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Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 1 of 12
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`UNITED STATES DISTRICT COURT
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`SOUTHERN DISTRICT OF NEW YORK
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`RED APPLE MEI
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`Plaintiff,
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`22-cv-07547 (JSR)
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`OPINION AND ORDER
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`HN BATCHELOR, UNION RIVER
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`ESS,
`INC., AUDIOBLOOM LTD.,
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`(| WEISS AGENCY INC., and
`EKATHER COHEN,
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`Defendant
`
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`cy ealED S. RAKOFF, U.S.D.Jd.:
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`Plaintiff Red Apple Media,
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`Inc.
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`(“Red Apple”) alleges it owns
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`exclusive rights to the John Batchelor Show -- a news podcast hosted
`
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`by defendant John Batchelor -- and that, notwithstanding Red Apple's
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`exclusive ownership, Batchelor and the other defendants copied and
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`broadcast the show’s content after the podcast was discontinued for a
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`new radio show. Verified Complaint
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`(“Compl.”) @9 1-55, Dkt. 1-1. For
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`this, Red Apple sued Batchelor and the other defendants here named in
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`New York State court, alleging breach of contract, unjust enrichment,
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`conversion, and other claims purportedly arising under New York state
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`law. Compl. QI 56-138.
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` Defendant Audiobloom Limited (“Audiobloom”), with the consent
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`of the other defendants,
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`removed the case from state to federal court
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`under 28 U.S.C. §§ 1441(c) and 1454 on the basis that many or all of
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`Batchelor’s claims actually arise under, and are preempted by, Section
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`301i (a) of the Copyright Act. See Notice of Removal FF 8-15, Dkt. 1.
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 2 of 12
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`Red Apple now moves to remand the case to state court pursuant
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`to 28
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`U.S.C.
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`§ 1447(c). For
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`the reasons explained below,
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`the Court denies
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`plaintiff’s motion to remand.
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`I.
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`Legal Standard
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` Defendants may remove to federal court “any civil action brought
`
`in a State court of which the district courts of
`
`the United States
`
`
`have original
`jurisdiction.
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`.
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`.
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`.” 28 U.S.C.
`
`§ 1441(a). Congress has
`
`also provided more specifically that any “civil action in which any
`
`party asserts a claim for relief arising under” federal copyright law
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`may be removed to the United States district court “embracing the
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`place where the action is pending.” Id. § 1454(a).
`
`Here, as noted, Red Apple’s claims purport
`
`to arise under state
`
`law, not
`
`the federal Copyright Act or any other
`
`federal statute.
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`Although defendants might intend to raise a federal preemption defense
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`to these state-law claims,
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`that expectation alone would not ordinarily
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`
`
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`suffice to establish federal question jurisdiction where no federal
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`issue appears on the face of plaintiff’s complaint. See Louisville &
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`Nashville R.R. Co. v. Mottley, 211 U.S. 149, 154 (1908).
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`However, copyright is one of a handful of areas where -- at least
`
`in the Second Circuit -- Congress is considered to have “completely
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`preempted” analogous state-law claims, meaning that “the preemptive
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`force of
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`federal
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`law [in this area]
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`is so extraordinary that
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`it
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`converts an ordinary state common-law complaint
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`into one stating a
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`federal
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`claim for purposes of
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`the well-pleaded complaint
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`rule.”
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`Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 3 of 12
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`Cir 2004). Because the Copyright Act “both preempts state law and
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`substitutes
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`a
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`federal
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`remedy for
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`that
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`law,
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`thereby creating an
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`exclusive federal cause of action...
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`[i]t therefore follows that
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`the district courts have jurisdiction over state law claims preempted
`
`by the Copyright Act.” Id. The Court
`
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`therefore has federal question
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`jurisdiction over any of Red Apple’s nominally state-law claims that
`
`are in fact completely preempted by federal copyright
`
`law.
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`Although Red Apple argues that
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`the case as
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`a whole should be
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`remanded,
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`its legal memorandum appears at
`
`times to contemplate that
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`specific claims as to which this Court may not have federal question
`
`jurisdiction should be remanded to state court. See Pls. Mem. Supp.
