Case 2:17-cv-02217-JMV-MF Document 17 Filed 06/29/18 Page 1 of 8 PageID: 123
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`UNITED STATES DISTRICT COURT
`DISTRICT OF NEW JERSEY
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`Civil Action No. 17-2217
`(JMV) (MF)
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`OPINION
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`Not for Publication
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`WALTER E. HALL,
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`Plaintiff
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`V.
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`REVOLT MEDIA & TV, LLC, RAHMAN
`DUKES, JOHN DOES 1-10, and ABC CORP. 1-
`10,
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`Defendants.
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`John Michael Vazguez, U.S.D.J.
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`This matter concerns allegations of breach of contract, unjust enrichment, and copyright
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`infringement. Plaintiff Walter Hall (“Plaintiff’) claims that he created music for Defendants’
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`television show but Defendants thereafler breached the parties’ agreement and infringed Plaintiffs
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`copyright. Currently pending before the Court is the motion of Defendants Revolt Media & TV,
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`LLC and Rahman Dukes (collectively, “Defendants”) to dismiss the Complaint. D.E. 10. The
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`Court reviewed the parties’ submissions’ and decided the motion without oral argument pursuant
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`to Fed. R. Civ. P.78(b) and L. Civ. R. 78.1(b). For the reasons set forth below, Defendants’ motion
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`to dismiss is GRANTED in part and DENIED in part.
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`‘The following briefs were submitted in connection with this motion: Defendants’ Brief, D.E. 10,
`(“Def. Br.”); Plaintiffs Opposition, D.E. 15, (“Opp.”); and Defendants’ Reply, D.E. 16, (“Reply
`Br.”).
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`Case 2:17-cv-02217-JMV-MF Document 17 Filed 06/29/18 Page 2 of 8 PageID: 124
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`I.
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`Factual Background & Procedural History
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`Plaintiff is a music producer who maintains a business in Hackensack, New Jersey. D.E.
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`1, Compi. at ¶ 1. Plaintiff has generated a number of original musical compositions.
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`Id. at ¶ 9.
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`Defendant Revolt Media (“Revolt”) is a limited liability company operating out of California. Id.
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`at ¶ 2. Defendant Raliman Dukes (“Dukes”) was the Vice President of Revolt at all relevant times.
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`Id. atJ3.
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`In August and September of 2013, Plaintiff provided Revolt with a number of original
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`songs.
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`Id. at ¶ 10. Later that year, Revolt began using one of the songs on its show “The Gate of
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`Revolt.” Id. at ¶ 11. Upon learning that Revolt was using the song, Plaintiff reached out to Dukes
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`in hopes of obtaining a contract that would govern Revolt’s use of the song. Id. at ¶ 12. Although
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`he initially responded positively to the idea, Dukes later informed Plaintiff that Revolt would be
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`unable to follow through with contract negotiations because its legal team had not yet been
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`assembled.
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`Id. at ¶J 13-14.
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`In response, Plaintiff forwarded Dukes a sample agreement.
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`Id. at ¶
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`15. Dukes ignored the proposed agreement and sent Plaintiff $700, advising Plaintiff that
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`additional payments would be made once an agreement was executed. Id. at ¶ 16; Ex. A-C to Def.
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`Br. Dukes also assured Plaintiffthat he would provide him with Revolt merchandise and additional
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`work. Compi. at ¶ 16. When several months passed with no word from Revolt, Plaintiff attempted
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`to contact Dukes about negotiating an agreement.
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`Id. at ¶ 17. However, Dukes ignored all of
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`Plaintiffs efforts while continuing to use the song on Revolt’s show through April of 2015. Id. at
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`¶ 17-18.
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`Plaintiff filed the Complaint on April 3, 2017. D.E. I. Plaintiffs Complaint contains three
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`counts: Count One for breach of contract/bad faith conduct; Count Two for unjust enrichment; and
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`Count Three for copyright infringement. Compl. at ¶ 8-28. Plaintiff seeks both monetary and
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`Case 2:17-cv-02217-JMV-MF Document 17 Filed 06/29/18 Page 3 of 8 PageID: 125
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`injunctive relief Id. at 6-7. Defendants filed the instant motion on October 16, 2017, D.E. 10,
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`which Plaintiff opposed, D.E. 15. Defendants submitted a reply on October 30, 2017. D.E. 16.
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`II.
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`Standard of Review
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`federal Rule of Civil Procedure 1 2(b)(6) permits a motion to dismiss when a complaint
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`fails “to state a claim upon which relief can be granted[.]” For a complaint to survive dismissal
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`under Rule 12(b)(6), it must contain sufficient factual matter to state a claim that is plausible on
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`its face. Ashcroft v. Iqbal, 556 U.S. 662, 67$ (2009) (quoting Belt Ati. Corp. V. Twombly, 550 U.S.
