IN THE UNITED STATES DISTRICT COURT FOR THE
`WESTERN DISTRICT OF MISSOURI
`SOUTHERN DIVISION
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`WESLEY W. FLACK,
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` Plaintiff,
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`vs.
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`CITIZENS MEMORIAL HOSPITAL,
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`Case No. 6:18-cv-3236-MDH
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`ORDER
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` Defendant.
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`Before the Court is Defendant’s Motion to Dismiss Plaintiff’s Amended Complaint. (Doc.
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`13). The motion is ripe for review and for the reasons stated herein, the Court grants Defendant’s
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`motion to dismiss.
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`BACKGROUND
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`Plaintiff has filed this lawsuit against Citizen Memorial Hospital alleging federal copyright
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`infringement (Count I); breach of contract (Count II); unfair business practices (Count III);
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`accounting (Count IV); and declaratory relief (Count V). Plaintiff states he creates, writes, and
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`illustrates personal safety material and owns copyrighted material: specifically the following:
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`“text; (includes fiction, nonfiction, poetry computer programs, etc.); Illustration; and Photographs
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`(copyrighted material).” Plaintiff alleges this copyrighted material was registered with the
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`Copyright Office on March 10, 2006, Registration Number: TXul-303-189.
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`Plaintiff claims Defendant is using his copyrighted materials in products it both
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`manufactures and markets without Plaintiff’s permission, and has been doing so since August
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`2016. Plaintiff further alleges he has demanded Defendant to stop manufacturing and marketing
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`this material without his consent but it has failed to do so.
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`Case 6:18-cv-03236-MDH Document 29 Filed 03/07/19 Page 1 of 6
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`1
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`In addition, Plaintiff claims he entered into a verbal contract with Defendant in June 2004.
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`Plaintiff claims Defendant breached said contract in June 2004 by failing to pay Plaintiff and
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`failing to provide an accounting. Plaintiff claims under the contract Defendant also failed to obtain
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`prior approval for displays and marketing materials as agreed to in the verbal contract.1 Finally,
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`Plaintiff alleges Defendant has engaged in fraudulent, deceptive, unfair and wrongful conduct by
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`registering Plaintiff’s materials with the U.S. Copyright Office and falsely claiming ownership of
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`Plaintiff’s “works.”
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`Defendant has moved to dismiss Plaintiff’s First Amended Complaint arguing: 1)
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`Plaintiff’s copyright claims are barred by sovereign immunity; 2) Plaintiff’s remaining claims are
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`barred by the statute of limitations and statute of frauds; and 3) Plaintiff has failed to state a claim
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`upon which relief can be granted.
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`STANDARD
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`“To survive a motion to dismiss [under 12(b)(6)], a complaint must contain sufficient
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`factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Ashcroft v.
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`Iqbal, 556 U.S. 662, 678 (2009). A complaint is facially plausible where its factual content “allows
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`the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
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`Id. The plaintiff must plead facts that show more than a mere speculation or possibility that the
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`defendant acted unlawfully. Id.; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). While the
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`Court accepts the complaint’s factual allegations as true, it is not required to accept the plaintiff’s
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`legal conclusions. Ashcroft, 556 U.S. at 678. “Threadbare recitals of the elements of a cause of
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`action, supported by mere conclusory statements, do not suffice.” Id. The court’s assessment of
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`1 Plaintiff does not set forth any specific details of the terms of the alleged verbal contract between
`the parties.
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`whether the complaint states a plausible claim for relief is a “context-specific task that requires the
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`reviewing court to draw on its judicial experience and common sense.” Ashcroft, 556 U.S. at 679.
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`The reviewing court must read the complaint as a whole rather than analyzing each allegation in
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`isolation. Braden v. Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir. 2009).
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`DISCUSSION
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`I.
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`Federal Copyright Infringement
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`Defendant argues Plaintiff’s claims for federal copyright infringement fail because
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`Defendant is entitled to sovereign immunity as a political subdivision of the state. “[S]overeign
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`immunity applies to the government and its political subdivisions unless waived or abrogated or
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`the sovereign consents to suit.” Metro. St. Louis Sewer Dist. v. City of Bellefontaine Neighbors,
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`476 S.W.3d 913, 921 (Mo. 2016); citing Mo. Rev. Stat. § 537.600. Further, “the operation of a
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`hospital by a city, county or similar public corporation entity is a governmental function.” State
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`ex rel. New Liberty Hosp. Dist. v. Pratt, 687 S.W.2d 184, 186 (Mo. 1985). Sovereign immunity
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`cannot be breached without the state’s consent, and such consent must flow from the legislature.
