Case 1:14-cv-00965-KG-KK Document 71 Filed 06/30/16 Page 1 of 33
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE DISTRICT OF NEW MEXICO
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`TIZE W. CLARK, author, and
`BAU PUBLISHING GROUP,
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`Plaintiffs,
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`vs.
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`JAMES DASHNER, RANDOM
`HOUSE LLC, TWENTIETH CENTURY
`FOX, T.S. NOWLIN, NOAH OPPENHEIM,
`and GRANT PIERCE MYERS,
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`Civ. No. 14-00965 KG-KK
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`Defendants.
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`MEMORANDUM OPINION AND ORDER
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`This matter comes before the Court upon Motion to Dismiss by Defendant Twentieth
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`Century Fox Film Corporation (Motion to Dismiss), filed January 20, 2015. (Doc. 24).
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`Plaintiffs filed a response on February 20, 2015, and Defendants replied on March 13, 2015.
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`(Docs. 38 and 46). Having reviewed Defendant’s Motion to Dismiss, the accompanying briefs,
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`and the Complaint (Doc. 1), the Court grants the Motion to Dismiss.
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`I. The Complaint (Doc. 1)1
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`On October 24, 2014, Plaintiffs initiated this action against Defendants, alleging
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`infringement on Plaintiff Tize W. Clark’s (Plaintiff Clark) copyright of The Maze, a novel. In
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`2002, Plaintiff Clark obtained a copyright in his 2002 manuscript titled, The Maze, Registration
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`1 For purposes of resolving a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the Court must accept all well-pled
`facts as true. Accordingly, the Court has relied upon Plaintiffs’ Complaint in outlining the facts pertinent to this
`motion. The Court, however, need not accept Plaintiffs’ legal conclusions and conclusory statements in paragraphs
`18, 19, 20, 21, 52, 53, and 56 of the Complaint. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[T]he tenet that a
`court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions.
`Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.”).
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`Case 1:14-cv-00965-KG-KK Document 71 Filed 06/30/16 Page 2 of 33
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`Number TXu 1-069-309 (The Maze). (Doc. 1) at ¶¶ 12–13; see also (Doc. 22-1) at 2–3.2
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`Plaintiffs allege that the concept of The Maze—including the idea of a giant maze with moving
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`walls and robotic creatures—is Plaintiff Clark’s original work. Id. at ¶ 16. In 2004, Plaintiff
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`Clark published an original version of The Maze; and in June 2005, Plaintiff Bau Publishing
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`Group published The Maze with the International Standard Book Number (ISBN) 0-9766770-0-
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`8. Id. at ¶¶ 14, 25. Also in June 2005, Plaintiff entered into a book distribution and sale
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`agreement with Barnes & Noble, Inc. and various other booksellers. Id. at ¶ 15. That same
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`month, Plaintiff Clark mailed a letter and two (2) copies of The Maze to Defendant Twentieth
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`Century Fox Film (Defendant Fox). Id. at ¶ 49. In the letter, Plaintiff Clark requested that
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`Defendant Fox contract with him for the rights to make The Maze into a feature film. Id. At
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`some point in 2005, Defendant Fox declined Plaintiff Clark’s offer and returned one (1) copy of
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`The Maze to Plaintiff Clark. Id. at ¶¶ 50–51.
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`In 2006, Defendant James Dashner (Defendant Dashner) started writing The Maze
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`Runner. Id. at ¶ 17. In 2009, Defendant Dashner copyrighted The Maze Runner. Id. That same
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`year, Defendant Random House, L.L.C. (Defendant Random House) published The Maze
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`Runner. Id. On September 19, 2014, Defendant Fox released a feature film under the same title.
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`¶ 52.