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`Mot. Remand (“Pls. Mem.”) at 7-19. But both of the removal statutes
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`relied on by defendants, as well as the remand provision relied on by
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`Red Apple, authorize the removal
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`(or
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`remand) of entire cases, not
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`claims. See 28 U.S.C.
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`§§ 1441(a), 1454(a), 1447(c). As a result,
`a
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`so
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`long as federal question exists over a “single claim,”
`
`removal of the
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`entire case is proper. Broder v. Cablevision Sys. Corp., 418 F.3d 187,
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`194 (2d Cir. 2005).
`
`Although Red Apple does not cite it,
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`there is
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`a
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`statutory
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`mechanism that authorizes a federal court to sever and remand to state
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`court individual claims even where removal of the case was proper. See
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`28 U.S.C.
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`§ 1441(c). However,
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`that statute applies by its terms only
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`where certain claims
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`fall outside both the Court’s “original or
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`supplemental jurisdiction.” Id. Supplemental jurisdiction exists “over
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`all other claims that are so related to claims in the action within
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 4 of 12
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`such original
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`jurisdiction that
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`they form part of the same case or
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`controversy.
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`.
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`.
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`.” 28 U.S.C.
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`§ 1367(a). As such, while 28 U.S.C.
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`§
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`1441 (c) might authorize the severance and remand of state-law claims
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`that are totally unrelated to federal-law claims brought
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`in the same
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`suit, here all of Red Apple’s complaints against the various defendants
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`involve the same common core of facts,
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`relating to Batchelor’s and
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`other defendants’ alleged use of
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`intellectual property belonging to
`
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`Red Apple. See generally Compl. As such,
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`to the extent federal question
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`jurisdiction exists over
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`any of Red Apple’s claims,
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`supplemental
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`jurisdiction attaches to any remaining claims, and 28 U.S.C. § 1441 (c)
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`does not apply.
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`It
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`is true that
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`in the event
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`the Court has
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`federal question
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`jurisdiction over
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`some but not all of Red Apple’s claims and those
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`-claims are promptly dismissed because
`they are preempted,
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`the Court
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`would have no obligation to exercise supplemental
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`jurisdiction over
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`any remaining state law claims. See 28 U.S.C.
`
`§ 1367(c)
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`(laying out
`
`considerations
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`for courts
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`to consider
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`in determining whether
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`to
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`exercise supplemental
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`jurisdiction); Marcus v. AT&T Corp.,
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`138 F.3d
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`46, 57
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`(2d Cir. 1998).
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`In that event,
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`the Court would have discretion
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`to choose whether to exercise jurisdiction over any remaining state
`
`law claims, dismiss them, or remand them to the state court
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`in which
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`they were originally brought. See Carnegie-Mellon Univ. v. Cohill, 484
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`U.S. 343, 356-57 (1988)
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`(reasoning that when district courts decline
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`to exercise jurisdiction over pendant state-law claims in a removed
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`case,
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`they may choose whether
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`to dismiss or
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`remand those claims).
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 5 of 12
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`However,
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`in determining whether or not this Court has jurisdiction or
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`must
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`remand the case at
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`this time,
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`it
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`is sufficient
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`that
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`federal
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`question jurisdiction attach to just one claim.
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`II. Analysis
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`Against
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`this background,
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`the key question is whether
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`any of
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`plaintiff’s ostensibly state-law claims
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`is preempted by
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`federal
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`copyright
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`law. Under Second Circuit precedent, “[t]he Copyright Act
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`exclusively governs a claim when:
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`(1)
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`claim is being applied falls within the type of works protected by the
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`the particular work to which the
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`Copyright Act
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`under
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`17 U.S.c.
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`§
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`102,”% which grants
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`copyright
`
`protections to “original works of authorship fixed in any tangible
`
`
`
`medium of expression .
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`.
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`.
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`from which they can be perceived,
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`reproduced, or otherwise communicated,”; and “(2)
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`the claim seeks to
`
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`vindicate legal or equitable rights that are equivalent to one ofthe
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`bundle of exclusive rights already protected by copyright
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`law under
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`17 U.S.C.