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`Id. at 187 (internal citations omitted).2
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`The issue before the Court is whether the Copyright Remedy Clarification Act (“CRCA”)
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`waives the state’s sovereign immunity. Congress enacted the CRCA, the Patent and Plant Variety
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`Protection Remedy Clarification Act (“Patent Remedy Act”), and the Trademark Remedy
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`Clarification Act (“TRCA”) in 1990. See InfoMath, Inc. v. Univ. of Arkansas, 633 F. Supp. 2d
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`2 “…[R]arely do potential plaintiffs know, or much less frequently consider, the possibility that a
`state entity with which they come in contact will be immune in tort. Nevertheless, in light of the
`legislature’s reinstatement of sovereign immunity, the question of fairness has been definitively
`removed from legitimate consideration.” Id.
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`674, 679 (E.D. Ark. 2007) (internal citations omitted).3 Neither the United States Supreme Court,
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`nor the Eighth Circuit, have determined whether Congress had a valid power under Section 5 to
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`abrogate state sovereign immunity under the CRCA. See Issaenko v. Univ. of Minnesota, 57 F.
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`Supp. 3d 985, 1004 (D. Minn. 2014);4 and Allen v. Cooper, 895 F.3d 337, 354 (4th Cir. 2018),
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`petition for cert. filed, (U.S. Jan. 4, 2019) (No. 18-877) (“we join the numerous other courts to
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`have considered this issue since Florida Prepaid, all of which have held the Act invalid.”) (citing
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`Chavez v. Arte Publico Press, 204 F.3d 601, 607–08 (5th Cir. 2000); and Issaenko v. Univ. of
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`Minn., 57 F.Supp.3d 985, 1007–08 (D. Minn. 2014) (collecting a dozen cases)).
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`In Chavez v. Arte Publico Press, the Fifth Circuit stated that “Congress amended both the
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`Lanham Act and the Copyright Act and explicitly required states to submit to suit in federal court
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`for violation of their provisions.” 204 F.3d 601, 603 (5th Cir. 2000). However, the Fifth Circuit
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`considered whether, in light of College Savings, Florida Prepaid, and Kimel v. Fla. Bd. of Regents,
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`3 “Passage of these statutes were part of an effort by Congress to remedy imbalances between
`private and state institutions caused by the Eleventh Amendment sovereign immunity in
`trademark, copyright and patent law. All three statutes waive the state’s Eleventh Amendment
`immunity from liability for violations of federal trademark, copyright, and patent law.” Id.
`(internal citations omitted). 
`4 “Although neither the Supreme Court nor the Eighth Circuit has addressed the issue, all of the
`other courts to consider the question to date have concluded that Congress lacked a valid grant of
`constitutional authority to abrogate the states’ sovereign immunity under the CRCA.” Id., citing
`Jacobs v. Memphis Convention & Visitors Bureau, 710 F.Supp.2d 663, 674–82 (W.D.Tenn.2010);
`Mktg. Info. Masters, Inc. v. Bd. of Trs. of Cal. State Univ. Sys., 552 F.Supp.2d 1088, 1094–95
`(S.D.Cal. 2008); Coyle v. Univ. of Ky., 2 F.Supp.3d 1014, 1017–19 (E.D.Ky. 2014); Jehnsen v.
`N.Y. State Martin Luther King Jr., Inst. for Nonviolence, 13 F.Supp.2d 306, 310 (N.D.N.Y. 1998);
`Whipple v. Utah, Civ. No. 10–811, 2011 WL 4368568, at *20 (D.Utah Aug. 25, 2011); Romero v.
`Cal. Dep't of Transp., Civ. No. 08–8047, 2009 WL 650629, at *3–5 (C.D.Cal. Mar. 12, 2009);
`Nat'l Ass'n of Bds. of Pharmacy v. Bd. of Regents of Univ. Sys. of Ga., Civ. No. 07–084, 2008 WL
`1805439, at *16 (M.D.Ga. Apr. 18, 2008), affirmed in part, vacated in part on other grounds by
`633 F.3d 1297 (11th Cir.2011); InfoMath, Inc. v. Univ. of Ark., 633 F.Supp.2d 674, 679–80
`(E.D.Ark. 2007); De Romero v. Inst. of Puerto Rican Culture, 466 F.Supp.2d 410, 416–18 (D.P.R.
