Case 2:11-cv-00395-ES-SCM Document 94 Filed 06/26/13 Page 1 of 13 PageID: 1812
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`NOT FOR PUBLICATION
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`___________________________________
`GORDON LEVEY,
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`Plaintiff,
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`v.
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`BROWNSTONE INVESTMENT :
`GROUP, LLC, et al.,
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`Defendants.
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`___________________________________ :
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`SALAS, District Judge
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`I.
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`Introduction
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`Civil Action No.: 11-395 (ES)
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` OPINION
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`Pending before
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`the Court
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`is Defendants Brownstone Investment Group, LLC
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`(“Brownstone”), Douglas B. Lowey (“Lowey”), and Barret P. Naylor’s (“Naylor”) (collectively,
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`“Defendants”) motion to dismiss Plaintiff Gordon Levey’s (“Levey” or “Plaintiff”) Third
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`Amended Complaint (“TAC”) for lack of personal jurisdiction under Federal Rule of Civil
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`Procedure 12(b)(2), improper venue pursuant to Federal Rule of Civil Procedure 12(b)(3), and
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`for failing to state a claim upon which relief can be granted under Federal Rule of Civil
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`Procedure 12(b)(6). (D.E. No. 74). Also pending before this Court is Plaintiff’s motion to file a
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`sur-reply. (D.E. No. 85). The Court has considered the briefs submitted in support of and in
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`opposition to the present motions, and decides the motions without oral argument pursuant to
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`Federal Rule of Civil Procedure 78(b). For the reasons set forth below, the Court grants
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`Defendants’ motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and
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`Case 2:11-cv-00395-ES-SCM Document 94 Filed 06/26/13 Page 2 of 13 PageID: 1813
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`dismisses Plaintiff’s TAC with prejudice.1 The Court further denies Plaintiff’s motion for leave
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`to file a sur-reply.
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`II.
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`Jurisdiction
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`Plaintiff frames his TAC as a “violat[ion] of the United States Copyright Law, 17 U.S.C.
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`§ 101, et seq.” (D.E. No. 73, TAC ¶ 18). Accordingly, subject matter jurisdiction is proper
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`under 28 U.S.C. § 1338(a). See Zuk v. E. Pa. Psychiatric Inst. of the Med. College of Pa., 103
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`F.3d 294, 296 n.1 (3d Cir. 1996) (“The lawsuit . . . alleged violations of . . . federal copyright
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`law, and the district court thus had jurisdiction pursuant to 28 U.S.C. § 1338, which confers
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`exclusive original jurisdiction over copyright cases.”).
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`III. Background
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`As the Court writes solely for the parties who are thoroughly familiar with the underlying
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`issues relating to Defendants’ motion to dismiss, the Court limits its discussion to the salient
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`facts and procedural history.
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`This matter stems from an alleged violation of copyright law in which Plaintiff has now
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`had three opportunities to amend his complaint. (See D.E. Nos. 27, 56 & 73, respectively,
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`Amended Complaint, Second Amended Complaint (“SAC”) & TAC). This Court has issued two
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`opinions dismissing Plaintiff’s complaints for failure to state a prima facie case for copyright
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`infringement, Levey v. Brownstone Inv. Grp., LLC, No. 11-395, 2012 WL 295718 (D.N.J. Feb. 1,
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`2012), and for failure to allege a claim for copyright infringement that was not time barred, (D.E.
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`No. 71, Opinion, Sept. 14, 2012). In the latter opinion, this Court afforded Plaintiff “one last
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`1 Since this Court dismisses Plaintiff’s TAC for failure to state a claim upon which relief can be
`granted, it declines to address Defendants’ alternative arguments for dismissal. See JAKKS Pac.,
`Inc. v. Conte, No. 11-479, 2011 WL 6934856, at *1 n.2 (D.N.J. Dec. 30, 2011) (citation omitted)
`(“Since the Court dismisses Plaintiff’s Complaint for lack of personal jurisdiction, it declines to
`address Defendants’ alternative arguments, i.e., dismissal for improper venue as well as transfer
`for the convenience of the parties and witnesses.”).
