Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
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`ROBERT SCOTT,
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`-against-
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`Plaintiff,
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`WORLDSTARHIPHOP, INC.;
`BERKELEY COLLEGE,
`Defendants.
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`P. KEVIN CASTEL, District Judge:
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` 10 Civ. 9538 (PKC)(RLE)
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` MEMORANDUM
` AND ORDER
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`Plaintiff Robert Scott, proceeding pro se, brings this action against defendants
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`WorldStarHipHop, Inc., (“WorldStar”) and Berkeley College (“Berkeley”). Defendant Berkeley
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`moves to dismiss the claims asserted against it for failure to state a claim upon which relief may
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`be granted. Reading plaintiff’s Amended Complaint generously, it asserts the following three
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`federal claims against Berkeley: gender discrimination in an education program, pursuant to 20
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`U.S.C. § 1681; retaliation for filing a complaint alleging gender discrimination, pursuant to 20
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`U.S.C. § 1681; and copyright infringement, pursuant to 17 U.S.C. § 501. The Amended
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`Complaint also asserts state law claims against Berkeley for invasion of privacy and negligent
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`infliction of emotional distress. For the reasons set forth below, Berkeley’s motion is granted as
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`to the federal claims, and this Court declines to exercise supplemental jurisdiction over the state
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`law claims.
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`THE AMENDED COMPLAINT
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` Plaintiff’s Amended Complaint arises from a classroom brawl. On November
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`18, 2010, plaintiff was involved in an “altercation” with his ex-girlfriend, Lakesha Hickmon, and
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`his then-current girlfriend, Danielle Pattillo, during a class at Berkeley. (Am. Compl. ¶ 14.)
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 2 of 17
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`The altercation began as an assault by Ms. Hickmon on Ms. Pattillo, in which plaintiff intervened
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`to “break [it] up” in order to “defend and protect” Ms. Pattillo from Ms. Hickmon’s attack. (Am.
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`Compl. ¶ 20.) Another student in the class, Mr. Omar Seymour, video-recorded part of the
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`altercation on his mobile phone. (Am. Compl. ¶ 14.) The video, which is annexed to the
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`Amended Complaint and properly considered on this motion, shows plaintiff, Ms. Hickmon and
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`Ms. Pattillo fighting at the back of a classroom. (Am. Compl. Ex. F.) The two females grapple
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`with each other, falling to the ground and then ending up against a wall in what may be described
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`as a fighter’s embrace. (Id.) During this, plaintiff punches one of the females about five times.
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`(Id.)
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`On the day of the fight, Berkeley “expelled pro tempore until further notice” all
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`three participants in the fight. (Am. Compl. ¶ 16.) On the same day, Mr. Seymour posted the
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`video on a platform for distribution to other students known as “Blackboard.” (Am. Compl. ¶ 14)
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`In the words of the Amended Complaint, Mr. Seymour “published [the fight video] pursuant to
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`17 U.S.C. § 101 by distributing copies of the work to a group of the defendant, Berkeley, Jane
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`Doe and John Doe students via Blackboard Services, etc., for further distribution to the
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`Defendant, WorldStar HipHop, Inc.” (Id.) The next day, the video appeared on a website owned
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`and operated by defendant WorldStar, “worldstarhiphop.com.” (Am. Compl. ¶¶ 3, 14.) That
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`day, plaintiff received a phone call from the Dean of Student Development and Campus Life,
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`Anamaria Cobo De Paci. (Am. Compl. ¶ 17.) Dean Cobo De Paci told plaintiff that “because of
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`the video that has been produced, it doesn’t look good on my [sic] part” and that none of the
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`participants would be allowed back into Berkeley until the end of the investigation into the fight.
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`(Id.) Dean Cobo De Paci asked plaintiff to send her a written report about the incident. (Id.)
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`Plaintiff submitted a written report on November 20, explaining that he reasonably believed it
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 3 of 17
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`was necessary to “protect [his] girlfriend Ms. Pattillo from the physical assault by Ms. Hickmon
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`as the crowd jeered and encouraged such violence.” (Am. Compl. Ex. G.)