`
`§ 106,” which gives copyright owners the exclusive rights
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`to reproduce, copy,
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`and prepare derivative works of the copyrighted
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`work. Briarpatch, 373 F.3d at 305. The first “requirement is satisfied
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`if the claim applies to a work of authorship fixed in a tangible medium
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`£
`of expression and falling within the ambit of one of the categories
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`of copyrightable works.” Id. The podcast content
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`taped by Batchelor
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`
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`and allegedly owned by Red Apple plainly meets this requirement. See
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`17 U.S.C.
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`§ 102(a) (7)
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`(including “sound recordings” in the categories
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`of “works of authorship” to which copyright protection attaches).
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 6 of 12
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`As
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`to the second requirement -- whether the legal or equitable
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`rights asserted “are equivalent
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`to the bundle of exclusive rights
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`already protected” under federal copyright law -- “the state law claim
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`
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`must
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`involve
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`acts
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`of
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`reproduction,
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`adaptation,
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`performance,
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`f
`distribution or display,” and it “must not
`
`include any extra elements
`
`that make it qualitatively different
`
`from a copyright
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`infringement
`
`claim.” Briarpatch, 373 F.3d at 305. Courts “take a restrictive view”
`
`in evaluating whether
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`an extra element makes
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`a
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`state-law claim
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`qualitatively different
`
`from a federal copyright claim,
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`such that a
`
`requirement of “[a]wareness or intent” would not render the state-law
`
`claim qualitatively different, although “breach of
`
`fiduciary duty”
`
`would.
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`Id. at 306.
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`A. Red Apple’s Common Law Copyright Claim is preempted and vests
`this Court with jurisdiction.
`Doubtless there are hard cases in which the boundaries between
`
`preempted claims that
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`sound in copyright and genuinely independent
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`state-law claims become blurry; but Red Apple makes this an easy case
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`by alleging “Common Law Copyright Infringement.” Compl.
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`{I 99. This is
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`based on Red Apple’s alleged “possess[ion of] all exclusive rights
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`with respect to the materials and content produced for or by the John
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`Batchelor Show,” which “constitute[]
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`unique intellectual property
`
`subject
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`to common-law copyright protection,” and on defendants’
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`unauthorized “copying, reproduction, distribution, or broadcasting of
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`the materials and content produced for or by the John Batchelor Show”
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 7 of 12
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`in alleged “infringement of Plaintiff's exclusive rights” to those
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`Same materials and content. Compl.
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`@I@ 100-04.
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`This count clearly relates to works that would be protected under
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`17 U.S.C.
`
`§ 102
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`(content and recordings made for the John Batchelor
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`show), and seeks to vindicate those rights guaranteed by 17 U.S.C.
`
`§
`
`106 (Red Apple’s allegedly exclusive ownership and right
`
`to copy or
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`distribute these works). It also contains no “extra elements that make
`
`
`
`it qualitatively different
`
`from a copyright
`
`infringement claim.”
`
`Briarpatch, 373 F.3d at 305; see also Capitol Records,
`
`
`Inc. v. Naxos
`
`of America,
`
`Inc.,
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`372 F.3d 471,
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`477 n.2 (2d Cir. 2005)
`
`(“The 1976
`
`Copyright Act ended common law copyright protection for all works that
`
`are the subject of federal preemption.”) As such,
`
`the claim both arises
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`under,
`
`and is preempted by,
`
`the Copyright Act,
`
`and gives rise to
`
`subject matter jurisdiction over the instant case.
`
`£
`Seeking to evade this self-evident conclusion, Red Apple states
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`in a footnote that it “voluntarily dismisses its sixth cause of action
`
` for common law copyright
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`infringement.” Pls. Mem. Supp. Mot. 19 n.5.
`
`Even
`
`assuming
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`this Court
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`treats
`
`this
`
`footnote
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`in a brief
`
`as
`
`constituting “a notice of dismissal” of the relevant claim, see Fed.