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`opportunity to sufficiently plead a cause of action for copyright infringement because Plaintiff . .
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`. averred that Defendants’ illegal violation of our copyright laws continued today,”—the filing
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`date of the SAC. (Id. at 7 (citation omitted & internal quotation marks omitted)).
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`On September 24, 2012, Plaintiff filed his TAC. (D.E. No. 73). Plaintiff alleges that he
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`authored software referred to as “Levtek a/k/a Brownstone Live and Brownstone Trading
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`System” and that he provided an oral license to Brownstone as long as he was affiliated with
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`Brownstone. (TAC ¶ 8). Plaintiff asserts that he registered Levtek with the United States
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`Copyright Office on June 9, 2011. (Id. at ¶11 (citing Ex. A, Copyright Registration No.
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`TXU001759286 (“Levtek Registration”))). Plaintiff further alleges that Defendants used the
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`“copyright and software without Plaintiff’s knowledge or consent.” (Id. at ¶ 10).
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`Additionally, Plaintiff avers that he did not have access to information from January 2006
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`to the present “regarding the internal workings of Defendants[] or the use of the . . . copyrighted
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`materials . . . other than what was disclosed pursuant to Court Ordered Stipulation in an ongoing
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`Delaware Chancery Court [case]” and in litigation involving the Financial Industry Regulatory
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`Authority (“FINRA”). (Id. at ¶ 15). Plaintiff asserts that he had access to limited discovery over
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`the value of his ownership interest in the Delaware action. (Id.). In the FINRA litigation,
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`Plaintiff claims that he was not privy to information about the alleged copyright infringement
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`other than the representation that Defendants “had ceased all use of all software at issue.” (Id.).
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` Plaintiff now alleges that he first discovered that Defendants infringed on his copyright
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`at an industry convention in June 2011. (Id. at ¶ 16). Specifically, Plaintiff avers that he spoke
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`to Brian Lane (“Lane”)—a Sales Director for a company known as Codestreet—who made a
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`sales pitch on the Codestreet software system, which had some of the same capabilities that
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`Plaintiff’s software offered. (Id.). Plaintiff also alleges that Lane told him that “3-6 months
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`ago,” he met with John Sablowsky, a head trader at Brownstone, who said, “they had all of what
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`CodeStreet has to offer[] in a proprietary system that they have had for years and have been
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`using for years and years.” (Id.). Plaintiff asserts that the system that Sablowsky was referring to
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`is his system. (Id.).
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`Defendants’ motion to dismiss and Plaintiff’s motion for leave to file a sur-reply are now
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`ripe for this Court’s adjudication.
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`IV.
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`Legal Standard
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`Federal Rule of Civil Procedure 8(a)(2) requires a complaint to set forth “a short
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`and plain statement of the claim showing that a pleader is entitled to relief.” The pleading
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`standard announced by Rule 8 does not require detailed factual allegations; however, it does
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`demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft
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`v. Iqbal, 556 U.S. 662, 678 (2009) (internal citation omitted). In addition, the plaintiff’s short
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`and plain statement of the claim must “give the defendants fair notice of what the . . . claim is
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`and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007).
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`For a complaint to survive dismissal, it “must contain sufficient factual matter, accepted
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`as true, ‘to state a claim to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678 (citing
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`Twombly, 550 U.S. at 570). A claim has facial plausibility when “the plaintiff pleads factual
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`content that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Id. (internal citation omitted). “The plausibility standard is not akin to a
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`‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted
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`unlawfully.” Id.
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`In evaluating the sufficiency of a complaint, a court must accept all well-pleaded factual
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`allegations contained in the complaint as true and draw all reasonable inferences in favor of the
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`non-moving party. See Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008). But,
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`“the tenet that a court must accept as true all of the allegations contained in a complaint is
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`inapplicable to legal conclusions,” and “[a] pleading that offers ‘labels and conclusions’ or a
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`‘formulaic recitation of the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678
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`(quoting Twombly, 550 U.S. at 555).