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`Around the same time, Dean Cobo De Paci met in person with Ms. Hickmon and
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`Ms. Pattillo and interviewed four witnesses to the altercation. (Am. Compl. Ex. H.) Based on
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`these conversations, Dean Cobo De Paci concluded that Ms. Pattillo was “a victim of self
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`defense after Ms. Hickmon hit her first;” that Ms. Hickmon hit Ms. Pattillo because “Mr. Scott
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`included Ms. Patillo [sic] comments into the conversation and the verbage [sic] was offensive;”
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`and that “the situation was elevated by Mr. Scott,” who could have prevented it from moving
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`forward, but who instead “began beating up Ms. Hickmon and throwing her on the floor.” (Id.)
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`Therefore, she “[did] not recommend that Mr. Scott return to Berkeley due to his public
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`disorderly conduct and harassment against Ms. Hickmon.” (Id.) However, she “strongly
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`recommend[ed] that both women return to campus on Monday 11/29” and that they be provided
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`with a counselor and a mediator. (Id.)
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`At this point, plaintiff began to complain that he was being treated differently
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`from the women involved in the altercation based on his gender. In a series of emails to Dean
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`Cobo De Paci beginning on November 28, he complained that Ms. Hickmon and Ms. Pattillo
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`were allowed to return to school while he was not; he requested an explanation and made
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`attempts to set a meeting time with the Dean. (Am. Compl. ¶¶ 23-29 and Ex. I.) Dean Cobo
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`De Paci offered as explanation that “each individual involved in the incident is treated as a
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`separate case,” and suggested a meeting time on November 30. (Id.) Apparently no meeting
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`took place on November 30; instead, on that day, plaintiff filed an “affirmative action complaint”
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`with Berkeley against Dean Cobo De Paci. (Am. Compl. ¶ 30 and Ex. J.) That afternoon, Dean
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`Cobo De Paci telephoned plaintiff and told him that he was expelled. (Am. Compl. ¶ 32.)
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 4 of 17
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`Later the same day, plaintiff filed a verified complaint with New York State
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`Division of Human Rights (“NYSDHR”) alleging sex discrimination by Berkeley. (Am. Compl.
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`Ex. P.) On January 19, 2011, the NYSDHR dismissed the complaint, concluding: “[a]fter
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`gathering all the evidence, [Berkeley] exercised its discretion and expelled the complainant for
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`his egregious behavior, which he acknowledged.” (Id.)
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`Separately, plaintiff purchased all rights in the fight video from Mr. Seymour and
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`registered his copyright with the United States Copyright Office. (Am. Compl. ¶ 35 and Exs. A,
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`L.) Thereafter, plaintiff sent letters to both Berkeley and WorldStar demanding, among other
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`things, that they cease and desist from any infringing uses of the fight video. (Am. Compl. Exs.
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`M, O.) However, WorldStar continued to make the video available on its website. (Am. Compl.
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`¶ 38). The Amended Complaint also alleges that Berkeley, “acting through its counsel Mr.
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`David. F. Bayne . . . . downloaded a copy [from the WorldStar website] . . . and distributed the
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`work through its blackboard network and the law offices of Kavanah Maloney & Osnato LLP.”
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`(Am. Compl. ¶ 39.) Similarly, on December 14, Berkeley downloaded a copy of the fight video
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`and attached it to Berkeley’s verified answer to plaintiff’s NYSDHR complaint. (Am. Compl. ¶
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`41.)
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`Subsequently, plaintiff commenced this action, and thereafter Berkeley moved to
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`dismiss the original complaint on April 18, 2011 (Docket # 15), after first providing the plaintiff
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`and the Court with a pre-motion letter outlining the basis of the motion (Docket # 14). In
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`apparent reliance on Fed. R. Civ. P. 15(a)(1)(B), plaintiff filed an Amended Complaint on May
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`24, 2011. (Docket # 26.)1 Berkeley outlined the proposed basis for the motion addressed to the
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`Amended Complaint in a letter to the Court, and the Court set a schedule on the motion. (Docket
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`1 A second motion to dismiss the Amended Complaint appearing on the docket (docket # 37) is a duplicate of this
`motion.
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 5 of 17
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`# 28.) Berkeley has served plaintiff with the notice required by Rule 12.1 of the Local Civil
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`Rules. (Docket # 33).
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`DISCUSSION
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`I.
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`Motion to Dismiss Pursuant to Rule 12(b)(6)
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`To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), “a
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`complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
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`plausible on its face.’” Aschcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp.
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`v. Twombly, 550 U.S. 544, 570 (2007). In assessing a compliant, courts draws all reasonable
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`inferences in favor of the plaintiffs. See In re Elevator Antitrust Litig., 502 F.3d 47, 50 (2d Cir.
