Case: 1:19-cv-02899-PAB Doc #: 10 Filed: 04/02/20 1 of 9. PageID #: 65
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`UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`CASE NO. 1:19-cv-2899
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`JUDGE PAMELA A. BARKER
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`MEMORANDUM OPINION AND
`ORDER
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`BRYAN ROBERT STRICKLAND,
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`vs.
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`PLAINTIFF,
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`PETER A. SPITALIERI,
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` DEFENDANT.
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`Pro se plaintiff Bryan Robert Strickland (“Strickland”) filed this action in the Cuyahoga
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`County Court of Common Pleas, and was removed by defendant Peter A. Spitalieri (“Spitalieri”).
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`(Doc. No. 1.) Pending before the Court is Spitalieri’s motion to dismiss this action pursuant to
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`Fed. R. Civ. P. 12(b)(6) (Doc. No. 7), and Strickland’s motion for a continuance (Doc. No. 8).
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`For the reasons that follow, Strickland’s motion for a continuance is denied and
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`Spitalieri’s motion to dismiss is granted.
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`A. Background
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`Strickland commenced this action in the Cuyahoga County Court of Common Pleas. The
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`caption of his complaint describes this case as a copyright and trademark action. (Doc. No. 1 at
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`6-13.1) Strickland alleges that he delivered an “International Promissory Note” to Spitalieri to
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`discharge a debt of $226.64. (Id. ¶ 3, 4.) Along with the promissory note, Strickland included a
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`“Copyright warning letter stating not to use the Copyright name and the pubic sight were [sic]
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`the defendant could read about the copyright.” (Id. ¶ 5.)
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`1 Page number references are to page identification number generated by the Court’s electronic docketing system.
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`Strickland states that Spitalieri violated his copyright and trademark rights on or before
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`September
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`12,
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`2018,
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`which
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`are
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`“recorded
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`on
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`public
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`sight”
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`at
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`www.nationalpublicrecordregistry.com, but does not otherwise identify the copyright and
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`trademark at issue here. (Id. ¶ 7, 8.) Strickland states that the copyright document and
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`Spitalieri’s use of his copyright and trademark are attached to the complaint. (See id. ¶ 8, 10,
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`11.) But the only attachment to the complaint is a document titled by Strickland as “Legal
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`Precedents” and consists of what he describes as “bill of rights” excerpts from numerous state
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`constitutions. (See id. at 8-13.) For relief, Strickland seeks monetary damages. (Id. ¶ 9.)
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`In his Rule 12(b)(6) motion to dismiss, Spitalieri provides background information
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`regarding events Strickland alludes to in the complaint. A company called CELCO collects
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`debts for the State of Ohio and was offered a promissory note by Strickland to satisfy a debt he
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`owed to the State. Spitalieri, the owner of CELCO, believes the instant action was brought by
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`Strickland as a defense to the debt owed to the State. (Doc. 7 at 1, 6.)
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`In support of the motion, Spitalieri agues there are no allegations in the complaint that
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`identify the registration of the copyright or trademark upon which Strickland bases his
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`allegations, describe how Spitalieri violated Strickland’s copyright and trademark, or describe
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`any other conduct by Spitalieri that allegedly imparts liability. (See id. at 3-4.) In addition,
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`Spitalieri contends that this action is entirely without merit and seeks attorney fees. (Id. at 5-6.)
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`The motion to dismiss was filed on January 7, 2020. Strickland did not respond to
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`Spitalieri’s motion. Rather, on March 13, 2020, Strickland filed a motion for a continuance
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`because he is having hip replacement surgery on March 17, 2020 and there is an eight-week
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`recovery period. (Doc. No. 8.) Spitalieri opposed Strickland’s motion for an unspecified
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`2
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`continuance on the grounds that Strickland offers no justification as to why he could not respond
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`to Spitalieri’s motion in a timely manner or before his hip replacement surgery. (Doc. No. 9.)
