
`Gardendance, Inc., 2004 WL 2496163, *10 (N.D. Cal. 2004); Saregama India Ltd. v. Young, 2003 WL
`25769784, *1 (C.D. Cal. 2003). The Court follows the district courts in this Circuit that hold that
`punitive damages are not available under the Copyright Act.
`Accordingly, the Court GRANTS Defendant’s motion to dismiss the prayer for relief of
`punitive damages in the First Cause of Action for Copyright Infringement.
`E.
` Statutory Damages and Attorneys’ Fees as to Copyright Infringement Claim
`Defendant argues that statutory damages and attorney’s fees must be dismissed because those
`damages are not available based on the allegations in the Complaint. Plaintiff does not address or
`oppose this argument.
`17 U.S.C. § 412 provides that there is no award for statutory damages or attorney’s fees for
`(1) any infringement of copyright in an unpublished work commenced before the
`effective date of its registration; or (2) any infringement of copyright commenced after
`first publication of the work and before the effective date of its registration, unless
`such registration is made within three months after the first publication of the work.
`
`17 U.S.C. § 412.
`According to the Complaint, Plaintiff “has filed a copyright registration application with the
`United States Copyright Office for the Work.” (Dkt. No. 1, Compl. ¶ 16.) The Complaint also states
`that “Plaintiff has registered her Work entitled ‘Almut Reinicke Mango German Course I’ with the
`United States Copyright Office. (Id. ¶ 10.) It is not clear from the Complaint whether the Work has
`been registered and if so, the effective date of the registration. Accordingly, the Court GRANTS
`Defendant’s motion to dismiss the prayer for relief for statutory and attorney’s fees under the first
`cause of action.
`F.
`Legal Standard for a Motion for a More Definite Statement
`Federal Rule of Civil Procedure 12(e) provides that:
`[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. The motion must be made before filing a responsive
`pleading and must point out the defects complained of and the details desired.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 7 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 8 of 10
`
`Fed. R. Civ. P. 12(e). “A motion for a more definite statement is used to attack unintelligibility, not
`mere lack of detail, and a complaint is sufficient if it is specific enough to apprise the defendant of the
`substance of the claim asserted against him or her.” San Bernardino Pub. Employees Ass’n v. Stout,
`946 F. Supp. 790, 804 (C.D. Cal. 1996). A motion for a more definite statement should be denied
`“where the information sought by the moving party is available and/or properly sought through
`discovery.” Famolare, Inc. v. Edison Bros. Stores, Inc., 525 F. Supp. 940, 949 (E.D. Cal. 1981).
`1.
`First Cause of Action for Copyright Infringement
`Defendant seeks a more definitive statement as to the allegation in the first cause of action for
`copyright infringement. First, it seeks specific information as to whether Plaintiff owns a valid
`copyright registration. Second, the Complaint fails to describe the Work with sufficient particularity
`to identify it. Third, the Complaint fails to allege what portions of the Work that Defendant has
`allegedly infringed and how such infringement occurred. Lastly, the Complaint alleges that Plaintiff
`demanded that Defendant stop its infringing use of Plaintiff’s copyrights materials but fails to identify
`dates or time period when the demand was made. Plaintiff opposes this motion arguing that there is
`sufficient facts in the complaint to put Defendant on notice as to the substance and scope of Plaintiff’s
`claims.
`To establish an infringement of a copyright claim, Plaintiff must show “(1) ownership of a
`valid copyright, and (2) copying of constituent elements of the work that are original.” Benay v.
`Warner Bros. Ent., Inc., 607 F.3d 620, 624 (9th Cir. 2010). “Ownership consists of: (1) originality in
`the author; (2) copyrightability of the subject matter; (3) a national point of attachment of the work,
`such as to permit a claim of copyright; (4) compliance with applicable statutory formalities.” Four
`Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1147 (S.D. Cal. 2005) (citing Melville B.
`Nimmer & David Nimmer, Nimmer on Copyright, § 13.01 at 13-4 (2005)). In Four Navy Seals, the
`Court granted Defendants’ motion for a more definite statement under Rule 12(e) because the
`copyright holder did not state ownership of a valid copyright in a particular photograph. Id. at 1148.
`In this case, Plaintiff alleges she filed a copyright registration application with the U.S.
`Copyright Office. (Compl. ¶ 16.) It also states that she has registered the Work with the Copyright
`Office. (Id. ¶ 10.) However, she does not indicate whether the copyright was registered and when it
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 8 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 9 of 10
`
`was registered which is a element of establishing ownership in a copyright infringement claim.
`Accordingly, the Court GRANTS Defendant’s motion for a more definite statement as to this
`allegation.
`As to the contentions that the Complaint fails to allege a description of the Work with sufficient
`particularity to identify it and fails to allege what portions of the Work that Plaintiff has allegedly
`infringed, these are without merit. Plaintiff asserts that Defendant have misappropriated the entire
`Work consisting of 10 chapters. The Work consists of the “online text content for the German
`language learning services.” (Dkt. No. 1, Compl. ¶ 10.) As to the allegation that Plaintiff failed to
`state when it made its demand on Defendant to stop using her Work, those are facts that can be
`obtained in discovery and need not be pled in the Complaint.
`Accordingly, the Court GRANTS Defendant’s motion for a more definite statement as to
`whether she has ownership of a valid copyright. The Court DENIES Defendant’s motion for a more
`definite statement as to the remaining arguments.
`Conclusion
`Based on the above, the Court GRANTS in part and DENIES in part Defendant’s motion to
`dismiss and motion for a more definite statement. Specifically, the Court GRANTS Defendant’s
`motion to dismiss 1) the second cause of action for conversion as preempted by the Copyright Act; 2)
`the third cause of action for quantum meruit as preempted by the Copyright Act to the extent Plaintiff
`seeks damages based on Defendant’s sale of copies of Plaintiff’s Work to the public; 3) the punitive
`damages prayer for relief as to the first cause of action; 4) the statutory and attorney’s fees prayer for
`relief as to the first cause of action. The Court DENIES Defendant’s motion to dismiss the quantum
`meruit claim to the extent the Complaint alleges it seeks compensation for the creation of the Work.
`The Court also GRANTS Defendant’s motion for a more definite statement as to the first cause
`of action as to copyright infringement concerning whether the Work has been registered and when it
`was registered. The Court DENIES Defendant’s motion for a more definite statement as to the claim
`that the Complaint fails to describe the Work with sufficient particularity to identify it, fails to allege
`what portions of the Work that Defendant has allegedly infringed and how such infringement occurred,
`and fails to identify when Plaintiff demanded Defendant to stop infringing her Work.
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 9 -
`
`[12cv1405-GPC(KSC)]
`
`

`
`Case 3:12-cv-01405-GPC-KSC Document 15 Filed 01/24/13 Page 10 of 10
`
`Plaintiff shall file an amended complaint no later than thirty (30) days from the date stamped
`on this order curing the deficiencies of pleading identified above.
`IT IS SO ORDERED.
`
`DATED: January 24, 2013
`
`HON. GONZALO P. CURIEL
`United States District Judge
`
`1 2 3 4 5 6 7 8 9
`
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`20
`21
`22
`23
`24
`25
`26
`27
`28
`
`- 10 -
`
`[12cv1405-GPC(KSC)]