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`Furthermore, a district court deciding a motion to dismiss generally does not consider
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`material beyond the pleadings. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1426
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`(3d Cir. 1997). “[When] deciding a Rule 12(b)(6) motion, a court must consider only the
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`complaint, exhibits attached [thereto], matters of the public record, as well as undisputedly
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`authentic documents if the complainant’s claims are based upon these documents.” Mayer v.
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`Belichick, 605 F.3d 223, 230 (3d Cir. 2011); see also In re Burlington Coat Factory Secs. Litig.,
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`114 F.3d at 1426 (“[A]n exception to the general rule is that a document integral to or explicitly
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`relied upon in the complaint may be considered without converting the motion [to dismiss] into
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`one for summary judgment.”) (emphasis in original) (citation omitted & internal quotation marks
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`omitted).
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`“[I]f a complaint is subject to a Rule 12(b)(6) dismissal, a district court must permit a
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`curative amendment unless such an amendment would be inequitable or futile.” Phillips, 515
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`F.3d at 245.
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`V.
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`Analysis
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`a. Request To File A Sur-reply Is Denied
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`As a preliminary matter, this Court must decide whether to allow Plaintiff to file a sur-
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`reply that seeks to submit an audio recording of a conversation between Plaintiff and Lane that
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`Plaintiff secretly recorded, as well as Lane’s sworn affidavit.2 (D.E. No. 85).
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`Sur-replies may not be submitted without the permission from the Court, and permission
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`is generally denied where the record and prior submissions are deemed sufficient. L. Civ. R.
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`7.1(d)(6). This district has allowed sur-replies to address a new issue in the “interest of
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`completeness,” for “complicated and novel legal questions,” or for unusual circumstances. See,
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`e.g., Christion v. Pressler & Pressler, LLP, No. 07-1938, 2010 WL 988547, at *2 n.3 (D.N.J.
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`Mar. 12, 2010); United States v. Lane Labs-USA, 324 F. Supp. 2d 547, 563 (D.N.J. 2004);
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`Arcand v. Brother Int’l Corp., 673 F. Supp. 2d 282, 290 (D.N.J. 2000). But, the Court may not
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`consider supplemental factual allegations that are submitted in opposition to a motion to dismiss
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`because such documents do not constitute pleadings under Rule 7(a). Pennsylvania ex. rel.
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`Zimmerman v. PepsiCo, Inc., 836 F.2d 173, 181 (3d Cir. 1988) (“It is axiomatic that the
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`complaint may not be amended by the briefs in opposition to a motion to dismiss.”); see also
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`McMahon v. Gen. Dynamics Corp., No. 12-4994, 2013 WL 1164850, at *13 (D.N.J. Mar. 30,
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`2013) (finding that court may not consider supplemental factual allegations made by Plaintiff in
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`a certification).
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`Here, Plaintiff seeks to amend his allegations in the TAC by submitting an audio
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`recording and non-party affidavit. This Court will not allow Plaintiff to amend his TAC in a sur-
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`2 This Court notes that Plaintiff filed another sur-reply on December 5, 2012, (D.E. No. 79),
`which this Court struck because Plaintiff filed same without leave of Court, (D.E. No. 83).
`Thereafter, Plaintiff filed a motion for leave to file a sur-reply on January 14, 2013. (D.E. No.
`84). Four days later, Plaintiff withdrew this motion and filed the instant motion for leave to file a
`sur-reply, claiming that he was now in possession of Lane’s sworn affidavit. (D.E. No. 85). On
`June 19, 2013, this Court terminated Plaintiff’s January 14, 2013, motion for leave to file a sur-
`reply as withdrawn. (D.E. No. 93).
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`reply. See Pennsylvania ex. rel. Zimmerman, 836 F.2d at 181.3 Accordingly, Plaintiff’s motion
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`for leave to file sur-reply is denied.