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`2007). And, in the case of pro se plaintiffs, courts give a liberal and generous construction to the
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`pleadings, interpreting them “to raise the strongest arguments that they suggest.” Triestman v.
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`Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006).
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`The Supreme Court has cautioned against the imposition of heightened pleading
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`standards in specific areas of law, particularly in discrimination claims. See Swierkiewicz v.
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`Sorema N.A., 534 US. 506 (2002) (holding that imposing a “heightened pleading standard in
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`employment discrimination cases conflicts with” the Federal Rules); see also Fed. R. Civ. P.
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`(8)(a)(2) (2011) (requiring only “a short and plain statement of the claim showing that the
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`pleader is entitled to relief.”) The Court’s more recent cases interpreting Rule 12(b)(6) have
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`agreed with Swierkiewicz that a heightened pleading standard is impermissible in discrimination
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`cases—or anywhere else. See Twombly, 550 U.S. at 569-70 (citing Swierkiewicz for proposition
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`that "a heightened pleading requirement," requiring the pleading of "specific facts beyond those
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`necessary to state [a] claim and the grounds showing entitlement to relief," is
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`"impermissibl[e],"); Iqbal, 129 S.Ct at 1953 (holding that Twombly announced the standard for
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 6 of 17
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`all civil actions); see also Arista Records LLC v. Doe, 604 F.3d 110, 119-121 (2d Cir. 2010)
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`(finding Swierkiewicz, Twombly, and Iqbal in agreement).
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`However, while the Court has reaffirmed that there are no heightened pleading
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`standards, it has also emphasized that every complaint must state a claim for relief that is
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`“plausible” not just “conceivable.” Twombly, 550 U.S. at 570. That is to say, “[w]here a
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`complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the
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`line between possibility and plausibility of entitlement to relief.” Iqbal, 129 S.Ct. at 1949
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`(quoting Twombly, 550 U.S. at 557) (internal quotations omitted). Because the mere
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`“possibility” of misconduct is not enough, facts that show parallel action but not an agreement to
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`conspire are insufficient to state an antitrust violation, Twombly, 550 U.S. at 566, and facts that
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`show detention of religious and racial minorities but not any discriminatory intent are
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`insufficient to state a violation of the First or Fifth Amendments, Iqbal, 129 S.Ct at 1952. As the
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`foregoing suggests, the focus of the inquiry is on the factual allegations in a complaint, not on a
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`complaint’s legal conclusions. Legal conclusions are not entitled to any assumption of truth. Id.
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`at 1950. A court should examine only the well-pleaded factual allegations, if any, “and then
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`determine whether they plausibly give rise to an entitlement to relief.” Id. If not, the complaint
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`should be dismissed.
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`In assessing the complaint, a court may “consider documents incorporated by
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`reference or attached to the complaint as exhibits, documents the plaintiff knew of or possessed
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`and relied upon in framing the complaint, and items of which judicial notice maybe taken.”
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`Samuels v. Air Transp. Local 504, 992 F.2d 12, 15 (2d Cir. 1993). Here, plaintiff has annexed
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`relevant documents and emails and a video of a key portion of the central event in the case—the
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`fight in the classroom. These materials are properly considered on the motion.
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`Plaintiff Fails to State a Claim for Gender Discrimination.
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`II.
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`Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-88, provides,
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`in relevant part, that “[n]o person in the United States shall, on the basis of sex, be excluded from
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`participation in, be denied the benefits of, or be subjected to discrimination under any education
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`program or activity receiving federal funds.” 20 U.S.C. § 1681(a). Title IX is enforceable
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`through an implied private right action, Cannon v. Univ. of Chi., 441 U.S. 667 (1979), for
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`monetary damages as well as injunctive relief, Franklin v. Gwinnett Cnty. Pub. Sch., 503 U.S. 60
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`(1992).
