Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 1 of 8
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`UNITED STATES DISTRICT COURT
`DISTRICT OF MASSACHUSETTS
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`DOUGLAS CARP,
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`ROBERT CARP
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`Plaintiffs,
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`vs.
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`UNITED CULTIVATION, LLC
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`Defendant.
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`_____________________________________|
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`Civil Action No. 1:22-cv-12202-DJC
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`DEFENDANT UNITED CULTIVATION, LLC’S
`MEMORANDUM IN SUPPORT OF MOTION TO DISMISS THE COMPLAINT, OR, IN
`THE ALTERNATIVE, MOTION FOR A MORE DEFINITE STATEMENT
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`I.
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`INTRODUCTION
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`In their Complaint for Damages and Injunctive Relief for Copyright Infringement
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`(“Complaint”), Plaintiffs allege that they are the authors of certain standard operating procedures
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`for cannabis dispensaries, cannabis processors, and cannabis cultivators. Complaint ¶¶ 13-15.
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`Defendant United Cultivation, LLC is a cannabis dispensary in Ashby, Massachusetts. Plaintiffs
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`allege that certain portions of Plaintiffs’ alleged standard operating procedures were copied by
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`Defendant in submissions to the Massachusetts Cannabis Control Commission, which were then
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`published by that commission. Complaint ¶¶ 16-19. Plaintiffs also allege that they have submitted
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`certain copyright documentation to the U.S. Copyright Office. Complaint ¶ 21.
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`However, Plaintiffs nowhere allege that they have obtained copyright registration.
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`Without any copyright registration, a suit for copyright infringement is barred. Therefore, the
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`Complaint must be dismissed in its entirety.
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`Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 2 of 8
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`Furthermore, statutory damages and attorneys’ fees are not permitted here, as Plaintiffs
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`have not alleged any copyright registration, and failed to allege that they obtained a copyright
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`registration within three months of publication of the work at issue. Therefore, Plaintiffs’ claims
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`for statutory damages and attorneys’ fees must be dismissed.
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`In the alternative, the Court should require Plaintiffs to provide a more definite statement,
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`under Fed. R. Civ. P. 12(e). Specifically, if Plaintiffs have obtained copyright registrations for the
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`works at issue, Plaintiffs should be required to provide identifying information and copyright
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`registration certificates for same.
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`II.
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`LEGAL STANDARD
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`Rule 8 of the Federal Rules of Civil Procedure requires that a complaint contain a “short
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`and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
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`8(a)(2). Failure to plead sufficient facts to state a claim to relief that is “plausible on its face”
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`warrants dismissal. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). It is a Plaintiffs’ burden to show
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`its “entitlement to relief” with more than “labels and conclusions, and a formulaic recitation of the
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`elements of a cause of action.” Twombly, 550 U.S. at 555.
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`Although a Rule 12(b)(6) motion to dismiss accepts the Complaint’s well-pleaded factual
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`allegations as true for purposes of the motion, the Court is not required to accept mere conclusions
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`or “bare assertions … amount[ing] to nothing more than a ‘formulaic recitation of the elements’”
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`of a claim. Iqbal, 556 U.S. at 681, citing Twombly, 550 U.S. at 555. “Nor does a complaint suffice
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`if it tenders naked assertions devoid of further factual enhancement.” Iqbal, 556 U.S. at 678
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`(internal quotations omitted). “[C]onclusory allegations that merely parrot the relevant legal
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`standard are disregarded, as they are not entitled to the presumption of truth.” Hannon v. Beard,
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`979 F. Supp. 2d 136, 139 (D. Mass. 2013).
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`Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 3 of 8
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`Fed. R. Civ. 12(e) provides that “[a] party may move for a more definite statement of a
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`pleading to which a responsive pleading is allowed but which is so vague and ambiguous that the
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`party cannot reasonably prepare a response.” A Rule 12(e) motion is appropriate when “a pleading
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`fails to specify the allegations in a manner that provides sufficient notice” to a defendant.
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`Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002).
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`III. ARGUMENT
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`A.
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`Plaintiffs Fail to Allege Ownership of Copyright Registrations in the Works
`at Issue
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`The single count of the Complaint consists of a claim of copyright infringement.