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`In Count I, Plaintiffs state a copyright infringement claim pursuant to 17 U.S.C. §§ 101–
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`1332 against Defendants Dashner and Random House. Id. at ¶¶ 22–35. In Count II, Plaintiffs
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`seek injunctive relief for the alleged copyright infringement. Id. at ¶¶ 36–42. In Count III,
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`Plaintiffs bring a claim for unfair trade practices and unfair competition based on Defendant
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`Dashner’s and Defendant Random House’s publication, selling, and marketing of The Maze
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`2 Paragraphs twelve and thirteen of Plaintiffs’ Complaint are identical.
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`2
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`Runner without credit or royalties to Plaintiff Clark. Id. at ¶¶ 43–47. Finally, in Count IV,
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`Plaintiffs allege a copyright infringement claim pursuant to 17 U.S.C. §§ 101–1332 against
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`Defendant Fox for the screenplay of The Maze Runner. Id. at ¶¶ 48–56.
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`Defendant Fox now moves to dismiss Counts I, II, and IV under Fed. R. Civ. P. 12(b)(6),
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`with prejudice, for failure to state a claim upon which relief can be granted. To the extent that
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`Plaintiffs allege unfair trade practices and unfair competition, Defendant Fox also moves to
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`dismiss Count III with prejudice. Plaintiffs oppose Defendant Fox’s Motion to Dismiss in its
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`entirety.
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`II. Legal Standard
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`In ruling on a Rule 12(b)(6) motion to dismiss, the Court must accept all well-pleaded
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`allegations as true and must view them in the light most favorable to the plaintiff. See Zinermon
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`v. Burch, 494 U.S. 113, 118 (1990); Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984). Rule
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`12(b)(6) requires that a complaint set forth the grounds of a plaintiff's entitlement to relief
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`through more than labels, conclusions and a formulaic recitation of the elements of a cause of
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`action. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).
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`To survive a Rule 12(b)(6) motion to dismiss, a plaintiff must allege facts sufficient to
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`state a plausible claim of relief.3 Id. at 570. A claim is facially plausible if the plaintiff pleads
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`facts sufficient for the Court to reasonably infer that the defendant is liable for the alleged
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`misconduct. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).
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`“The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a
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`sheer possibility that a defendant has acted unlawfully.” Id. Granting a Rule 12(b)(6), however,
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`3 Notably, Plaintiffs contend the proper standard for a Rule 12(b)(6) motion is that the motion must be denied
`“unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
`entitle him to relief.” (Doc. 36) at 2 (citing Sutton v. Utah State Sch. for the Deaf & Blind, 173 F.3d 1226, 1236
`(10th Cir. 1999). In light of Twombly and its progeny, the Court will not entertain Plaintiffs’ proffered legal
`standard.
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`3
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`“is a harsh remedy which must be cautiously studied, not only to effectuate the spirit of the
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`liberal rules of pleading but also to protect the interests of justice.” Cayman Exploration Corp.
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`v. United Gas Pipe Line Co., 873 F.2d 1357, 1359 (10th Cir. 1989) (quotation omitted).
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`In evaluating a Rule 12(b)(6) motion, courts may also consider any attached exhibits,
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`documents incorporated by reference, and “documents referred to in the complaint if the
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`documents are central to the plaintiff’s claim and the parties do not dispute the documents’
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`authenticity.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (internal quotations
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`and citations omitted). And, “factual allegations that contradict . . . a properly considered
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`document are not well-pleaded facts that the court must accept as true.” GFF Corp. v. Assocd.
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`Wholesale Grocers, 130 F.3d 1381, 1385 (10th Cir. 1997).
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`III. Discussion4
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`Defendant Fox contends Plaintiffs’ copyright infringement claims (Count I and Count
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`IV) are subject to dismissal because a review of the parties’ works demonstrates insufficient
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`similarity of protectable expressions, and therefor, Plaintiffs’ injunctive relief demand (Count II)
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`also must be dismissed. Defendant Fox further contends Plaintiffs’ state law unfair trade
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`practices and unfair competition claims (Count III) are preempted by federal copyright law.