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`In Yusuf v. Vassar Coll., the Second Circuit recognized two categories of claims
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`of gender bias in university discipline: claims of an erroneous outcome from a flawed proceeding
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`and claims of selective enforcement. 35 F.3d 709, 714-16 (2d. Cir. 1994). In the former case, a
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`party asserts that he or she was innocent and wrongly found to have committed the offense; in
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`the latter case, a party asserts that, regardless of guilt, the severity of the penalty was affected by
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`the student’s gender. Id. Read generously, plaintiff’s complaint alleges both types of
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`discriminatory discipline recognized in Yusuf. Plaintiff’s statement that his “egregious behavior
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`. . . did not provide the Defendant . . . with a rational basis to subject the plaintiff . . . to different
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`rules of behavior, sanctions and treatment” (Am. Compl. ¶ 28), could fairly mean either that
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`Berkeley erroneously declared him guilty of worse misconduct than the women involved in the
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`fight (flawed outcome), or that Berkeley unfairly subjected him to uniquely severe discipline for
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`the same offense as the women in the fight (selective enforcement).
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`However, while a plaintiff may plead that he or she is in both categories, “in
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`neither case do wholly conclusory allegations suffice for the purposes of Rule 12(b)(6).” Yusuf,
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`35 F.3d at 715. Therefore, when a plaintiff claims a flawed outcome, a plaintiff must allege
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`“particular facts sufficient to cast some articulable doubt on the accuracy of the outcome” and
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`“particular circumstances suggesting that gender bias was a motivating factor behind the
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`erroneous finding.” Id. Likewise, when a plaintiff claims selective enforcement, a plaintiff must
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`allege particular circumstances suggesting meaningful inconsistency in punishment, see id. at
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`716 (affirming dismissal of plaintiff’s selective enforcement claim when facts could not show
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`inconsistent punishment of similarly situated students), and particular circumstances suggesting
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`that gender bias was a motivating factor behind the inconsistency, id. at 715 (wholly conclusory
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`allegations insufficient). For the reasons stated below, plaintiff fails to allege facts sufficient to
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`meet either standard.
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`a.
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`The Flawed-Outcome Claim
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`To state a flawed-outcome claim, plaintiff must allege facts casting “articulable
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`doubt” on the accuracy of the proceeding and circumstances suggesting “gender bias was a
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`motivating factor behind the erroneous finding.” Id. Yousef notes that the burden of pleading a
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`procedural flaw affecting outcome is not heavy but it also cautions that:
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`“[A]llegations of a procedurally or otherwise flawed proceeding that has
`led to an adverse and erroneous outcome combined with a conclusory
`allegation of gender discrimination is not sufficient to survive a motion to
`dismiss. The fatal gap is, again, the lack of a particularized allegation
`relating to a causal connection between the flawed outcome and gender
`bias. A plaintiff must thus also allege particular circumstances suggesting
`that gender bias was a motivating factor behind the erroneous finding.
`Allegations of a causal connection in the case of university disciplinary
`cases can be of the kind that are found in the familiar setting of Title VII
`cases . . . . Such allegations might include, inter alia, statements by
`members of the disciplinary tribunal, statements by pertinent university
`officials, or patterns of decision-making that also tend to show the
`influence of gender. Of course, some allegations, such as statements
`reflecting bias by members of the tribunal, may suffice both to cast doubt
`on the accuracy of the disciplinary adjudication and to relate the error to
`gender bias.”
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`Id. at 715.
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`Plaintiff alleges that the procedures were flawed, but the facts alleged undermine
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`the claim. Also, there is no nonconclusory allegation of gender bias. The Amended Complaint
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`alleges that plaintiff met with Dean Cobo De Paci on October 29, 2010, at which time she
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`scheduled plaintiff to meet a counselor, a male, “to discuss the situation that . . . [he] was having
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`between his ex-girlfriend and current girlfriend.” (Am Compl. ¶ 11.) He met with the counselor
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`on November 1 and had a second appointment scheduled for November 12 which the plaintiff
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`needed to reschedule. (Id. ¶ 12.) The fight took place on November 18 before he saw the
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`counselor again. (Id. ¶ 14.) Immediately after the fight, all three students were “expelled pro
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`tempore” by Ms. Kristine Rowe, the “Campus Operating Officer.” (Id. ¶ 15.)