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`B. Standard of Review
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`When deciding a motion to dismiss under Fed. R. Civ. P. 12(b)(6), the function of the
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`Court is to test the legal sufficiency of the complaint. See Mayer v. Mulod, 988 F.2d 635, 638
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`(6th Cir. 1993). The Supreme Court in Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct.
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`1955, 167 L. Ed. 2d 929 (2007), and in Ashcroft v. Iqbal, 556 U.S. 662, 677-78, 129 S. Ct. 1937,
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`173 L. Ed. 2d 868 (2009), clarified the law regarding what a plaintiff must plead in order to
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`survive a Rule 12(b)(6) motion. When determining whether a plaintiff has stated a claim upon
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`which relief can be granted, the Court must construe the complaint in the light most favorable to
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`the plaintiff, accept all factual allegations as true, and determine whether the complaint contains
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`“enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570.
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`Plaintiff’s obligation to provide the grounds for relief “requires more than labels and
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`conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id. at
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`545. Although a complaint need not contain detailed factual allegations, its “factual allegations
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`must be enough to raise a right to relief above the speculative level on the assumption that all the
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`allegations in the Complaint are true.” Id. at 555. While the Court is required to construe the
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`complaint in a light most favorable to the plaintiff and accept all factual allegations as true, the
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`Court is “not bound to accept as true a legal conclusion couched as a factual allegation.”
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`Papasan v. Allain, 478 U.S. 265, 286, 106 S. Ct. 2932, 92 L. Ed. 2d 209 (1986).
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`The “plausibility” requirement is satisfied when plaintiff pleads factual content that
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`allows the Court “to draw the reasonable inference that the defendant is liable for the misconduct
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`3
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`alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability
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`requirement,’ but it asks for more than a sheer possibility that a Defendant acted unlawfully.” Id.
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`Pro se pleadings are held to “less stringent standards than formal pleadings drafted by
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`lawyers” and must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520, 92 S. Ct. 594, 30
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`L. Ed. 2d 652 (1972)); Franklin v. Rose, 765 F.2d 82, 85 (6th Cir. 1985) (pro se complaints are
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`entitled to liberal construction) (citations omitted). That said, the Court is not required to conjure
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`unpleaded facts or construct claims on Strickland’s behalf and he must allege “more than bare
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`assertions of legal conclusions ... to satisfy federal notice pleading requirements.” See Grinter v.
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`Knight, 532 F.3d 567, 577 (6th Cir. 2008) (internal quotation marks and citations omitted).
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`C. Analysis
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`Strickland’s motion for a continuance is denied
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`Before analyzing Spitalieri’s dispositive motion, the Court will consider Strickland’s
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`motion for a continuance, which the Court construes as a request for an extension of time to
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`respond to Spitalieri’s motion to dismiss.2 Local Rule 7.1(d) requires plaintiff to oppose
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`defendant’s motion within thirty (30) days after service.3 L.R. 7.1(d) (“Unless otherwise ordered
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`by the Judicial Officer, each party opposing a motion must serve and file a memorandum in
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`opposition within thirty (30) days after service of any dispositive motion and within fourteen
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`(14) days after service of any non-dispositive motion.”).
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`Although pro se litigants are generally allowed more leeway than individuals represented
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`by counsel, such leeway has its limits. See Pilgrim v. Littlefield, 92 F.3d 413, 416 (6th Cir.
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`1996). Pro se plaintiffs are obligated to be aware of and comply with procedural rules applicable
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`2 To the extent that Spitalieri is requesting a stay of this case for an indeterminate period, that request is denied.
`3 According to the motion, it was served upon Strickland at his address of record by regular U.S. Mail.