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`Defendant Fox also contends that Dastar Corporation v. Twentieth Century Fox Film
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`Corporation, 539 U.S. 23 (2003), bars Plaintiffs’ federal unfair competition claim (Count III).
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`Each contention will be discussed in turn.
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`A. Comparison of the 2002 Manuscript of The Maze (Docs. 22-1 and 22-2) and the film, The
`Maze Runner (Ex. C)
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`4 On June 30, 2016, the Court granted Defendant Dashner’s and Defendant Random Houses’ Motion to Dismiss.
`(Doc. 69). The parties’ arguments in the instant motion closely mirror the arguments addressed in (Doc. 69). As a
`result, this Memorandum Opinion and Order applies the same standards and relevant facts, with respect to the
`Complaint and The Maze manuscript. Further, in regard to this Memorandum Opinion and Order, the Court has
`conducted an independent analysis of the alleged infringed work, The Maze, and the alleged copied work, The Maze
`Runner film, in accordance with the applicable standard for copyright infringement in a Rule 12(b)(6) motion.
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`4
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`Plaintiffs argue preliminarily that in evaluating a Rule 12(b)(6) motion, the Court may
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`not review and compare the copyrighted and infringed work. Plaintiffs’ assertion is contrary to
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`well-established case law. First, the Court may consider any documents incorporated by
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`reference, and “documents referred to in the complaint if the documents are central to the
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`plaintiff’s claim and the parties do not dispute the documents’ authenticity.” Smith, 561 F.3d at
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`1098. Here, Plaintiffs attached excerpts of The Maze to the Complaint. See (Doc. 1-1); (Doc. 6).
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`Indeed, the Complaint references both works, which are paramount to Plaintiffs’ copyright
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`infringement claim. Moreover, Plaintiffs do not dispute the authenticity of the 2002 manuscript,
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`The Maze (Docs. 22-1 and 22-2), nor the film, The Maze Runner (Ex. C).5
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`Second, there is a dearth of jurisprudence in the context of a motion to dismiss where
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`courts have examined the copyrighted and infringed work to determine whether the works are
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`substantially similar. See Effie Film, LLC v. Murphy, 564 Fed. Appx. 631 (2d Cir. 2014); Wild v.
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`NBC Universal, 513 Fed. Appx. 640 (9th Cir. 2013) (citing Christianson v. West Pub. Co., 149
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`F.2d 202 (9th Cir. 1945)); Jacobsen v. Deseret Book Co., 287 F.3d 936 (10th Cir. 2002);
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`Tanikumi v. Walt Disney Co., 2015 WL 716429 (D.N.J. Feb. 19, 2015); Boston Copyright
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`Assocs., Lts. v. U-Haul Int’l, Inc., 2015 WL 666952 (D. Mass. Feb. 17, 2015) (citing Winstead v.
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`Jackson, 509 Fed. Appx. 139 (3d Cir. 2013) (“[W]here the works in question have been
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`submitted by the parties and are authentic, it is proper for the District Court to consider the
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`similarity between those works in connection with a motion to dismiss.”); Peter F. Gaito
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`Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57 (2d Cir. 2010); Nelson v. PRN Prods., Inc.,
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`5 Notably, Plaintiffs attached the alleged 2005 edition of The Maze to the response. See (Doc. 38-1). A review of
`(Doc. 38-1) does not indicate whether the proffered document is the actual 2005 edition. For instance, Plaintiffs did
`not attach the front matter section of the book, which includes the book’s title, the author’s name, and the copyright
`and publication information. Despite this issue, the Court has carefully read and compared the 2002 manuscript and
`the alleged 2005 edition. The Court finds that any discrepancies between the two editions are inconsequential to the
`disposition of the instant motion. The Court, thus, relies upon the undisputed authenticated copyrighted 2002
`manuscript for purposes of this motion.
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`5
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`873 F.2d 1141 (8th Cir. 1989)); Acker v. King, 46 F. Supp. 3d 168 (D. Conn. 2014); Dean v.