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`b. Copyright Infringement Claim Is Not Time Barred
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`The Court must now determine whether Plaintiff’s claim for copyright infringement is
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`time-barred. Defendants argue that Plaintiff has abandoned his claim that Defendants’ alleged
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`copyright infringement continues through today in the TAC. (D.E. No. 74-2, Memorandum of
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`Law in Support of Defendants’ Brief in Support of its Motion to Dismiss the TAC (“Def. Br.”)
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`7). Therefore, Defendants contend that Plaintiff fails to allege, even in general terms, the sole
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`basis that the Court provided leave to file a Third Amended Complaint. (Id. at 6-7).
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`The Copyright Act provides that “[n]o civil action shall be maintained under the
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`provisions of this title unless it is commenced within three years after the claim has accrued.” 17
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`U.S.C. § 507(b). A claim “accrues ‘when the plaintiff discovers, or with due diligence should
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`have discovered, the injury that forms the basis for the claim.’” William A. Graham Co. v.
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`Haughey, 568 F.3d 425, 438 (3d Cir. 2009) (quoting Disabled in Action v. SEPTA, 539 F.3d 199,
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`3 This Court further finds that Plaintiff’s sur-reply seeks to introduce additional factual
`allegations that are either duplicative or contrary to Plaintiff’s pled allegations. First, Plaintiff
`seeks to bolster his allegation concerning his conversation with Lane by submitting an audio
`recording of a telephone conversation that purportedly took place on December 3, 2012 in which
`Lane recalled a conversation that Plaintiff had with Lane at the 2011 convention. (D.E. No. 85,
`Memorandum of Law of Plaintiff Gordon Levey (“Sur-reply Br.”) 7). By Plaintiff’s own
`admission, this recording seeks to “confirm all facts alleged in the [TAC].” (Id.). Because this
`Court must accept Plaintiff’s factual allegations as true on a motion to dismiss, and this audio
`recording does not add any new facts to the allegation in paragraph 16 of the TAC, this Court is
`further convinced that it should not consider the audio recording. Second, this Court is
`perplexed as to why Plaintiff would seek to submit Lane’s sworn affidavit, which as Defendants
`point out, plainly contradicts Plaintiff’s core allegations in the TAC. (D.E. No. 87, Defendants’
`Brief in Response to Plaintiff’s Motion to File Sur-reply (“Defs. Sur-reply Br.”) 3-4). However,
`as this Court has already explained, Plaintiff is not permitted to amend his allegations by
`submitting an affidavit in opposition to the motion to dismiss. See Pennsylvania ex. rel.
`Zimmerman, 836 F.2d at 181.
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`209 (3d Cir. 2008)). “Applying that precept here, [this Court must] ask whether [the plaintiff]
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`should have known of the basis for [his] claim[] [, which] depends on whether [he] had sufficient
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`information of possible wrongdoing to place [him] on inquiry notice or to excite storm warnings
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`of culpable activity.” Id. (internal citation & quotation marks omitted).
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`In dismissing the SAC, the Court afforded Plaintiff one last opportunity to sufficiently
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`plead a cause of action for copyright infringement because Plaintiff averred that “[Defendants’]
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`illegal violation of our copyright laws continue through today.” (See D.E. No. 71 at 7 (citing
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`SAC ¶ 18)); see also William A. Graham Co., 568 F.3d at 433 (“[E]ach act of infringement is a
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`distinct harm giving rise to an independent claim for relief[.]”). In the operative complaint,
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`Plaintiff did not include his previous allegation that Defendants’ copyright infringement
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`continues through today, but instead, now avers that he did not have notice of possible copyright
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`violations until June 2011. 4 (TAC ¶¶ 16-17 (alleging “he was unaware of Defendants [sic] use
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`of said copyright software system, until the [June 2011] coincidental meeting at the aforesaid
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`Convention”)). Thus, this Court finds that Plaintiff’s claim is not time-barred as pled in his TAC
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`4 The Court recognizes that Plaintiff has taken inconsistent positions on when he first became
`aware of the alleged copyright infringement. On the one hand, Plaintiff brought his initial
`lawsuit on January 21, 2011. (D.E. No. 1). On the other hand, he now claims that he did not
`become aware of the alleged infringement until 5 months after he filed his complaint that
`purportedly gave rise to his claim—June 2011. (TAC ¶¶ 16-17). The Court further observes that
`Plaintiff previously alleged contradictory dates of when his claim accrued. In the SAC, Plaintiff
`alleged that he was put on notice of the alleged wrongdoing in January 2006 and in another
`paragraph in May 2008. (See D.E. No. 71 at 3 (citing SAC ¶¶ 10, 16)). But, the TAC supersedes
`the SAC, and the facts in the prior complaints no longer bind Plaintiff. See W. Run Student
`Hous. Assocs., LLC v. Huntington Nat’l Bank, 712 F.3d 165, 171-73 (3d Cir. 2013).