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`Complaint ¶¶ 30-33. At no point does the Complaint allege that Plaintiffs own any copyright
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`registrations. Instead, the Complaint alleges that “Copyright documentation was provided to the
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`U.S. Copyright Office” under service requests. Complaint ¶ 21.
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`B.
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`Because Plaintiffs Fail to Allege Ownership of Copyright Registrations, Their
`Suit Fails a Matter of Law
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`17 U. S. C. §411(a) provides that “no civil action for infringement of the copyright in any
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`United States work shall be instituted until . . . registration of the copyright claim has been made
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`in accordance with this title.” The US Supreme Court recently confirmed that the “registration”
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`required to file a copyright infringement action under this statute is “not when an application for
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`registration is filed, but when the Register has registered a copyright after examining a properly
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`filed application.” Fourth Estate v. Wall-Street.com, LLC, 139 S.Ct. 881, 892 (2019).
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`Therefore, a copyright registration must be obtained prior to filing suit for copyright
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`infringement. Because Plaintiffs have not alleged a copyright registration, the Complaint does not
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`meet Twombly’s requirement of containing facts sufficient to “state a claim to relief that is
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`plausible on its face.” Twombly, 550 U.S. at 570. This suit for copyright infringement suit is
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`therefore improper and must be dismissed.
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`C.
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`Because Plaintiffs Fail to Allege Ownership of Any Current Copyright
`Registrations or Any Copyright Registrations Within Three Months of
`Publication, Their Claims for Statutory Damages and Attorneys’ Fees Fail as
`a Matter of Law
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`17 U. S. C. §412 provides that “no award of statutory damages or of attorney’s fees, as
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`provided by [17 U. S. C. §§] 504 and 505, shall be made for… any infringement of copyright in
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`an unpublished work commenced before the effective date of its registration; or any infringement
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`of copyright commenced after first publication of the work and before the effective date of its
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`registration, unless such registration is made within three months after the first publication of the
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`work.”1
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`In the Complaint, Plaintiffs claim “statutory damages for infringement of each separate
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`copyright as set forth in 17 U. S. C. §504,” and attorneys’ fees for copyright infringement, the
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`claim to which is based in 17 U.S.C. §505.2 Complaint ¶ 34(4), 33. However, under 17 U. S. C.
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`§412, the Plaintiffs are barred from statutory damages and attorneys’ fees. Here, Plaintiffs allege
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`that they commercially released, or published, the claimed works at issue on January 1, 2018.
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`Complaint ¶¶ 13, 14, 15. Plaintiffs also claim that the alleged infringement had already
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`commenced as of at least the date of the Complaint, on December 27, 2022. Complaint ¶¶ 30-33.
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`Yet, as discussed above, Plaintiffs do not allege that they have obtained copyright registrations at
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`any time.
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`Because it is far past three months after the first publication of the claimed works at issue,
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`because the Plaintiffs allege that infringement has already begun, and because the Plaintiffs have
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`1 This statute also provides exceptions to its requirements, only for certain actions under 17
`U.S.C. §106A(a), 17. U.S.C. §408(f), and 17 U.S.C. §411(c), none of which apply here.
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` 2
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` 17 U.S.C. §505 is titled “Remedies for infringement: Costs and attorney’s fees,” and provides:
`“In any civil action under this title [Title 17. Copyrights], the court in its discretion may allow
`the recovery of full costs by or against any party other than the United States or an officer
`thereof. Except as otherwise provided by this title, the court may also award a reasonable
`attorney's fee to the prevailing party as part of the costs.”
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`not alleged registration of the claimed works, Plaintiff cannot meet the requirements of 17 U.S.C.
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`§412. Therefore, Plaintiffs are not, nor can they ever be, entitled to statutory damages and
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`attorneys’ fees, both of which are provided for in copyright infringement actions only under 17
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`U.S.C. §412. Plaintiffs’ claims to statutory damages and attorneys’ fees should be dismissed.
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`Amador v. McDonald's Corp., 601 F. Supp. 2d 403, 409-10 (D.P.R. 2009) (holding that plaintiff
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`as a matter of law was not entitled to statutory damages and attorney’s fees, because “the
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`copyrighted work must have been registered prior to commencement of the infringement, unless
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`the registration is made within three months after first publication of the work”); Dickert v. N.