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`Cameron, 53 F. Supp. 3d 641 (S.D. N.Y. 2014); Harris v. Mattel Inc., 2013 WL 3154124 (E.D.
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`Okla. June 21, 2013). In light of this precedent, the Court will review and compare the
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`copyrighted 2002 manuscript of The Maze and the 2014 film, The Maze Runner.
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`B. Copyright Infringement (Count I & Count IV)
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`Defendant Fox first argues that Plaintiffs’ copyright infringement claim must fail because
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`Plaintiffs erroneously seek protection of unprotectable elements in The Maze, including the
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`“ideas and concepts” of mechanical/robotic creatures and a giant maze with moveable walls.
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`Defendant Fox further contends that Plaintiffs fail to state a claim for copyright infringement
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`because the film, The Maze Runner, is not substantially similar to Plaintiff Clark’s The Maze. In
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`support of its assertions, Defendant Fox submits the 2002 manuscript of The Maze (Docs. 22-1
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`and 22-2) and the 2014 Digital Versatile Disc of The Maze Runner (Ex. C).
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`A plaintiff must prove two elements to establish copyright infringement: “(1) ownership
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`of a valid copyright; and (2) copying of constituent elements of the work that are original.”
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`Blehm v. Jacobs, 702 F.3d 1193, 1199 (10th Cir. 2012) (internal quotation omitted). In this
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`matter, Defendants do not dispute the sufficiency of Plaintiffs’ pleadings as to the first element.
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`Hence, only the second element—copying—is at issue.
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`The copying element consists of two components. Id. (internal citation omitted). First, a
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`plaintiff must show a defendant copied the plaintiff’s work “as a factual matter.” Id. (internal
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`quotation omitted). Second, a plaintiff must demonstrate a “substantial similarity between the
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`allegedly infringing work and the elements of the copyrighted work that are legally protected.”
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`Id. (internal quotation omitted). This second component, “a question of law and fact,
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`determines whether a defendant’s factual copying constitutes actionable infringement.” Id.
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`6
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`Defendants do not raise an issue with the first component, thus, only substantial similarity is at
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`issue.
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`“To decide the substantial similarity issue, a court must determine (1) which elements of
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`the copyrighted work are protectable, and (2) whether these elements are substantially similar to
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`the accused work.” Savant Homes, Inc. c. Collins, 809 F.3d 1133, 1138 (10th Cir. 2016) (citing
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`Blehm, 702 F.3d at 1200). A court may address either step first. Id. (citing Gates Rubber Co. v.
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`Bando Chem. Indus., Ltd., 9 F.3d 823, 833 (10th Cir. 1993)).
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`(a) Protectable Elements
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`Section 102(a) of the Copyright Act protects “original works of authorship.” 17 U.S.C. §
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`102(a). “Originality exists where a ‘work was independently created by the author (as opposed
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`to copied from other works), and . . . it possesses at least some minimal degree of creativity.’”
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`Savant Homes, Inc., 809 F.3d at 1138–39 (citing Feist Publ’ns, Inc. v. Rural Telephone Serv.
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`Co., Inc., 499 U.S. 340, 345 (1991)). The requisite level of creativity is “extremely low; even a
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`slight amount will suffice. The vast majority of works make the grade quite easily, as they
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`possess some creative spark, no matter how crude, humble or obvious it might be.” Id. As a
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`result, the originality requirement separates protectable elements from unprotectable elements of
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`a copyrighted work. Id.
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`“In no case does copyright protection for an original work of authorship extend to any
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`idea . . . [or] concept . . . regardless of the form in which it is described, explained, illustrated, or
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`embodied in such work.” 17 U.S.C. § 102(b) (emphasis added). “This provision enshrines the
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`‘fundamental tenet’ that copyright ‘protection extends only to the author’s original expression
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`and not to the ideas embodied in that expression.’” Blehm, 702 F.3d at 1200 (quoting Gates
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`Rubber Co., 9 F.3d at 836). Significant to this case, under the “scenes a faire doctrine,”
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`copyright protection is denied to those expressions of idea “that are standard, stock, or common
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`to a particular topic, or that necessarily follow from a common theme or setting.” Gates Rubber
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`Co., 9 F.3d at 838.