`Furthermore, in his brief, Plaintiff asserts that “Defendants’ copyright infringement continues to
`this day.” (Pl. Br. 4 (citing TAC ¶¶ 9-19)). However, Plaintiff misleads the Court because the
`allegations in ¶¶ 9-19 do not state that the infringement continues to this day. Again, this Court
`will not allow Plaintiff to amend his complaint by submitting new facts in opposition to the
`motion to dismiss. See Pennsylvania ex. rel. Zimmerman, 836 F.2d at 181.
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`because he alleges that he discovered the copyright infringement in June 2011, which date falls
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`within three years of the filing of the TAC on September 24, 2012.
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`c. The TAC Fails To State A Claim for Copyright Infringement
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`The Court now turns to whether Plaintiff states a valid claim for copyright infringement.
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`In support of their motion to dismiss, Defendants contend that Plaintiff fails to meet Rule 8’s
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`requirements. (Def. Br. 8). Defendants argue that Plaintiff fails to “allege any actual
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`infringement by Defendants” and, instead, “leaps to the conclusion that [Defendants are] using
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`Plaintiff’s alleged proprietary system because a non-party allegedly advised Plaintiff that
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`[Defendants’] purported unidentified system has similarities to a completely separate system
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`used by [the non-party].” (Id. at 8-9). By Plaintiff’s own admission, Defendants aver that
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`Plaintiff has no “information regarding the internal workings of Defendants, or the use of the
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`aforesaid copyrighted materials” and, therefore, cannot state a prima facie case. (Id. at 9).
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`Plaintiff argues that Defendants have conceded that Plaintiff satisfied the first three Gee
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`factors and that Defendants only take issue with the fourth factor, namely that he has “failed to
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`specify by what acts the Defendants infringed upon [his] copyright.” (D.E. No. 77,
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`Memorandum of Law of Plaintiff Gordon Levey (“Pl. Br.”) 6 (citing Gee v. CBS, Inc., 471 F.
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`Supp. 600, 643 (E.D. Pa.), aff’d, 612 F.3d 572 (3d Cir. 1979)).5 As to the fourth factor, Plaintiff
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`concedes that he “cannot provide further information in his copyright infringement claim,” but
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`that like the plaintiff in Leaf, Inc. v. Burdeen, No. 95-5959, 1996 WL 89070 (N.D. Ill. Feb. 28,
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`1996), Plaintiff contends that the motion to dismiss should be denied and he should be allowed
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`proper discovery. (Id. at 7-10).
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`5 Because Plaintiff’s brief does not include page numbers, this Court cites to the page number
`generated by the docket entry.
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`To state a claim for copyright infringement pursuant to Rule 8, a plaintiff must
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`adequately allege: (1) “which specific original work is the subject of the copyright claim,” (2)
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`“that plaintiff owns the copyright,” (3) “that the work in question has been registered in
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`compliance with the statute,” and (4) “by what acts and during what time defendant has infringed
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`the copyright.” Gee, 471 F. Supp. at 643; see also Bradshaw v. Am. Inst. For History Educ., No.
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`12-1367, 2013 WL 1007219, at *3 (D.N.J. Mar. 13, 2013); Hanover Arch. Serv., P.A. v.