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`Coast Family Health, Inc., No. 14–CV–316–JL, 2015 WL 3988676, at *4, *6 (D.N.H. June 10,
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`2015) (granting defendant's motion to dismiss the claim for statutory damages, because plaintiff
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`failed to “register the website [with the Copyright Office] until well after the alleged infringement
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`began, and therefore, cannot recover statutory damages”); see also Martin v. Walt Disney Internet
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`Group, No. 09CV1601-MMA, 2010 WL 2634695, at *4 (S.D. Cal. June 30, 2010) (granting
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`copyright infringement defendants’ motion to dismiss plaintiff’s requests for statutory damages,
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`enhanced damages, and attorney’s fees, under 17 U. S. C. §412).
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`Because of this, Plaintiffs’ claims for statutory damages and attorneys’ fees are improper
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`and must be dismissed.
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`D.
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`In the Alternative, Plaintiffs Should Be Ordered to Provide a More Definite
`Statement of Identifying Information and Copyright Registration
`Certificates for any Relevant Copyright Registrations
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`As set forth above, a registered copyright is required in order to file a civil action for
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`copyright infringement. 17 U. S. C. §411(a); Fourth Estate v. Wall-Street.com, LLC, 139 S.Ct.
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`881, 892 (2019).
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`Here, Plaintiffs allege that “[c]opyright documentation was provided to the U.S. Copyright
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`Office” under certain service requests. Complaint ¶ 21. However, Plaintiffs do not indicate that
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`Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 6 of 8
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`they have obtained copyright registrations in the alleged works at issue, nor do Plaintiffs provide
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`statements or exhibits demonstrating registration, such as US copyright registration numbers or
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`US copyright registration certificates. Furthermore, even if there are any unalleged copyright
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`registrations in existence for the alleged works at issue, as Plaintiffs have indicated in discussions
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`with Defendant’s counsel, it is unclear that any such registrations would definitively correspond
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`to the alleged works at issue in these proceedings. Therefore, in the alternative to its motion to
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`dismiss, Defendant moves that Plaintiffs be ordered to provide a more definite statement of their
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`ownership of a valid US copyright registration for each alleged work at issue in these proceedings,
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`including by providing the US copyright registration numbers and copies of US copyright
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`registration certificates for each such alleged registration. Reinicke v. Creative Empire, LLC, No.
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`12CV1405-GPC KSC, 2013 WL 275900, at *6 (S.D. Cal. Jan. 24, 2013) (granting defendant
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`motion for a more definite statement because the complaint failed to allege when and whether the
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`copyright at issue was registered).
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`Therefore, in the alternative to the motion to dismiss, Defendant’s motion for a more
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`definite statement under Fed. R. Civ. P. Rule 12(e) should be granted.
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`IV. CONCLUSION
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`For all the reasons set forth above, the Complaint in its entirety, and the Plaintiffs’ claims
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`for statutory damages and attorneys’ fees, should be dismissed. In the alternative, the Court should
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`require Plaintiffs to provide a more definite statement, providing identifying information and
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`copyright registration certificates for any copyright registrations in the alleged works at issue in
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`this action.
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`Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 7 of 8
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`Dated: January 24, 2023
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`Respectfully submitted,
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`UNITED CULTIVATION, LLC
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`By Its Attorney,
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`/s/ Tony K. Lu
`Tony K. Lu, Esq. (BBO #678791)
`Dentons US LLP
`One Beacon Street, Suite 25300
`Boston, MA 02108
`Telephone: 617-235-6817
`Fax: 617-235-6899
`tony.lu@dentons.com
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`Case 1:22-cv-12202-DJC Document 9 Filed 01/24/23 Page 8 of 8
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`CERTIFICATE OF SERVICE
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`I hereby certify that on January 24, 2023, I caused to be filed electronically a true
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`copy of the foregoing document with the Clerk of the Court using the CM/ECF system, which will
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`notify the parties of record via electronic notification.
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`A copy of the foregoing will also be sent via electronic mail to the recipient below:
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`Douglas Carp and Robert Carp
`21 Eastern Point Road
`Gloucester, MA 01930
`Phone: 213-533-0053
`rcarp@post.harvard.edu
`bobcarp522@gmail.com
`PRO SE
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`/s/Tony K. Lu
`Tony K. Lu
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`8
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