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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF OHIO
`EASTERN DIVISION
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`Case No. 2:13-CV-647
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`JUDGE ALGENON L. MARBLEY
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`Magistrate Judge King
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`COMPASS HOMES, INC.,
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` Plaintiff,
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` v.
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`TRINITY HEALTH GROUP, LTD., et al.,
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` Defendants.
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`OPINION & ORDER
`I. INTRODUCTION
`This matter is before the Court on Defendant Total Cleaning & P.O. LLC’s Motion to
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`Dismiss (Doc. 16); Defendants Thomas and Angela McDermott’s Motion to Dismiss (Doc. 20);
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`Defendant Trinity Health Group, LTD.’s Motion for Judgment on the Pleadings (Doc. 24); and
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`Defendant Shirk & O’Donovan Consulting Engineers, Inc.’s Motion for Judgment on the
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`Pleadings (Doc. 25). For the reasons set forth herein, Defendants’ Motions are each GRANTED
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`in part, and DENIED in part.
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`II. BACKGROUND
`Plaintiff Compass Homes (“Compass” or “Plaintiff”) is an Ohio corporation that builds
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`custom homes, creates architectural designs, and constructs and markets houses using those
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`designs. Its principal place of business is in Delaware County, Ohio. Defendant Total Cleaning
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`& P.O., LLC (“Total Cleaning”) is a limited liability corporation with a principal place of
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`business in Pickaway County, Ohio. Defendants Thomas and Angela McDermott (collectively
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`“the McDermotts”) are individuals who reside in Delaware County, Ohio. Defendant Trinity
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`Health Group, LTD. (“Trinity”) is an Ohio limited liability company with its principal place of
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`business in Franklin County, Ohio. Defendant Shirk & O’Donovan Consulting Engineers, Inc.
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 2 of 13 PAGEID #: 269
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`(“Shirk & O’Donovan”) is an Ohio corporation with a principal place of business in Franklin
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`County, Ohio.
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`In December 2011, the McDermotts placed a request with Compass for a composite and
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`design for a home they intended to construct. (Complaint, Doc. 2, ¶ 14). Compass authored an
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`original architectural design and drawing for the McDermotts, with the belief that the
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`McDermotts would subsequently contract with Compass to construct a home based on the
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`proffered design. (Id.). In January 2012, Compass completed the design, and provided it to the
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`McDermotts. (Id. at ¶ 15). The design included the following statement regarding distribution
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`of Compass’s design:
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`COPYRIGHT 2011
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`ALL DRAWING AND WRITTEN MATERIAL APPEARING
`HEREIN CONSTITUTE THE ORIGINAL AND UNPUBLISHED
`WORK OF COMPASS HOMES INC. AND/OR THE SAME
`MAY NOT BE COPIED USED DISCLOSED OR CONSIGNED
`TO A THIRD PARTY WITHOUT THE EXPRESS WRITTEN
`CONSENT OF COMPASS HOMES INC. WHICH RETAINS
`THE COMMON LAW COPYRIGHT TO THIS MATERIAL.
`(Id. at ¶ 16). Compass submitted its application for a Certificate of Registration to the United
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`States Copyright Office on February 17, 2012. (Id. at ¶ 17).
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`After receiving Compass’s design, the McDermotts gave the design to Trinity. (Id. at ¶
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`19). The McDermotts entered into an agreement with Trinity through which Trinity would
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`construct a house on the McDermotts’ property, located at 292 Caboose Lane, Delaware, Ohio
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`43015. (Id.). Shirk & O’Donovan, Defendant Arrow Heating and Cooling Mechanical
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`2
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 3 of 13 PAGEID #: 270
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`(“Arrow”), Inc.,1 and the John Does participated in preparing plans for the McDermott’s home.
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`(Id. at ¶ 20). Those plans were allegedly based on an unauthorized copy or derivative of the
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`Compass Design. (Id.). In 2013, Trinity constructed the residence by incorporating, creating, or
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`directing the creation of the plans prepared by Shirk & O’Donovan, Arrow, and the John Does.
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`(Id. at ¶ 23). Total Cleaning also participated in the house’s construction. (Id. at ¶ 22). None of
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`the Defendants received Compass’s authorization prior to using Compass’s design. (Id. at ¶ 24).
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`According to Compass, however, Defendants did have access to the design, and copies of the
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`infringing design have since been used for Defendants’ promotional and advertising materials, as
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`well as distributed to consumers. (Id. at ¶ 25, 26(b), 26(c)).