`
`R. Civ. P. 41(a),
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`that would not alter the jurisdictional analysis,
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`because courts “evaluate a defendant’s
`
`right
`
`to remove
`
`a case to
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`federal court at the time the removal notice is filed.” Vera v. Saks
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`&Co., 335 F.3d 109, 116 n.2 (2d Cir. 2003); see id.
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`(looking to the
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`“plaintiff’s complaint, at the time defendant filed its removal notice”
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`to determine whether or not the complaint alleges federal claims); In
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 8 of 12
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`Touch Concepts, Inc. v. Cellco P’ ship, 788 F.3d 98, 101 (2d Cir. 2015)
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`(“[A]
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`post-removal
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`amendment
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`does
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`not
`
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`defeat
`
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`federal
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`question
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`jurisdiction premised on a federal question.
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`.
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`.
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`.”). And because Red
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`Apple’s common law copyright claim sufficed to give rise to federal
`
`question jurisdiction at the time this case was removed, supplemental
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`jurisdiction exists over each of Red Apple’s
`
`remaining claims
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`(if,
`
`indeed,
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`they sound in state law rather than federal law), because they
`
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`are based on the same “common nucleus of operative fact.” Briarpatch,
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`373 F.3d at 308; see 28 U.S.C.
`
`§ 1367(a).
`
`B. Red Apple’s Conversion and Unjust Enrichment Claim are also
`Completely Preempted.
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` Even assuming Red Apple footnote-dismissal of
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`its common
`
`law
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`copyright claim were effective and could retroactively undo this
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`Court’s subject matter jurisdiction (which,
`
`as explained above,
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`it
`
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`cannot), this would not matter, because many if not all of Red Apple’s
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`remaining claims are also completely preempted by the Copyright Act
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`and therefore also give rise to federal question jurisdiction. While
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`rr
`this Court will not exhaustively analyze each of plaintiff’s claims
`
`
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`here -- as explained above,
`
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`for jurisdictional purposes, it suffices
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`that this Court has federal question jurisdiction over even one claim
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`and supplemental jurisdiction over any other claims ~- the Court here
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`mentions two further claims that are plainly completely preempted: Red
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`Apple’s claims for conversion (Count 5, Compl.
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`@%@ 90-98)
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`and unjust
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`enrichment
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`(Count 7, Compl.
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`IT 106-108).
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 9 of 12
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`Each of these claims relates to Batchelor’s and other defendants’
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`profiting from their use of content they allegedly had no right to use
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`because of Red Apple’s exclusive ownership. Hach involves a work (The
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`Batchelor Show content) of
`
`
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`the sort protected by federal copyright
`
`
`
`law,
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`and each aims
`
`to vindicate rights analogous
`
`to the exclusive
`
`ownership and distribution rights guaranteed by federal copyright law.
`
`
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`Neither involves any other additional element sufficient to render it
`
`qualitatively different
`
`from a
`
`federal copyright claim. For
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`that
`
`reason,
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`the Second Circuit has previously held that unjust enrichment
`
`and conversion claims of
`
`the
`
`sort Red Apple here
`
`advances
`
`are
`
`
`
`
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`& Row Publishers,preempted. See Harper Inc. v. Nation Enters., 723
`
`F.2d 195,
`
`201
`
`(2d Cir. 1983),
`
`
`
`rev’d on other grounds 471 U.S. 529
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`(1985)
`
`
`
`(affirming dismissal of conversion claim as preempted by the
`
`Copyright Act where “unauthorized- publication [was]
`
`the gravamen of
`
`the[] claim’); Briarpatch, 373 F.3d at 306-07 (reasoning that an unjust
`
`enrichment claim under New York law based on a defendant’s aileged
`
`profiting from a
`
`
`film owned by plaintiff was preempted). These two
`
`claims therefore arise under the Copyright Act and give rise to federal
`
`question jurisdiction.
`
`Red Apple suggests that
`
`the Court could choose to dismiss the
`
`unjust enrichment claim in the event it is preempted. Pls. Mem. 19.