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`After the fight, Dean Cobo De Paci reviewed the video. (Id. ¶ 17.) As noted, the
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`video was included as an exhibit to the Amended Complaint and is properly considered on the
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`motion to dismiss. It shows plaintiff withdrawing and cocking his arm and then delivering
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`multiple (about 5 or more) blows to the body of one of the females in rapid succession. The
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`females appear to be locked in a fighter’s embrace. The video does not show either female
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`throwing a punch at anyone. Based upon the degree of force utilized by plaintiff, which Dean
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`Cobo de Paci saw on the video, it was not unreasonable for her to telephone plaintiff, as she did,
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`and request that plaintiff place his position in writing. While listening to the position of a party
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`in a face-to-face session is one way to learn an individual’s position, there is neither a flaw nor
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`anything that bespeaks of discriminatory animus in having the person who threw the most blows
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`state his position in writing—and not reenter the campus. Nor is it flawed or suggestive of
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`discriminatory animus to have those who displayed less violence in the video present their
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`positions in person. The Dean took the position that “each individual involved is treated as a
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`separate case.” (Am. Compl. Ex. I)
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`Plaintiff’s written report to the Dean is characterized in the body of the Amended
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`Complaint as describing his conduct as “not appropriate, but justified.” (Am. Compl. ¶ 20.) But
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`the actual report does not contain any admission that the conduct was inappropriate; it does
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`purport to justify the actions and merely describes the event as “unfortunate.” (Am. Compl. Ex.
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`G.) There is no expression of remorse in plaintiff’s written submission to the Dean. Just as there
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`was nothing to suggest either flaw or bias in taking plaintiff’s statement in writing, there is
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`nothing in plaintiff’s written statement to suggest either flaw or bias in making plaintiff’s
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`expulsion permanent.
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`Plaintiff has failed to allege facts which, if believed, would reflect gender bias.
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`At bottom, he asserts that there were three participants in the fight, the other two were female,
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`and the females received lesser punishment. The lesser participants told their story orally and the
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`only person who was known to have thrown multiple punches was permitted to make his
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`statement in writing. The Amended Complaint fails to account for the difference in kind and
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`character of the actions observed by Dean Cobo De Paci on the video. Beyond legal labels and
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`conclusions, he alleges no facts that would give rise to an inference of discriminatory animus.
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`b.
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`The Selective-Enforcement Claim
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`For the same reason that the flawed-outcome claim fails, so too does the selective-
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`enforcement claim. To state a claim for selective enforcement, plaintiff must allege particular
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`circumstances suggesting a meaningful inconsistency in punishment and particular
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`circumstances suggesting that gender bias was a motivating factor behind the inconsistency. See
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`Yusuf, 35 F.3d at 715-716. But there is no inconsistency in punishing worse behavior with
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`harsher discipline. Again, the Amended Complaint fails to account for the difference in kind and
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`character of the actions observed by Dean Cobo De Paci on the video. For reasons other than
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`gender, plaintiff was not similarly situated to the other two participants, and therefore the
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`selective-enforcement claim fails.
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`III.
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`Plaintiff Fails to State a Claim for Retaliation under Title IX.
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`Plaintiff also fails to state a plausible claim of retaliation for filing a sex-
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`discrimination complaint. “[R]etaliation against individuals because they complain of sex
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`discrimination is ‘intentional discrimination that violates the clear terms of [Title IX].’” Jackson
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`v. Birmingham Bd. of Educ., 544 U.S. 167, 183 (2005) (quoting Davis v. Monroe Cnty. Bd. of
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`Educ., 526 U.S. 629, 642 (1999). As with complaints of other types gender discrimination, a
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`retaliation complaint “[need] not contain specific facts establishing a prima facie case of
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`discrimination,” Swierkiewicz, 534 U.S. at 506 (Title VII claim), “but only enough facts to state
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`a claim to relief that is plausible on its face,” Twombly, 550 U.S. at 570. However, a plaintiff
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`may not premise a claim of retaliation on an adverse action that the pleadings show was decided
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`upon before the plaintiff engaged in the protected acts. See Murray v. New York Univ. Coll. of
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`Dentistry, 57 F.3d 243, 251 (2d. Cir. 1995) (holding that allegations that a school failed to alter a
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`disciplinary decision after a student introduced a sexual harassment claim were “insufficient as a
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`matter of law to support an inference of discriminatory motivation”).
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`In this case, plaintiff alleges that he filed an “affirmative action complaint”
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`against Dean Cobo de Paci with Berkeley on the morning of November 30, 2011, and that Dean
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`Cobo de Paci retaliated by expelling him permanently, via a telephone call, on the same
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`afternoon. (Am. Compl. ¶¶ 30, 32). But plaintiff also supplies an internal email dated
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`November 26, 2010, four days before plaintiff filed his complaint, from Dean Cobo De Paci to
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`Edwin Hughes, in which the dean recommends that plaintiff not be allowed to return to
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`Berkeley. (Am. Compl. Ex. H.) Because Dean Cobo De Paci had already decided plaintiff
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`should be expelled by the time plaintiff filed his complaint, and because the Amended Complaint
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`alleges that the retaliatory actions of Berkeley were by and through the Dean, plaintiff has failed
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`to plausibly allege that the Dean’s decision was taken in retaliation for the filing of the
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`complaint. Therefore, plaintiff fails to state a claim for retaliation in violation of 20 U.S.C. §
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`1681.