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`On July 5, 2013, Compass filed a Complaint against Defendants Trinity, Total Cleaning,
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`the McDermotts, Shirk & O’Donovan, Arrow, and John Does 1 through 10, alleging four causes
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`of action: (1) copyright infringement under the Copyright Act, 17 U.S.C. § 504; (2) unjust
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`enrichment, or quantum meruit; (3) conversion; and (4) tortious interference with business
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`relations. On August 1, 2013, pursuant to Rule 12(b)(6), Defendant Total Cleaning filed a
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`Motion to Dismiss for failure to state a claim upon which relief can be granted. On August 21,
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`2013, Defendants Thomas and Angela McDermott, pursuant to Rule 12(b)(6), filed a Motion to
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`Dismiss for failure to state a claim upon which relief can be granted. On September 11, 2013,
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`Defendant Trinity and Defendant Shirk & O’Donovan, pursuant to Rules 12(b)(1), 12(b)(6), and
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`12(c), filed Motions for Judgment on the Pleadings. Each individual motion set forth arguments
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` 1
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` On October 10, 2013, Arrow Heating and Cooling Mechanical, Inc. was dismissed as a party pursuant to the
`Court’s Order. (Order granting Motion to Dismiss All Claims Against Defendant Arrow Heating and Cooling
`Mechanical, Inc., Doc. 39).
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`3
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 4 of 13 PAGEID #: 271
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`asking this Court to dismiss Counts I through III on the same legal bases. The arguments are,
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`therefore, addressed collectively herein.
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`III. STANDARD OF REVIEW
`A. Motion to Dismiss
`Federal Rule of Civil Procedure 12(b)(6) allows for a case to be dismissed for “failure to
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`state a claim upon which relief can be granted.” Such a motion “is a test of the plaintiff’s cause
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`of action as stated in the complaint, not a challenge to the plaintiff’s factual allegations.” Golden
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`v. City of Columbus, 404 F.3d 950, 958-59 (6th Cir. 2005). Thus, the Court must construe the
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`complaint in the light most favorable to the non-moving party. Total Benefits Planning Agency,
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`Inc. v. Anthem Blue Cross & Blue Shield, 552 F.3d 430, 434 (6th Cir. 2008). The Court is not
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`required, however, to accept as true mere legal conclusions unsupported by factual allegations.
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`Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009). Although liberal, Rule 12(b)(6) requires more than
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`bare assertions of legal conclusions. Allard v. Weitzman, 991 F.2d 1236, 1240 (6th Cir. 1993)
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`(citation omitted). Generally, a complaint must contain a “short and plain statement of the claim
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`showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). But the complaint must
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`“‘give the defendant fair notice of what the claim is, and the grounds upon which it rests.’”
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`Nader v. Blackwell, 545 F.3d 459, 470 (6th Cir. 2008) (quoting Erickson v. Pardus, 551 U.S. 89,
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`93 (2007)). In short, a complaint’s factual allegations “must be enough to raise a right to relief
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`above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). It must
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`contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570.
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`B. Motion for Judgment on the Pleadings
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`A motion for judgment on the pleadings under Rule 12(c) attacks the sufficiency of the
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`pleadings and is reviewed under the same standard applicable to a Rule 12(b)(6) motion to
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`4
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 5 of 13 PAGEID #: 272
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`dismiss. Ziegler v. IBP Hog Mkt., 249 F.3d 509, 511–12 (6th Cir.2001). A Rule 12(c) motion is
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`granted only if there is an absence of law to support a claim of the type made or of facts
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`sufficient to make a valid claim, or if on the face of the complaint there is an insurmountable bar
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`to relief indicating that the plaintiff does not have a claim. Cmty. Mental Health Servs. v. Mental
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`Health & Recovery Bd., 395 F.Supp.2d 644, 649 (S.D.Ohio 2004). At the same time, the court
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`need not accept as true legal conclusions or unwarranted factual inferences. JPMorgan Chase
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`Bank, N.A. v. Winget, 510 F.3d 577, 582 (6th Cir. 2007) (internal citation omitted).