`
`But, for the reasons explained above,
`
`the possibility that one or more
`
` of Red Apple’s federal claims may be dismissed, whether by Red Apple
`
`
`or the Court, cannot deprive this Court of jurisdiction. Indeed, where,
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`as here,
`
`the entire basis for federal question jurisdiction consists
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 10 of 12
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`of Congress’s complete preemption of a state-law claim,
`
`the nominal
`
`state law claim that
`
`is completely preempted by federal
`
`law will
`
`necessarily be dismissed in virtually all
`
`imaginable
`
`scenarios
`
`precisely because it is preempted. Allowing the likelihood of dismissal
`
`of
`
`the preempted claim to defeat
`
`removal would entirely unravel
`
`complete preemption doctrine.
`
`Cc. Red Apple’s Breach of Contract Claims
`
`
`Red Apple’s primary argument for reamnd is “that the gist of this
`
`Complaint
`
`is breach of contract,” which, Red Apple contends,
`
`is not
`
`preempted by the Copyright Act and does not give rise to federal
`
`question jurisdiction. Pls. Mem. 19; see Compl. 91 56-80. As explained
`
`above, whatever the “gist” of its complaint, several of Red Apple's
`
`claims plainly arise under and are preempted by the Copyright Act, and
`
`because Red Apple’s contract claims arise out of. the same facts,
`
`they
`
`fall under the Court’s supplemental
`
`jurisdiction to the extent
`
`they
`
`are not also the subject of federal question jurisdiction. Though the
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`Court need go no further than it already has
`
`in order to deny Red
`
`Apple’s motion to remand, it notes that, on the basis of Red Apple’s
`
`
`complaint and the papers filed thusfar,
`
`there are strong arguments
`
`that Red Apple’s breach of contract claims would also be completely
`
`preempted.
`
`The Second Circuit has previously held that
`
`the Copyright Act
`
`does not preempt
`
`a breach-of-contract claim where one party to a
`
` LL
`
`contract sues her counterparty for failure to pay amounts owed under
`
`that contract, because “[a] claim for breach of contract
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`including a
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 11 of 12
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`promise to pay is qualitatively different from a suit to vindicate a
`
`right
`
`included in the Copyright Act.
`
`.
`
`.
`
`.” Forest Park Pictures v.
`
`Universal Television Network, Inc., 683 F.3d 424, 433 (2d Cir. 2012).
`
`
`However, it left open “whether preemption is precluded whenever there
`
`is a contract claim, or only when the contract claim includes a promise
`
`to pay.” Id.
`
`(considering divergent precedent
`
`from other circuits on
`
`this issue).
`
`Here,
`
`the “gist” of Red Apple’s breach of contract claim appears
`
`to consist largely of Batchelor’s and other defendants’ unauthorized
`
`use of intellectual property allegedly owned by Red Apple. See Compl.
`
`(qi 56-80. Absent the violation of some contractual duty more specific
`
`and particular to Batchelor than his general obligation -- shared with
`
`everyone else -- not to copy or distribute intellectual property owned
`
`by Red Apple,
`
`this claim too would appear.
`
`to meet
`
`the Briarpatch
`
`
`standard for preemption (and federal question jurisdiction). However,
`
`while the Court
`
`lays out
`
`these preliminary impressions to help focus
`
`the parties’ briefing in the event of any motion to dismiss, it need
`
`not,
`
`for the reasons explained above, decide at the present
`
`juncture
`
`whether Red Apple’s contract claims are completely preempted. Whether
`
`they are or not,
`
`this case was properly removed.
`
`IIIT. Conclusion
`
`Red Apple’s motion to remand is denied for the reasons stated
`
`above. It goes without saying that the Court also denies Red Apple’s
`
`request for attorneys’
`
`fees and expenses associated with its motion
`
`to remand. The Clerk is directed to close the motion (Dkt. 13) on the
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`11
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`Case 1:22-cv-07547-JSR Document 18 Filed 10/24/22 Page 12 of 12
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`docket. The parties are directed to jointly call chambers on 10/25/22
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`to schedule further proceedings.
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`SOQ ORDERED.
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`
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`db. ( by
`New York, NY
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`JEDZS. RAKOFF, U.S.D.Jd.
`October AF 2022
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`12
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