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`544, 570 (2007)). A claim is facially plausible “when the plaintiff pleads factual content that
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`allows the court to draw the reasonable inference that the defendant is liable for the misconduct
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`alleged.” Id. Further, a plaintiff must “allege sufficient facts to raise a reasonable expectation that
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`discovery will uncover proof of her claims.” Connetlv v. Lane Const. Coip., 809 F.3d 780, 789
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`(3d Cir. 2016).
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`In evaluating the sufficiency of a complaint, district courts must separate the
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`factual and legal elements. Fowler v. UPMC Shadyside, 57$ F.3d 203, 210-211 (3d Cir. 2009).
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`Restatements of the elements of a claim are legal conclusions, and therefore, not entitled to a
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`presumption of truth. Burtch v. Milberg Factors, Inc., 662 F.3d 212, 224 (3d Cir. 2011). The
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`court, however, “must accept all of the complaint’s well-pleaded facts as true.” Fowler, 578 f.3d
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`at 210. Even if plausibly pied, however, a complaint will not withstand a motion to dismiss if the
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`facts alleged do not state “a legally cognizable cause of action.” Turner v. IF. Morgan Chase &
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`Co., No. 14-7148, 2015 WL 12826480, at *2 (D.N.J. Jan. 23, 2015).
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`III.
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`Analysis
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`As an initial matter, Plaintiff argues that by relying on the invoice Plaintiff sent
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`to
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`Defendants, Ex. A-C to Def. Br., Defendants have effectively converted their motion to dismiss
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`into a motion for summary judgment. Opp. at 2. When a litigant relies on matters outside of the
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`pleadings, the motion is to be treated as a motion for summary judgment.
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`In Re Pension Benefit
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`Guar. Corp. v. White Consol. Inc/us., 99$ F.2d 1192, 1196 (3d Cir. 1993). However, a court may
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`review documents that are integral or explicitly relied upon in the complaint in evaluating a motion
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`to dismiss. Oliver v. Roquet, $58 F.3d 180, 190 (3d Cir. 2017). Here, the invoice is integral to the
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`Complaint because Plaintiff specifically relies on it to support his claim that a contract existed
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`between himself and Defendants. Compl. at ¶ 16. Thus, the Court can consider the invoice as part
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`of Defendants’ motion to dismiss. Additionally, even without the invoice, Plaintiff still does not
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`state a plausible cause of action as to Counts One and Three. Therefore, the Court will continue
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`to treat this motion as a motion to dismiss.
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`a.
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`Breach of Contract
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`To state a claim for breach of contract, a plaintiff must allege (1) the existence of the
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`contract; (2) breach of the contract; (3) damages as a result of the breach; and (4) that the plaintiff
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`performed its own duties under the contract.
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`faisti v. Energy Plus Holdings, LLC, 2012 WL
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`3535815, at *7 (D.N.J. Sept. 4, 2012). A contract exists when there was a meeting of the minds,
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`there was an offer and acceptance, there was consideration, and there was certainty in the terms of
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`the agreement. Allen v. Bloomingdale’s, Inc., 225 F.Supp.3d 254, 258 (D.N.J. Dec. 21, 2016).
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`Acceptance of a contract must be absolute and unequivocal. Kristensons Petroleum, Inc. v.
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`ExplorerMaritime Cruises, LLC, 2018 WL497070, at *6 (D.N.J. Jan 22, 2018). The consideration
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`must be a bargained-for exchange of promises or performances. Hackensack University Medical
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`Center v. Yinglian Xiao, 2018 WL 2095592, at *5 (D.N.J. May 7, 2018) (citing Restatement
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`(Second) of Contracts § 71(1981)). These required elements apply to both express and implied
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`contracts. Gardiner v. VI. Water & Power Attth., 145 F.3d 635, 644 (3d Cir. 1988). If the court
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`finds that the plaintiff sufficiently pleaded the existence of a contract, “[tjhe plaintiff must also
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`specifically identify portions of the contract that were allegedly breached.” Faisti, 2012 WL
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`3535815, at *7
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`Here, Plaintiffs breach of contract claim fails because he does not adequately plead the
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`existence of a contract or a breach thereof.
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`Instead, the Complaint alleges that the parties were
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`discussing the possibility of negotiating a contract but that one was never finalized. Compi. at ¶
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`12-17. For example, Plaintiff indicates that he “contacted Defendant Dukes to craft a contract,”
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`Id. at ¶ 12; that he sent Dukes a draft contract which was not executed, Id. at ¶J 15-16; and that
`“[a]fter several months without any movement by Revolt, the Plaintiff again attempted to contact
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`Dukes to work the terms of his agreement,” Id. at ¶ 17. The Complaint does not plausibly allege
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`that any contract was accepted by Defendants. The Complaint also fails to plausibly plead that the
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`alleged agreement had sufficiently certain tenus, such as the scope of Defendants’ use of the song
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`or the amount Plaintiff was to be paid. As a result, because there were no definitive terms, Plaintiff
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`fails to adequately identify specific portions of the alleged contract which were breached. The
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`Complaint alleges discussions of future contract negotiations rather than a final agreement.