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`IV. ANALYSIS
`A. Count I – Copyright Infringement
`A claim for copyright infringement is brought properly when a plaintiff can establish:
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`“(1) ownership of a valid copyright; and (2) copying of constituent elements of the work that are
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`original.” Bridgeport Music, Inc. v. WM Music Corp., 508 F.3d 394, 398 (6th Cir. 2007) (citing
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`Stromback v. New Line Cinema, 384 F.3d 283, 293 (6th Cir.2004)). Under the Copyright Act,
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`“no civil action for infringement of the copyright in any United States work shall be instituted
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`until preregistration or registration of the copyright claim has been made in accordance with this
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`title.” 17 U.S.C. § 411(a). The Supreme Court, in Reed Elsevier, Inc. v. Muchnick, clarified the
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`necessity of registration in copyright claims, stating: “Section 411(a)'s registration requirement is
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`a precondition to filing a claim that does not restrict a federal court's subject-matter jurisdiction.”
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`559 U.S. 154, 157 (2010); see also Dice Corp. v. Bold Technologies, 12-2513, 2014 WL 260094,
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`at *8 (6th Cir. Jan. 24, 2014).
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`In the case sub judice, the predominant issue is that Plaintiff did not obtain a Certificate
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`of Registration prior to filing suit. (Defendant Total Cleaning’s Motion to Dismiss, Doc. 16 at 2-
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`4; Defendants Thomas and Angela McDermott’s Motion to Dismiss, Doc. 20 at 4-5; Defendant
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`5
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 6 of 13 PAGEID #: 273
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`Trinity’s Motion for Judgment on the Pleadings, Doc. 24 at 2; Defendant Shirk & O’Donovan’s
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`Motion for Judgment on the Pleadings, Doc. 25 at 2). Without obtaining a Certificate of
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`Registration before filing, Plaintiff failed to satisfy the necessary statutory formalities clarified
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`by the Muchnick Court. Muchnick, 559 U.S. at 157. Moreover, Defendants note that the
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`document attached as Exhibit B to Plaintiff’s Complaint (Complaint, Doc. 2-2) is not a
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`Certificate of Registration, but merely an image of a page from the website of the Copyright
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`Office. As such, Defendants claim it offers no basis for concluding that Plaintiff has registered
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`its copyright. Defendants allege that, without a valid Certificate of Registration issued prior to
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`the filing of the Complaint, Plaintiff is barred from bringing a copyright infringement action.
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`In response to Total Cleaning’s Motion to Dismiss (Plaintiff’s Memorandum Contra,
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`Doc. 19 at 4-8), Plaintiff argues that its claim is not barred by the precedent set forth in
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`Muchnick. Plaintiff relies on outdated and unpersuasive case law, none of which was decided
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`after Muchnick. Though the Sixth Circuit has not specifically addressed the issue of copyright
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`infringement claims brought by parties who have merely filed an application with the Copyright
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`Office, several district courts within the Sixth Circuit, following Muchnick, have “construed this
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`registration requirement strictly, and dismissed the infringement claim if the plaintiff ha[s] not
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`satisfied the precondition of registration before initiating suit.” Allure Jewelers, Inc. v. Ulu,
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`1:12-CV-91, 2012 WL 4322519, at *2 (S.D. Ohio Sept. 20, 2012) (citing Sony/ATV Music
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`Publ’g LLC v. D.J. Miller Music Distribs., Inc., 2010 WL 3872802, at *4 (M.D. Tenn. Sept. 28,
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`2010); TreadmillDoctor.com, Inc. v. Johnson, 2011 WL 1256601, at *4-6 (W.D. Tenn. March
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`6
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`31, 2011)).
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`On September 13, 2013, Plaintiff filed its newly granted Copyright Registration as an
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`attachment to a responsive pleading. (See Plaintiff’s Memorandum in Opposition, Doc. 26-1).
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`Plaintiff, therefore, in response to the motions filed by Defendants the McDermotts, Shirk &
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`O’Donovan, and Trinity, contends that the precondition arguments are now moot. Plaintiff
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`makes such a claim despite the fact that it did not file its Copyright Registration until after the
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`McDermotts, Shirk & O’Donovan, and Trinity had each filed their respective motions. Nor have
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`Plaintiffs made an effort to file properly the Copyright Registration beyond merely attaching it to
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`a responsive pleading.
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`In Strozewski v. Rod’s Western Palace, this Court permitted a copyright infringement
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`case to proceed even though plaintiff had not obtained a copyright registration prior to filing suit,
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`and the plaintiff’s copyright had been approved after the defendant filed its motion to dismiss.
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`No. 10-cv-1128, 2011 WL 6179270, at *1 (S.D. Ohio Dec. 13, 2011). Plaintiff sought leave to
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`file a second amended complaint, which this Court granted, to “reflect that his copyright is now
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`fully registered.” Id. Though the copyright registration was not filed before plaintiff brought
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`suit, this Court permitted the action to proceed on two grounds. First, the Court had proper
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`jurisdiction throughout the entirety of the action. Id. Second, had the Court chosen to deny
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`plaintiff’s leave to amend the complaint, plaintiff could simply have re-filed the action. Id.