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`In this matter, viewing the alleged facts as true and in the light most favorable to
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`Plaintiffs, the Court finds Plaintiffs have not sufficiently pled factual allegations to state a claim
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`of relief for copyright infringement. Plaintiffs allege the “concept” and “idea” of a giant maze
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`with moving walls and robotic creatures are original protectable “ideas.” See (Doc. 1) at ¶¶ 16,
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`19–20. Plaintiffs, however, do not have a monopoly on the idea of individuals and/or teenagers
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`attempting to escape a giant maze, but are consistently thwarted by formidable elements. Indeed
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`the theme of a complex and dangerous “maze” exists in Greek mythology.6 And the concept has
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`been revitalized in recent decades. See, e.g., J.K. ROWLING, HARRY POTTER AND THE GOBLET OF
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`FIRE (Scholastic 2000) (a maze tournament); UMBERTO ECO, NAME OF THE ROSE (Harcourt
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`1983) (murder mystery involving a labyrinth); URSULA K. LE GUIN, TOMBS OF ATUAN (London
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`Gollancz 1972) (“coming of age” female navigates a dark labyrinth). Put simply, Plaintiffs
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`cannot copyright the idea of a maze wherein occupants are challenged, tormented, and killed—
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`environments often central to the protagonist’s perseverance in science fiction, dystopian, and
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`horror genres.
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`Nor may Plaintiffs copyright the concept or idea of biomechanical creatures—imagery
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`and characters also prevalent in the science fiction, dystopian, and horror genres. See SCOTT
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`WESTERFELD, LEVIATHAN (THE LEVIATHAN TRILOGY) (Simon Pulse 2010) (airships made from
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`bioengineered creatures); SUZANNE COLLINS, HUNGER GAMES BOOK ONE (Scholastic Press
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`2009) (mutated mutts with metallic plates); PHILIP K. DICK, DO ANDROIDS DREAM OF ELECTRIC
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`6 See LABYRINTH, www.ancient.eu/Labyrinth (last visited June 14, 2016).
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`SHEEP? (Del Rey 1996) (bounty hunter tracks fugitive androids).7
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`Accordingly, the elements of a dangerous maze and robotic creatures are unprotectable
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`scenes a faire, as these elements often recur in science fiction, dystopian, and horror genres. The
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`Court, therefore, finds the Complaint lacks any allegations, beyond Plaintiffs’ conclusory
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`statement, that Defendant Fox infringed on Plaintiffs’ protectable expressions of a giant maze
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`and robotic creatures. Thus, Plaintiffs’ Count I and Count IV are subject to dismissal with
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`prejudice under Rule 12(b)(6). See Brereton v. Bountiful City Corp., 434 F.3d 1213, 1219 (10th
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`Cir. 2006) (“A dismissal with prejudice is appropriate where a complaint fails to state a claim
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`under Rule 12(b)(6) and granting leave to amend would be futile.”).
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`(b) Substantial Similarity
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`Assuming arguendo that Plaintiffs’ ideas and concepts are protectable, the Court finds
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`that Plaintiffs’ allegation of “substantial similarity” cannot be supported.