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`Therefore, Plaintiff has failed to adequately plead the existence of a contract or a breach of that
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`contract.
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`For the foregoing reasons, the Court dismisses Plaintiffs breach of contract claim in Count
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`One.
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`b.
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`Breach of the Covenant of Good Faith & Fair Dealing
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`The implied covenant of good faith and fair dealing is a “component of every contract”
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`that requires both parties to a contract act
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`in “good faith[,]” that is, they must “adher[eJ to
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`‘community standards of decency, fairness, or reasonableness.” Iliadis v. Wa/-Mart Stores, Inc.,
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`191 N.J. 88, 109 (2007) (internal citations omitted). Good faith “requires a party to refrain from
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`‘destroying or injuring the right of the other party to receive its contractual benefits.” Id. at 110
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`(citation omitted). However, a necessary prerequisite is the existence of a valid contract. Where
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`a plaintiff fails to adequately allege the existence of a contract, plaintiff cannot allege that
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`defendant breached the covenant of good faith and fair dealing. Kenny v. Onward Search, 2015
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`WL 1799593, at *3 (D.N.J. Apr. 15, 2015).
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`Here, as discussed above, Plaintiff has not adequately alleged the existence of a contract
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`and thus the Court dismisses Count One as to the breach of the covenant of good faith and fair
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`dealing.2
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`c.
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`Promissory Estoppel
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`The Complaint does not assert a claim for promissory estoppel. Instead, Plaintiff raised it
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`for the first time in his Opposition. Opp. at 4. A plaintiff may not amend his complaint by way
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`of brief. Corn. OfPa. ex ret. Zimmerman v. PepsiCo, Inc., $36 F.2d 173, 181 (3d Cir. 1988).
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`If
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`Plaintiff wishes to bring a claim for promissory estoppel, he may include it in his Amended
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`Complaint.
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`d.
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`Unjust Enrichment
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`To state a claim for unjust enrichment, a plaintiff must allege “(1) that the defendant has
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`received a benefit from the plaintiff, and (2) that the retention of the benefit by the defendant is
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`inequitable.” Hassler v. Sovereign Bank, 644 F. Supp. 2d 509, 519 (D.N.J. 2009), aff’d, 374 F.
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`App’x 341 (3d Cir. 2010). A plaintiff must show that it expected “remuneration from defendant
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`2 Because the Court finds that the Complaint does not adequately plead a valid contract, the
`Court does not reach Defendants’ argument that the Complaint also fails to plausibly plead
`Defendants’ bad faith, which is necessary for a claim of the breach of the covenant of good faith
`and fair dealing. However, the Court notes that Defendants’ argument appears to have merit.
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`at the time it performed or conferred a benefit on defendant.” Yingst v. Novartis AG, 63 F.Supp.3d
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`412, 417 (D.N.J. Nov. 24, 2014).
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`Here, Defendants received a benefit from Plaintiff when they used Plaintiffs original song
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`on their show. Moreover, although it could have been alleged more clearly, the Complaint
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`sufficiently alleges that Plaintiff expected remuneration when he provided Defendants with his
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`original songs and that Defendants’
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`retention of the benefit without paying appropriate
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`compensation to Plaintiff would be inequitable. As a result, Defendants’ motion to dismiss Count
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`Two is denied.
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`e.
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`Copyright Infringement
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`To establish a copyright infringement claim, a plaintiff must establish (1) ownership of a
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`valid copyright; and (2) unauthorized copying of original elements of plaintiff s work. Kay Ber,y,
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`Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 203 (3d Cir. 2005). Registration of a copyright is required
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`before the copyright action may be brought in court. Granger v. Acme Abstract Co., 900 F.Supp.2d
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`419, 422 (D.N.J. 2012). Here, the Complaint does not allege that Plaintiff holds a registered
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`copyright; instead, he appended the copyright registration to his Opposition. See Ex. C to Opp.
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`As noted, Plaintiff cannot amend his Complaint through his brief. Cummings v. Princeton Univ,
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`2016 WL 6434561, at *5 (D.N.J. Oct. 31, 2016). The Complaint fails to plausibly allege that
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`Plaintiff owns a registered copyright. As a result, Count Three is dismissed.
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`IV.
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`Conclusion
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`For the reasons stated above, Defendants’ motion to dismiss is granted in part and denied in
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`part. Count Two, alleging unjust enrichment, remains. Counts One and Three are dismissed. The
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`dismissal is without prejudice and Plaintiff is granted leave to file an Amended Complaint.
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`Plaintiff has thirty (30) days to file an Amended Complaint, if he so chooses, consistent with this
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`Opinion. If Plaintiff fails to file an Amended Complaint, the dismissal of Counts One and Three
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`will be with prejudice. An appropriate Order accompanies this Opinion.
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`Dated: June 28, 2018
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`la%DJ.
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