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`Here, the timing of Plaintiff’s copyright registration, coupled with Plaintiff’s decision
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`merely to attach the registration to a responsive pleading, has resulted in disjointed strings of
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`pleadings. Plaintiff’s lack of copyright registration prior to filing is not a ground on which to
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`dismiss Count I, because it is clear that the registration has since been approved. Plaintiff must
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`properly file its copyright registration, however, to prevent any further confusion. Plaintiff,
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 8 of 13 PAGEID #: 275
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`therefore, is hereby ORDERED to file an Amended Complaint with the copyright registration
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`attached. Plaintiff’s Amended Complaint shall reflect the Court’s findings set forth within this
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`Order. Accordingly, Defendants’ Motions as to Count I are hereby DENIED.
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`B. Preemption of State Law Claims
`Defendants each argue that Counts II and III, alleging unjust enrichment and conversion,
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`respectively, are preempted under 17 U.S.C. § 301.
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`Section 301 of the Copyright Act provides that:
`On and after January 1, 1978, all legal or equitable rights that are
`equivalent to any of the exclusive rights within the general scope
`of copyright as specified by section 106 in works of authorship that
`are fixed in a tangible medium of expression and come within the
`subject matter of copyright as specified by sections 102 and 103,
`whether created before or after that date and whether published or
`unpublished, are governed exclusively by this title. Thereafter, no
`person is entitled to any such right or equivalent right in any such
`work under the common law or statutes of any State.
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`17 U.S.C. § 301(a). Therefore, “a state common law or statutory claim is preempted if: (1) the
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`work is within the scope of the ‘subject matter of copyright,’ as specified in 17 U.S.C. §§ 102,2
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`103;3 and, (2) the rights granted under state law are equivalent to any exclusive rights within the
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` 2
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` Section 102 states: (a) Copyright protection subsists, in accordance with this title, in original works of authorship
`fixed in any tangible medium of expression, now known or later developed, from which they can be perceived,
`reproduced, or otherwise communicated, either directly or with the aid of a machine or device. Works of authorship
`include the following categories: (1) literary works; (2) musical works, including any accompanying words; (3)
`dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial,
`graphic, and sculptural works; (6) motion pictures and other audiovisual works; (7) sound recordings; and (8)
`architectural works.
`(b) In no case does copyright protection for an original work of authorship extend to any idea, procedure, process,
`system, method of operation, concept, principle, or discovery, regardless of the form in which it is described,
`explained, illustrated, or embodied in such work.
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` 3
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` Section 103 states: (a) The subject matter of copyright as specified by section 102 includes compilations and
`derivative works, but protection for a work employing preexisting material in which copyright subsists does not
`extend to any part of the work in which such material has been used unlawfully.
`(b) The copyright in a compilation or derivative work extends only to the material contributed by the author of such
`work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right
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`Case: 2:13-cv-00647-JLG-MRA Doc #: 45 Filed: 03/26/14 Page: 9 of 13 PAGEID #: 276
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`scope of federal copyright as set out in 17 U.S.C. § 106.”4 Wrench LLC v. Taco Bell Corp., 256
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`F.3d 446, 453 (6th Cir.2001). While it is undisputed that the plans at issue meet the subject
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`matter requirement, the parties disagree as to whether Plaintiff’s claims for unjust enrichment
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`and conversion are preempted under the second prong, or “equivalency requirement.” See
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`Stromback, 384 F.3d at 301.
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`As set forth by the Sixth Circuit:
`Equivalency exists if the right defined by state law may be abridged by an
`act which in and of itself would infringe one of the exclusive rights.
`Conversely, if an extra element is required instead of or in addition to the
`acts of reproduction, performance, distribution or display in order to
`constitute a state-created cause of action, there is no preemption, provided
`that the extra element changes the nature of the action so that it is
`qualitatively different from a copyright infringement claim.
`Id. (citing Wrench, 256 F.3d at 456). Under the equivalency requirement, an extra
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`element found in the relevant state law “precludes preemption only where the element
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`changes the nature, rather than the scope, of the action.” Id. (citing Data Gen. Corp. v.
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`Grumman Sys. Support Corp., 36 F.3d 1147, 1164-65 (1st Cir. 1994)).
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`1. Unjust Enrichment
`Under Ohio law, a plaintiff must satisfy three elements for an unjust enrichment claim.