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`“Once a court has distinguished between unprotected ideas and protected expression in a
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`copyrighted work, it must determine whether the protected elements are substantially similar to
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`the accused work.” Blehm, 702 F.3d at 1202. The issue of substantial similarity is, ordinarily, a
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`question of fact. Jacobsen, 287 F.3d at 943. When both the infringing work and copyrighted
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`work are before the Court on a motion to dismiss, however, “the Court may consider the works
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`themselves and determine as a matter of law whether the allegation of substantial similarity can
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`be supported.” Harris, 2013 WL 3154124, at *3 (citing Peter F. Gaito Architecture, LLC, 602
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`F.3d at 63–64; Jacobsen, 287 F.3d at 941. “Substantial similarity exists when the accused work
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`is so similar to the plaintiff’s work that an ordinary reasonable person would conclude that the
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`7 See also ARTIFICIAL INTELLIGENCE —A TREND IN YOUNG ADULT SCIENCE FICTION,
`www.goodreads.com/list/show/22515.Artificial_Intelligence_A_Trend_In_Young_Adult_Science_Fiction (last
`visited June 14, 2016) (listing thirty-seven novels that incorporate “human-like cyborgs, androids, partial humans,
`engineered human-tissue slaves, robots, and humanoid life-forms”).
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`defendant unlawfully appropriated the plaintiff’s protectable expression by taking material of
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`substance and value.” Savant Homes, Inc., 809 F.3d at 1140. Furthermore, when assessing
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`substantial similarity between literary works, courts consider a variable list of characteristics,
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`including “plot, theme, dialogue, mood, setting, pace, characters, and sequence of events.” Shaw
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`v. Lindheim, 919 F.2d 1353, 1359 (9th Cir. 1990).
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`In accordance with the foregoing standard, the Court endeavors to compare The Maze and
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`the film The Maze Runner—in their entirety—in order to determine whether the allegation of
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`substantial similarity within the Complaint can be supported. See Jacobsen, 287 F.3d at 945–46
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`(comparing two literary works); Harris, 2013 WL 3154124, at *3 (comparing cover art).
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`(i) The Maze (Docs. 22-1 and 22-2)
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`The Maze begins with a prologue set on May 24, 1939, where Monroe Anton Xavier, also
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`known as “Max,” travels with his older brother Chris, and their parents from the Bronx to Coney
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`Island Amusement Park in Brooklyn, New York. After the family arrives at the amusement
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`park, Max reluctantly follows Chris into the Hall of Mirrors. Upon entering the Hall of Mirrors,
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`Chris abandons Max and taunts him throughout the maze. Max becomes fearful and Chris
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`attempts to help Max through the maze, but once again leaves Max behind by running through an
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`exit door. Chris, however, accidentally leaps “legs first” through a mirrored reflection of the exit
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`door. Max stands in horror as Chris’ spine is severed by a piece of glass and, shortly thereafter, a
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`section of the mirror falls and decapitates Chris. Due to the traumatic event, Max becomes the
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`“stone-hearted” head of a multi-billion dollar international conglomerate.
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`The remaining chapters are set in present day New Mexico and New York. The Maze
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`focuses on the story of Jay, Ramon, and Rob—three nineteen-year old males from Truchas, New
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`Mexico. Jay is a short, tentative, acne prone individual who is often bullied by Ramon and Rob.
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`Rob is athletic, vain, and cocky. Ramon is hot-headed and extremely poor. The three men see a
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`television advertisement promoting a multi-billion dollar bequest from Max to anyone who can
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`make it through his maze. Confident that they can succeed because they grew up navigating the
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`mountainous maze-like terrain of Truchas, they enter the contest. The catch, the three men must
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`travel to New York in order to participate in Max’s maze. The men prepare for their impending
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`travel and celebrate their potential fortune at the Torching of Zazobra in Santa Fe, New Mexico.
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`During the event, Rob and Ramon ditch Jay. Feeling despondent, Jay throws a wish into the
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`burning Zazobra ashes. Subsequently, Zazobra’s head falls at Jay’s feet, smiles, and spits out a
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`burnt piece of paper at Jay. Jay grabs the piece of paper and quickly runs away into the night.