`4
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`to their case. The fact that Strickland is proceeding pro se does not justify his noncompliance
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`with Local Rule 7.1(d). See Needham v. Butler Cty. Jail, No. 1:19-CV-294, 2019 WL 5899326,
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`at *2 (S.D. Ohio Nov. 12, 2019) (“Plaintiff is forewarned that his pro se status and professed
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`health conditions do not relieve him of his obligation to fully comply with applicable rules of
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`civil procedure[.]”), report and recommendation adopted, No. 1:19CV294, 2019 WL 6682155
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`(S.D. Ohio Dec. 6, 2019); Hunter v. Lockland City Sch., No. 1:16-CV-418, 2016 WL 4471687,
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`at *2 (S.D. Ohio July 27, 2016) (“[T]he undersigned reminds Plaintiff that his pro se status does
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`not excuse him from his obligations to comply with all local and federal rules of civil
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`procedure[.]”), report and recommendation adopted, No. 1:16CV418, 2016 WL 4468251 (S.D.
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`Ohio Aug. 24, 2016).
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`Moreover, in his motion for a continuance, Strickland offers no reason, justification, or
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`explanation for his failure to timely respond to Spitalieri’s motion to dismiss nor explain his
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`belated request for an extension of time.4 Accordingly, Strickland’s motion for a continuance is
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`denied. See Famularcano v. SanMar Corp., No. 1:10-CV-511, 2012 WL 4180417, at *2 (S.D.
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`Ohio Sept. 18, 2012) (denying plaintiff’s motion for an extension of time to respond to
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`defendant’s summary judgment motion where “plaintiff offers no justification whatsoever for the
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`requested extension, nor any explanation for her failure to file a response to the motion for
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`summary judgment.”), report and recommendation adopted, No. 1:10-CV-00511, 2012 WL
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`4848974 (S.D. Ohio Oct. 11, 2012).
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`4 See Fed. R. Civ. P 6(b):
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`In General. When an act may or must be done within a specified time, the court may, for good cause,
`extend the time:
`(A) with or without motion or notice if the court acts, or if a request is made, before the original time
`or its extension expires; or
`(B) on motion made after the time has expired if the party failed to act because of excusable neglect.
`5
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`Spitalieri’s motion to dismiss is granted
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`Copyright infringement
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`Strickland alleges that Spitalieri violated his copyright and trademark. Copyright
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`infringement occurs when anyone “‘violates any of the exclusive rights of the copyright owner.’”
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`Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (quoting 17
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`U.S.C. § 501(a)). “Copyright infringement has two elements: ‘(1) ownership of a valid
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`copyright; and (2) copying of constituent elements of the work that are original.’” Id. (citing
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`Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir. 2004) (citation and quotation marks
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`omitted)). Strickland alleges that he owns a valid copyright and that Spitalieri has infringed that
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`copyright. But these allegations are simply legal conclusions masquerading as factual
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`allegations and are insufficient to state a plausible claim for relief. See Bishop v. Lucent Techs.,
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`Inc., 520 F.3d 516, 519 (6th Cir. 2008) (“Conclusory allegations or legal conclusions
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`masquerading as factual allegations will not suffice [to state a plausible claim for relief].”)
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`(citation omitted).
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`Even with the benefit of liberal construction, Strickland does not plead factual allegations
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`that allow the Court to draw the reasonable inference that Spitalieri is liable for copyright
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`infringement. See Iqbal, 556 U.S. at 678. Accordingly, Spitalieri’s Rule 12(b)(6) motion to
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`dismiss Strickland’s copyright infringement claim is granted.
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`Trademark infringement
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`With respect to his trademark infringement claim, to the extent that Strickland is asserting
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`a claim for trademark infringement under the federal Lanham Act, he fails to state a plausible
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`6
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`claim upon which relief may be granted.5 The elements of a trademark infringement claim set
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`forth in the statute are that (1) the plaintiff is an owner of a registered mark, (2) the defendant
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`uses the mark in commerce, and (3) the use is likely to cause confusion. See Accelerated
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`Analytics, LLC v. Int’l Bus. Machines Corp., No. 1:15 CV 401, 2015 WL 3828077, at *3 (N.D.