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`IV.
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`Plaintiff Fails to State a Claim for
`Copyright Infringement against Berkeley.
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`The Copyright Act, 17 U.S.C. § 101 et seq., grants to copyright holders the
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`exclusive rights to, inter alia, display, reproduce, and distribute their works, 17 U.S.C. § 106,
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`and creates a cause of action for infringements of those rights, 17 U.S.C. § 501. Read
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`generously, plaintiff’s complaint alleges two infringements on his exclusive rights: first,
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`Berkeley downloaded the fight video, distributed it within its counsel’s law firm, and attached it
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`as an exhibit in defense against plaintiff’s NYSDHR complaint (the “legal defense use”); second,
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`Berkeley downloaded from the WorldStar site and distributed the fight video through its
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`“blackboard network” (the “Blackboard use”). (Compl. ¶¶ 39, 41 and Ex. O.) As detailed
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`below, these claims fail for the following reasons: the legal defense use is fair use protected by
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`statute, and the Blackboard use is supported by conclusory allegations not entitled to
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`presumption of truth.
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`a.
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`The Legal Defense Use
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`The fair use doctrine permits others to reproduce copyrighted works for approved
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`purposes such as criticism, reporting, and education. See 17 U.S.C. § 107. The statute’s list of
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`fair uses is only exemplary; the statute announces a non-exhaustive four-factor test for
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`determining whether a use is a fair use in any given case: “[T]he factors to be considered shall
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`include -- (1) the purpose and character of the use, including whether such use is of a commercial
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`nature or is for nonprofit educational purposes; (2) the nature of the copyrighted work; (3) the
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`amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
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`(4) the effect of the use upon the potential market for or value of the copyrighted work.” Id.
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`These factors are not treated in isolation; "all are to be explored, and the results weighed
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`together, in light of the purposes of copyright." Campbell v. Acuff-Rose Music, Inc., 510 U.S.
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`569, 577-78 (1994). Using this analysis, courts have repeatedly held that the reproduction of
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`copyrighted works as evidence in litigation is fair use. See Jartech, Inc. v. Clancy, 666 F.2d 403,
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`406-07 (9th Cir. 1982); Den Hollander v. Swindells-Donovan, No. 08-Civ-4045 (FB) (LB), 2010
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`U.S. Dist. LEXIS 22309, *8-12 (E.D.N.Y. March 11, 2010), aff’d sub nom. Hollander v.
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`Steinberg, 419 Fed. Appx. 44 (2d Cir. 2011); see also H.R. Rep. No. 94-1476, at 19 (1976)
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`(contemplating as fair use “reproduction of a work in legislative or judicial proceedings or
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`reports”); 4 M. Nimmer & D. Nimmer, Nimmer on Copyright § 13.05[D] (2011) (“[I]t seems
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`inconceivable that any court would hold such reproduction to constitute infringement either by
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`the government or by the individual parties responsible for offering the work in evidence.")
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`In this case, Berkeley relied on the video of the classroom fight in deciding on the
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`discipline to be imposed upon plaintiff. (Compl. ¶ 18 and Ex. H.) Thereafter, plaintiff alleged
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`before the NYSDHR that the expulsion was based on gender. (Compl. Ex. P.) Berkeley attached
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`the video to its answer “to demonstrate that [it] had a legitimate, nondiscriminatory reason for
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`how it treated the plaintiff.” (Compl. ¶ 41.) Finally, plaintiff, having lately obtained copyright
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`of the video from its author for $1, claimed that Berkeley’s submission of the video—to defend
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`against plaintiff’s complaint—was copyright infringement. (Compl. ¶¶ 33, 39-41 and Ex. L.) In
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`the language of the four-factor test, then, this was (1) a limited, defensive, noncommercial use
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`prompted by plaintiff’s commencement of litigation; (2) the work itself is a real-time video of an
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 14 of 17
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`unchoreographed fight in one of Berkeley’s classrooms; (3) the entire video was used; (4) and
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`the submission to the NYSDHR could not affect the market for the video, if any. Of these four
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`factors, the only one that could favor plaintiff is the third—the portion used—because Berkeley
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`submitted the entire video. However, the proper inquiry is whether the portion used was
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`“reasonable in relation to the purpose of the copying.” Campbell 510 U.S. at 586. Here, using
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`the whole video was reasonable, because the video comprises little more than the fight, and
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`plaintiff’s behavior during the fight was important to Berkeley’s decision to expel plaintiff.