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`The following day, the three men embark on their trip to New York. The boys travel to
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`the airport by limousine. During the ride, Rob has a very vivid nightmare about a boy with
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`“razor sharp broken teeth” breaking and biting his arm off. When the men land in New York,
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`they realize they need further instructions to travel from the airport to the maze. Waiting outside
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`the airport for instructions, a man approaches the three men and retrieves a wallet from the front
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`zipper of his pants. He throws the wallet at Ramon. When they open the wallet, the men
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`discover a note directing them to an underground train station for the “D” train.
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`When the men finally arrive at the “D” train platform, they must once again await further
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`instructions. After the train arrives, a tremendously obese man approaches Rob. The man begins
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`to reach into his pocket when dozens of cockroaches start scattering from the man’s pocket, up
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`his arm, and onto his face. Releasing a hideous laugh similar to the boy from Rob’s nightmare,
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`the man places a note covered in maggots and roaches in front of Rob. Ramon, in Rob’s
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`defense, strikes the man with a stick, causing millions of maggots to fall from the man’s clothes.
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`Suddenly, the man leaps in front of an oncoming train. Upon impact, the man’s body implodes
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`releasing “hundreds of rats and bugs drenched in blood.” After the ensuing pandemonium, Rob
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`notices the final instructions to the maze.
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`The final note directs the three men to enter the train tunnel, “take thirteen large steps,”
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`turn right, and follow a “fifteen-foot hallway” to a large black door. After debating whether to
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`withdraw from the maze, the men follow the directions. They arrive at the door and Rob opens
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`the door and “thousands of rats pour out” into the hallway. The men attempt to escape the rats
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`by retreating to the tunnel; however, the hallway is now mysteriously enclosed. The room fills
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`quickly with rats and the men panic. Abruptly, a wall rises exposing a hidden room. As the wall
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`rises a strong gust of wind blows the rats in the opposite direction. Once free of the rats, “the
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`platform” below the men ascends rapidly. Realizing the platform may collide with the ceiling,
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`the men lie on their backs and place their feet on the ceiling to stop the impending collision.
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`Finally, the ceiling splits in two like a bridge. A welcoming committee cheers, “Welcome to the
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`Maze!” and the men notice they are in an office.
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`Three of Max’s employees give the men a tour of the business complex. After the men
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`eat, a hostess directs Jay, Rob, and Ramon into a dark room where five other individuals are
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`sitting. Jay, Rob, and Ramon learn that the five individuals are also maze contestants. Ramon,
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`shortly thereafter, gets into an altercation with tall, bald headed, “dark brown skin” contestant,
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`Kevin Johnston. A hostess informs the contestants that fighting before the maze will result in
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`immediate disqualification; and the disqualified contestant will be “injected with a chemical that
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`will cause” the contestant to “forget [his/her] trip to the maze.” The hostess then verifies that the
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`contestants are of legal age and introduces the remaining contestants: a “young lady” named
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`Kenya Harris; a “young lady” named Kisha Grant and her dog Mr. Shakes; Sean Levan; and
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`Ricky Harris, Kenya’s younger brother. After introductions, the contestants are required to sign
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`Case 1:14-cv-00965-KG-KK Document 71 Filed 06/30/16 Page 13 of 33
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`contracts stating that M.A.X. Enterprises is not responsible for any injuries, death, or accidental
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`death within the maze.
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`The hostess informs the eight contestants that they may enter the maze through the door
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`on the opposite side of the wall. All the contestants enter the first room of the maze, which is
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`empty. The contestants discover another door, which leads to another empty room. After
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`walking through three empty rooms, the contestants enter a room of mirrors that smells like “the
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`sweet aroma of candy flavored popcorn,” and notice a sign stating hall of mirrors “in an old
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`amusement park lettering style.” Unable to find an exit, the contestants attempt to backtrack to
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`the prior room. The door, however, slams shut and is covered by a mirrored wall. Frustrated,
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`Kevin and Ramon get into an altercation. Kevin throws Ramon through several mirrored walls
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`revealing a hidden room that smells like rotten corpses.