`2006); Hairston v. N.C. Agric. & Tech. State Univ., Civ. No. 04–1203, 2005 WL 2136923, at *8
`(M.D.N.C. Aug. 5, 2005); Salerno v. City Univ. of N.Y., 191 F.Supp.2d 352, 355–56 (S.D.N.Y.
`2001); Rainey v. Wayne State Univ., 26 F.Supp.2d 973, 976 (E.D.Mich.1998). 
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`Congress had authority to abrogate state sovereign immunity. Id. (internal citations omitted). The
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`Fifth Circuit found that Congress did not have the power to abrogate sovereign immunity and that
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`an action for copyright infringement against the University was barred by sovereign immunity. Id.
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`at 608. (considering the case on remand for reconsideration in light of Florida Prepaid
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`Postsecondary Educ. Expense Bd. v. College Savings Bank, 527 U.S. 627, 119 S.Ct. 2199, 144
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`L.Ed.2d 575 (1999) and College Savings Bank v. Florida Prepaid Postsecondary Educ. Expense
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`Bd., 527 U.S. 666, 119 S.Ct. 2219, 144 L.Ed.2d 605 (1999)).
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`Here, defendant, Citizens Memorial Hospital, is a public hospital organized under Chapter
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`206, R.S.Mo. 1994, “Hospital District Law.” See Johnson Controls, Inc. v. Citizens Mem'l Hosp.
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`Dist., 952 S.W.2d 791, 792 (Mo. Ct. App. 1997). Defendant claims it is therefore entitled to
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`sovereign immunity on Plaintiff’s claims for copyright infringement. While the law appears to
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`present a somewhat inequitable result, a review of the cases analyzing this issue leads the Court to
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`find that Plaintiff’s copyright claims are in fact barred by sovereign immunity. See InfoMath, Inc.
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`v. Univ. of Arkansas, 633 F. Supp. 2d 674, 679 (E.D. Ark. 2007) (citing additional courts who have
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`found sovereign immunity applies). As a result, Defendant’s Motion to Dismiss Plaintiff’s
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`copyright claims is granted.
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`II.
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`Plaintiff’s additional claims
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`Defendant also moves to dismiss Plaintiff’s additional claims arguing the statute of
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`limitations and/or the statute of frauds bar his breach of contract claim, and that Plaintiff has failed
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`to state a claim upon which relief can be granted with regard to any remaining claims. Plaintiff’s
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`allegations state that Plaintiff and CMH entered into a verbal contract in or around June of 2004
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`and that in or around June of 2004 Defendant breached that contract. While Plaintiff’s claims are
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`not entirely clear, Plaintiff specifically alleges that a verbal contract was entered into in 2004 and
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`that this same contract was breached in 2004. Plaintiff’s remaining claims all stem from state law
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`claims. The Court has dismissed Plaintiff’s federal copyright claim, as set forth herein, and as a
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`result declines to exercise supplemental jurisdiction over the remaining state law claims. See
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`Streambend Properties II, LLC v. Ivy Tower Minneapolis, LLC, 781 F.3d 1003, 1016–17 (8th Cir.
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`2015) (“When a district court dismisses federal claims over which it has original jurisdiction, the
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`balance of interests usually will point toward declining to exercise jurisdiction over the remaining
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`state law claims.”). As a result, the Court dismisses Plaintiff’s remaining claims, without prejudice
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`to the refiling of any such claims in state court. Id.
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`CONCLUSION
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`Wherefore, for the reasons stated herein, the Court hereby GRANTS Defendant’s Motion
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`to Dismiss. (Doc. 13). The Court ORDERS Plaintiff’s claims for Federal Copyright Infringement
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`are DISMISSED. The Court further ORDERS that Plaintiff’s remaining claims are DISMISSED
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`without prejudice as this Court no longer retains federal jurisdiction over those claims.
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`IT IS SO ORDERED.
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`Date: March 7, 2019
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`/s/ Douglas Harpool_____________
`DOUGLAS HARPOOL
`UNITED STATES DISTRICT JUDGE
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