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`Hambleton v. R.G. Barry Corp., 465 N.E.2d 1298, 1302 (Ohio 1984). There must be: “(1) a
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`in the preexisting material. The copyright in such work is independent of, and does not affect or enlarge the scope,
`duration, ownership, or subsistence of, any copyright protection in the preexisting material.
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` 4
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` Section 106 states: Exclusive rights in copyrighted works Subject to sections 107 through 121, the owner of
`copyright under this title has the exclusive rights to do and to authorize any of the following: (1) to reproduce the
`copyrighted work in copies or phonorecords; (2) to prepare derivative works based upon the copyrighted work; (3)
`to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or
`by rental, lease, or lending; (4) in the case of literary, musical, dramatic, and choreographic works, pantomimes, and
`motion pictures and other audiovisual works, to perform the copyrighted work publicly; (5) in the case of literary,
`musical, dramatic, and choreographic works, pantomimes, and pictorial, graphic, or sculptural works, including the
`individual images of a motion picture or other audiovisual work, to display the copyrighted work publicly; and (6) in
`the case of sound recordings, to perform the copyrighted work publicly by means of a digital audio transmission.
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`benefit conferred by a plaintiff upon a defendant; (2) knowledge by the defendant of the benefit;
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`and (3) retention of the benefit by the defendant under circumstances where it would be unjust to
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`do so without payment.” Id. Claims for unjust enrichment arise out of contracts implied in law.
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`DVCC, Inc. v. Med. Coll. of Ohio, 2006 WL 496036, at *4 (internal citations omitted). A
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`contract implied in law requires no meeting of the minds but “civil liability arises out of the
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`obligation cast by law upon a person in receipt of benefits which he is not justly entitled to retain
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`and for which he may be made to respond to another in an action in the nature of assumpsit.”
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`Legros v. Tarr, 44 Ohio St. 3d 1, 7 (1989) (quoting Hummel v. Hummel, 133 Ohio St. 520, 525
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`(1938)). A contract implied in fact, on the other hand, requires a meeting of the minds, “which
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`[makes] it inferable that the contract exists as a matter of tacit understanding.” Id. at 6-7.
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`The Sixth Circuit has emphasized the “crucial difference” between a contract implied in
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`fact and a contract implied in law under the preemption analysis:
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`[For a contract implied in law], the action depends on nothing
`more than the unauthorized use of the work. Thus, an action based
`on a contract implied in law requires no extra element in addition
`to an act of reproduction, performance, distribution or display,
`whereas an action based on a contract implied in fact requires the
`extra element of a promise to pay for the use of the work which is
`implied from the conduct of the parties.
`Wrench, 256 F.3d at 459; see also Tastefully Simple, Inc. v. Two Sisters Gourmet, LLC, 134 F.
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`App’x 1, fn. 3 (6th Cir. 2005) (plaintiff’s unjust enrichment claims regarding forms labled,
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`“Taxes,” “Reactivation,” and “Party Checklist” were preempted because: (1) they fell within the
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`scope of the “subject matter of copyright;” and (2) the claims depended on nothing more than the
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`unauthorized use of the copyrighted material) (citing Murray Hill Publications, Inc. v. ABC
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`Communications, Inc., 264 F.3d 622, 636 (6th Cir. 2001) (abrogated on other grounds by
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`10
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`Muchnick, 559 U.S. 154)).
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`Defendants each argue that the Plaintiff’s claim for unjust enrichment is barred. (Doc. 16
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`at 4-6; Doc. 20 at 6-9; Doc. 24 at 2; Doc. 25 at 2). Specifically, Defendants state that, because
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`Plaintiff has failed to allege an additional element, the claim is preempted under the two-part test
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`set forth in Wrench. Conversely, Plaintiff contends that it has alleged an extra element—that it
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`has the right to be paid for its work. Plaintiff further claims that it has alleged an implied
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`promise to be paid for its design.
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`Ohio courts have explained that “[i]n contrast to express contracts or contracts implied in
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`fact, obligations recognized pursuant to a theory of unjust enrichment arise by operation of law
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`and do not depend upon the intentions of the parties.” Shaw v. J. Pollock & Co., 82 Ohio App.