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`Ohio June 19, 2015) (citing 15 U.S.C. § 1114(1)(a)); Zinganything, LLC v. Imp. Store, 158 F.
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`Supp. 3d 668, 673 (N.D. Ohio 2016) (same). As with his copyright infringement claim,
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`Strickland simply states in conclusory fashion that he owns a trademark (which he does not
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`identify) and Spitalieri has infringed his trademark but asserts no factual allegations from which
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`the Court could draw the reasonable inference that the first two elements of a trademark claim
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`have been plausibly alleged. “The ‘touchstone of liability’ for trademark infringement under 15
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`U.S.C. § 1114 ‘is whether defendant’s use of the disputed mark is likely to cause confusion
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`among consumers regarding the origin of the goods offered by the parties.’” Zinganything, LLC,
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`158 F. Supp. 3d at 673 (quoting The Ohio State Univ. v. Skreened Ltd., 16 F.Supp.3d 905, 910
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`(S.D. Ohio 2014) (citation omitted)). The complaint is devoid of allegations regarding the third
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`element of a Lanham Act trademark infringement claim.
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`Even with the benefit of liberal construction, Strickland does not plead factual allegations
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`that allow the Court to draw the reasonable inference that Spitalieri is liable for trademark
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`infringement. See Iqbal, 556 U.S. at 678. Accordingly, Spitalieri’s Rule 12(b)(6) motion to
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`dismiss Strickland’s trademark infringement claim is granted.
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`Spitalieri’s request for attorney fees is denied
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`5 To the extent that Strickland is asserting a trademark infringement claim pursuant to Ohio law, the analysis of that
`claim is the same as the analysis of a federal Lanham Act claim. See Microsoft Corp. v. McGee, 490 F. Supp. 2d
`874, 880-81 (S.D. Ohio 2007) (collecting cases).
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`7
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`Spitalieri seeks attorney fees pursuant to section 505 of the Copyright Act and the
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`Lanham Act (15 U.S.C. §1117(a)). (Doc. No. 7 at 57-58.) As Spitalieri recognizes, an award of
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`attorney fees is a matter for the Court’s discretion considering the totality of the circumstances.
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`See id. Because Strickland is proceeding pro se, “the Court must also consider the directive that
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`district courts should afford the papers submitted by a pro se litigant ‘some leniency’ when
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`determining whether attorney fees should be accessed against that litigant.” See Deutsche Bank
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`Nat’l Tr. Co. v. Wolf, No. 1:15-CV-814, 2016 WL 1690697, at *1 (S.D. Ohio Apr. 26, 2016)
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`(“Given that the Wolf Defendants are proceeding pro se, the Court declines to exercise its
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`discretion to award fees on the basis that seeking removal was objectively unreasonable.”) (citing
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`Williams v. City of Southfield, 99 F. App’x 44, 46 (6th Cir. 2004) (The fact that a pro se
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`plaintiff’s complaint cannot survive a motion to dismiss does not, without more, entitle the
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`defendant to attorney’s fees and, although plaintiff’s complaint was ultimately dismissed for
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`failure to state a claim for relief under Fed. R. Civ. P. 12(b)(6), the dismissal was in large part a
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`result of plaintiff’s failure to properly plead his claims against the defendants.)).
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`Given Strickland’s pro se status and simple failure to properly plead the elements of his
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`copyright and trademark infringement claims, the Court declines to exercise its discretion to
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`award attorney fees to Spitalieri under the Copyright Act or under the Lanham Act.
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`8
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`D. Conclusion
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`For all the foregoing reasons, Strickland’s motion for a continuance is denied. Further,
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`Spitalieri’s motion to dismiss is granted, and this case is dismissed and closed.
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`IT IS SO ORDERED.
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`Date: April 2, 2020 S/ Pamela A. Barker
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`Pamela A. Barker
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`U.S. District Judge
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`9
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