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`More importantly, taken as a whole, the facts and factors demonstrate that the use was a
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`circumscribed, noncommercial use necessitated by plaintiff’s actions. Under such
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`circumstances, the use was fair use within the meaning of 17 U.S.C. § 107.
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` Fair use is an affirmative defense, see Campbell, 510 U.S. at 590, and is therefore
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`not normally an appropriate grounds for dismissing a claim on a Rule 12(b)(6) motion.
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`However, the Second Circuit has held that “[a]n affirmative defense may be raised by a pre-
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`answer motion to dismiss under Rule 12(b)(6), without resort to summary judgment procedure, if
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`the defense appears on the face of the complaint.” Pani v. Empire Blue Cross Blue Shield, 152
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`F.3d 67, 74 (2d Cir. 1998). For the reasons discussed above, the defense of fair use appears on
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`the face of plaintiff’s Amended Complaint. Therefore, plaintiff fails to state a claim of
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`infringement for the legal defense use of the fight video.
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`b.
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`The Blackboard Use
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`Plaintiff also fails to a state a claim of infringement for the Blackboard use.
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`Plaintiff supports this claim of infringement only with conclusory allegations. Although a court
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`must assume the veracity of “well-pleaded factual allegations” when reviewing a motion to
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`dismiss, Iqbal, 129 S.Ct at 1950, a court is not “bound to accept conclusory allegations,” Rolon
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 15 of 17
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`v. Henneman, 517 F.3d 140, 149 (2d Cir. 2008) (Sotomayor, J.) (internal quotations omitted).
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`As applied to a claim of copyright infringement, this means “it is axiomatic that plaintiff’s claims
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`cannot rest on inchoate and conclusory accusations of unauthorized copying.” Broughel
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`v.Battery Conservancy, No. 07-Civ-7755 (GBD), 2009 U.S. Dist. LEXIS 35048 (S.D.N.Y. Mar.
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`30, 2009) (dismissing infringement claims against defendant websites because plaintiff failed to
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`allege any specific infringing acts).
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`The entirety of plaintiff’s remaining allegation of copyright infringement is that
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`“from on or about December 4, 2010, to on or about December 16, 2010, Defendant, Berkeley,
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`acting through its counsel Mr. David F. Bayne, from the law offices of Kavanagh Maloney &
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`Osnato LLP” downloaded a copy of the fight video from worldstarhiphop.com and “distributed
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`the work through its blackboard network and [his law firm].” (Compl. ¶ 39.) As conclusory as
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`this allegation is on its face, it can be further trimmed. First, distribution within the law firm is
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`attributable to the fair use of defending against plaintiff’s NYSDHR complaint. Second, to the
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`degree distribution through the “blackboard network” means posting of the video on a site
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`viewable to authorized users, this allegation is irreconcilable with plaintiff’s other allegation that
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`Mr. Seymour was responsible for publishing the work by “distributing copies of the work . . . via
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`Blackboard Services” on November 18, 2010 (Compl. ¶ 14). If the video was posted on
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`Blackboard—if such posting is possible on Blackboard—the Amended Complaint alleges that it
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`is traceable to Mr. Seymour. The remaining allegation is the bare recitation that, from the day
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`that plaintiff obtained copyright up to the day plaintiff filed his first complaint, Berkeley
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`downloaded and distributed the work. This conclusory allegation is not entitled to a presumption
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`of truth and does not account for any fair use of the video for the purposes outlined above.
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`Therefore, plaintiff’s Blackboard use claim fails as well.
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`Case 1:10-cv-09538-PKC-RLE Document 46 Filed 10/25/11 Page 16 of 17
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`V.
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`This Court Declines to Exercise Supplemental
`Jurisdiction over Plaintiff’s State Law Claims
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`Section 1367 of title 28 of the United States Code governs the exercise of
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`supplemental jurisdiction and states in relevant part:
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`[I]n any civil acti