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`Christian Testimony-Morris, N.P., No. 10-5455, 2011 WL 6002045, at *5 (D.N.J. Nov. 29,
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`2011); Fed. R. Civ. P. Form 19 (providing generic complaint for alleging copyright infringement
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`and including allegations that describe, inter alia, the specific infringing acts by the defendant).6
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`This Court is persuaded that Plaintiff’s allegations have failed to meet the minimal Rule 8
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`burden. Plaintiff sufficiently satisfies the first and second factors by alleging that he is the “sole
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`author” of his original software known as “Levtek a/k/a Brownstone Live and Brownstone
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`Trading System.” (TAC ¶ 8 (internal quotation marks omitted)). The Court also finds that
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`Plaintiff has satisfied the third factor by registering that copyright in compliance with the statute
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`6 This Court recognizes that other courts in this Circuit have held that to state a cause of action
`for copyright infringement, a Plaintiff must allege two factors: (1) ownership of the copyright,
`and (2) copying by the defendant. See Bradshaw, 2013 WL 1007219, at *3 (noting that
`ownership of the copyright has been pled by alleging facts that a certification of a registration
`has been obtained, and that copying by the defendant has been pled with facts that the defendant
`had access to the copyrighted work and that the two works bear substantial similarities).
`Recently, this district further explained in Bradshaw that: (1) these two broad factors
`nevertheless “entail certain specific pleading requirements” set forth in Gee; (2) “recent
`decisions from this Circuit have embraced Gee’s more detailed pleading standard;” and (3) that
`“this view finds further support in Form 19 of the Federal Rules of Civil Procedure.”
`Accordingly, this Court is persuaded that the more stringent standard in Gee applies to copyright
`infringement claims to be sufficient under Rule 8.
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`and attaching a copy of the “Levtek Trading System” copyright registration.7 (TAC ¶¶ 11-13,
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`Ex. A).
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`However, Plaintiff has not demonstrated by what specific acts and during what time
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`Defendants infringed the copyright. The Court agrees that Plaintiff’s allegation of infringement
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`rests on speculation: (1) Defendants’ “unnamed ‘proprietary system’ has some of the same
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`features as [non-party] Codestreet’s software system; (2) Plaintiff’s alleged copyrighted software
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`“has some of the same capabilities as Codestreet’s software system,” and (3) therefore,
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`Brownstone must be infringing upon Plaintiff’s purported copyrighted software. (D.E. No. 78,
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`Defendants’ Reply Brief in Support of its Motion to Dismiss the TAC (“Def. Reply Br.”) 4-5).
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`Plaintiff relies on one conversation that allegedly took place between him and a non-party in
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`which Plaintiff recalls that the non-party recounted a conversation with a Brownstone head trader
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`who purported said the Brownstone software had some features like the non-party’s software.
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`(TAC ¶ 16). Aside from this allegation, Plaintiff acknowledges that he “had no access to
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`information regarding the internal workings of Defendants, or the use of the aforesaid
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`copyrighted materials.” (Id. at ¶ 15). Indeed, Plaintiff admits that he offers nothing more and
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`requests discovery. (Pl. Br. 7-10).
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`7 Defendant argues that Plaintiff has not previously asserted a copyright infringement claim for
`the “Brownstone Trading System,” and that Plaintiff has not alleged that he registered the
`Brownstone Trading System or that Brownstone Trading System is a derivative work of Levtek.
`(Def. Br. 3 n.2). But, Plaintiff alleges that he was the legitimate author of “Levtek and
`Brownstone Live and/or Brownstone Trading System.” (TAC ¶ 10) (formatting altered &
`emphasis added); see also id. at ¶ 8 (stating “Levtek a/k/a Brownstone Live”) (internal quotation
`marks omitted). Additionally, citing to the Levtek registration, Plaintiff alleges that he has
`“legitimate authorship and copyright interest in certain software – Levtek and Brownstone Live
`and Brownstone Trading System and has registered that copyright.” (Id. at ¶ 13 (citing Ex. A)
`(formatting altered)). Viewing these facts in the light most favorable to Plaintiff and drawing all
`reasonable inferences in favor of Plaintiff, this Court will accept these allegations to purport that
`Brownstone Live and Brownstone Trading System are derivative works of the underlying
`copyrighted work, i.e., Levtek. (See D.E. No. 71 at 5 n.4).