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`The new room is a dark and steamy stairwell with steel gated floors. And the railings are
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`covered in strips of human flesh and blood. Kisha ends up separating from the group. The group
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`attempts to follow Kisha, but the walls shift and isolate Kisha from the group. The group
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`continues their journey down the stairs, into a corridor, and up another stair case. The staircase
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`leads the group to a beautiful full size flower garden that resembles the “Botanical Garden in the
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`Bronx.” Quickly, the room divulges its true function as a graveyard for the prior contestants and
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`eight new burial plots. Frightened, they flee the graveyard through an opening in a gate. As the
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`contestants walk through the maze the walls raise and switch from left to right exposing a variety
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`of walls: brick walls, solid steel beams, wallpapered walls, and walls covered in picture frames.
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`Soon, the contestants come upon another flight of stairs covered in powder pink carpeting
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`and emitting a baby powder odor. While the contestants climb the stairs, Sean notices a ray of
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`light coming through a door in the opposite direction of the stairs. Thinking it is an exit, Sean
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`runs through the door. The door slams shut and is replaced by a wall of steel beams. The silence
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`is filled by Sean’s “[t]errifying screams” and the “loud snapping” of his bones. Once Sean’s
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`screams subside, a rumbling noise starts and Sean’s remains are tossed over the wall and onto
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`Jay.
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`Kisha, still separated from the group, also enters a room that smells like baby powder and
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`is covered in powder pink carpeting. Kisha discovers an abandoned baby in the room and
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`immediately consoles the baby and attempts to breastfeed the baby. After Kisha is unable to
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`produce milk, the baby screams profanities and its mouth mutates into “huge oversized teeth”
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`that protrude like “fangs.” The baby mauls Kisha’s chest and, eventually, eats her whole.
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`The remaining six contestants, hearing Kisha’s screams, stay huddled close together. The
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`maze, nonetheless, transforms again placing the contestants in a bright room where they are
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`showered with blood. In a panic, the contestants run up a flight of stairs, which begin to rise like
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`it is “elevating them to a new level.” The staircase abruptly ceases and a door is revealed at the
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`bottom. The new room displays brick walls with large metal linked dog chains. After hearing
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`dogs growl and bark, the group quickly ascends the stairs once again. The maze, however, shifts
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`and a wall opens revealing massive pit bulls. As the group frantically runs up the staircase,
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`Kenya is pushed over the edge of the maze where she lands on a transparent platform. The
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`group carefully descends to the platform to assist Kenya. Despite their assistance, Kenya refuses
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`to move. Kevin attempts to jump over her and falls straight down landing feet first into the
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`motor of the maze.
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`After they watch Kevin die, the five constants follow the transparent floor to an open
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`door. Once in the new room, Jay and Rob notice Ricky disappeared. Kenya explains that her
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`brother is a womanizer and selfish. The four of them decide to continue without Ricky. As they
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`Case 1:14-cv-00965-KG-KK Document 71 Filed 06/30/16 Page 15 of 33
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`start walking through the maze, the walls continue to shift. Eventually, another wall shifts
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`revealing a staircase to a lower level. When they start to descend they notice the cannibal baby
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`at the bottom of the stairs and run in the opposite direction. The staircase, surprisingly, rotates,
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`flips, and places the contestants in another room.
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`This new room displays beautiful art, including Michelangelo’s David and the ceiling of
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`the Sistine Chapel. The room also includes a two way mirror into another room. Kenya, Jay,
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`Rob, and Ramon watch as Ricky enters the room and encounters a beautiful and frightened
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`woman. After Ricky consoles the woman, she and Ricky engage in intercourse. The woman,
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`however, is a robotic creature that pulverizes Ricky’s entire body through her vagina and then
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`throws up his remains. In shock from witnessing her brother’s death, Kenya rushes out of the
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`room before the entryway closes. Jay, Rob, and Ramon start to look for an exit when
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`Michelangelo’s Da