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`Thus, Plaintiff’s factual and conclusory allegations do not “raise a right to relief above
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`the speculative level.” Twombly, 550 U.S. at 555; compare Stampone v. Stahl, No. 05-1921,
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`2005 WL 1694073, at *2 (D.N.J. July 19, 2005) (finding that alleging that “by not returning the
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`disk, [the defendant] was using it to steal and reproduce [the] plaintiff’s artwork,” the allegation
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`was “‘too broad and sweeping to satisfy Rule 8’” and the plaintiff failed to allege any specific
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`acts or times for infringement), with Bradshaw, 2013 WL 1007219, at *4 (stating that a bald
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`assertion was not enough to satisfy the final element, but where the complaint offered a
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`correlation chart that described the similarities between the items, it was just enough to allege
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`infringing acts). Plaintiff’s TAC is devoid of any factual allegations of how the software systems
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`are similar, much less any allegations of specific acts or times of infringement. Accordingly, the
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`Court is convinced that Plaintiff has not stated a plausible claim for copyright infringement.8
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`Because Plaintiff has now had four opportunities to draft a plausible claim for copyright
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`infringement, but has been unable to specify a single act of infringement by Defendants under
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`Rule 8’s pleading requirements, this Court will exercise its discretion in dismissing with
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`prejudice. See Barnard v. Verizon Commc'ns, Inc., 451 F. App'x 80, 87 (3d Cir. 2011), cert.
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`8 Even holding Plaintiff to the broader standard, Plaintiff has not alleged how the two software
`programs bear “substantial similarities” based on a vague conversation with a non-party. See
`Bradshaw, 2013 WL 1007219, at *3 (emphasis added); supra n.6 at 10. Without more detail,
`this Court cannot conclude that Plaintiff has stated a plausible claim. Additionally, the Court
`will deny Plaintiff’s request for discovery. See Obgin v. GE Money Bank, No. 10-5651, 2011
`WL 2436651, at *4 n.3 (D.N.J. Jun. 13, 2011) (“A plaintiff’s request for discovery cannot serve
`as a basis to deny a defendant’s motion to dismiss, as the filing of such a motion serves to protect
`a defendant from being subjected to discovery, during which a plaintiff hopes that facts will be
`unearthed to support plaintiff’s speculation.”); Giovanelli v. D. Simmons Gen. Contracting, No.
`09-1082, 2010 WL 988544, at *5 (D.N.J. 2010) (“Discovery . . . cannot serve as a fishing
`expedition through which plaintiff searches for evidence to support facts he has not yet
`pleaded.”). The Court need not distinguish Leaf, Inc., a case from a foreign jurisdiction, but will
`note that, there, the plaintiff was able to specifically plead enough facts on when the
`infringement occurred, how it occurred, and the amount of damages. 1996 WL 89070 at *1.
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`Case 2:11-cv-00395-ES-SCM Document 94 Filed 06/26/13 Page 13 of 13 PageID: 1824
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`denied, 132 S. Ct. 2107 (2012) (finding it was not an abuse of discretion to deny leave for a
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`curative amendment that would be futile where plaintiff “presented only claims that were well
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`below governing pleading standards” even after being granted two opportunities to file amended
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`complaints). Here, Plaintiff has not availed himself of the numerous opportunities to plead
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`sufficient facts to allege a plausible copyright infringement claim.
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`VI. Conclusion
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`For the foregoing reasons, Defendant’s motion to dismiss Plaintiff’s Third Amended
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`Complaint is granted with prejudice. An appropriate Order shall follow.
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`s/Esther Salas
`Esther Salas, U.S.D.J.
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`-13-