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`3d 656, 662 (1992) (internal citations omitted). A contract implied in law does not require a
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`meeting of the minds. See Legros, 44 Ohio St. 3d. at 7. A claim for unjust enrichment in this
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`context “depends on nothing more than the unauthorized use of the work.” Wrench, 256 F.3d at
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`459. Here, Compass’s unjust enrichment claims against Total Cleaning, Trinity, and Shirk &
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`O’Donovan are based on contracts implied in law. Indeed, it is solely the unauthorized use of
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`Plaintiff’s work on which its claims against these Defendants are based. Importantly, “an action
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`based on a contract implied in law requires no extra element in addition to an act of reproduction,
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`performance, distribution or display,” id.; nor has Compass alleged any such additional element
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`that would preclude preemption. Thus, Plaintiff’s claims for unjust enrichment brought against
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`Total Cleaning, Trinity, and Shirk & O’Donovan are preempted under 17 U.S.C. § 301.
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`Compass’s unjust enrichment claim against the McDermotts, however, is less clear cut.
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`Although contracts implied in fact may survive the preemption equivalency analysis, see Murray
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`Hill, 264 F.3d at 638, since they “require[] the extra element of a promise to pay for the use of
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`the work which is implied from the conduct of the parties,” Wrench, 256 F.3d at 459, this is not
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`what Compass alleges. Rather, in its Complaint, Compass asserts that it created the home design
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`with the “understanding that the McDermotts would contract with it for the construction of a
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`home based upon that design.” (Doc. 2 at ¶ 14). While Compass may have drafted the home
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`design with a hope of contracting with the McDermotts, such belief does not constitute a promise
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`to pay. Without the inclusion of the “essential element of expectation of compensation, which is
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`an element not envisioned by § 106,” Plaintiff’s claim is precluded. Wrench, 256 F.3d at 459
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`(finding that appellants’ implied in fact contract claim was not preempted based on the inclusion
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`of the promise to pay). As such, Compass’s claim against the McDermotts for unjust enrichment
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`is preempted under 17 U.S.C. § 301.
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`Count II of Plaintiff’s Complaint against Total Cleaning, the McDermotts, Trinity, and
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`Shirk & O’Donovan is DISMISSED.
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`2. Conversion
`The tort of conversion in Ohio “might arise from the exercise of a dominion over
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`[another’s property] in exclusion of the rights of the owner, or withholding [another’s property]
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`from his possession under a claim inconsistent with his rights.” Balt. & Ohio R.R. v. O’Donnell,
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`49 Ohio St. 489 (1892). “The elements of a conversion claim are: (1) plaintiff’s ownership or
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`right to possession of the property at the time of the conversion; (2) defendant’s conversion by a
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`wrongful act or disposition of plaintiff’s property rights; and (3) damages.” NPF IV, Inc. v.
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`Transitional Health Servs., 922 F. Supp. 77, 81 (S.D. Ohio 1996).
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` Defendants each argue that Plaintiff’s conversion claim is preempted under the
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`Copyright Act. Much like the argument presented in opposition of Count II, Defendants contend
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`that Plaintiff has failed to allege an extra element in its conversion claim that would defeat
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`preemption. In response, Plaintiff alleges that Defendants converted Plaintiff’s tangible personal
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`property along with its intellectual property. Plaintiff emphasizes Defendants’ use of the design,
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`stating that Defendants did more than simply copy it.
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`Plaintiff has not alleged an additional element in its conversion claim that would preclude
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`preemption. Plaintiff claims that Defendants “wrongfully converted,” “creat[ed] and
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`distribut[ed] the Infringing Plans,” “construct[ed] the Residence based upon those plans,” and
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`“[used] the Copyrighted Compass Design in promotional materials.” (Doc. 2 at ¶ 46). Each of
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`those actions states a claim under § 106. See Murray Hill, 264 F.3d at 637. Without more,
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`Plaintiff’s claim for conversion falls within the exclusive rights set forth in § 106. Plaintiff’s
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`conversion claim is, therefore, preempted under 17 U.S.C. § 301. Count III is DISMISSED as
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`to Defendants the McDermotts, Total Cleaning, Trinity, and Shirk & O’Donovan.
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`V. CONCLUSION
`For the above reasons, Defendants’ Motions (Doc. 16; Doc. 20; Doc. 24; Doc. 25) are
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`DENIED in part, and GRANTED in part. Counts II and III are DISMISSED as to Defendants
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`the McDermotts, Total Cleaning, Trinity, and Shirk & O’Donovan. Plaintiff is hereby
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`ORDERED to file an Amended Complaint with its copyright registration attached, in light of
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`this Opinion.
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`IT IS SO ORDERED.
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`Dated: March 26, 2014
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` s/Algenon L. Marbley
`ALGENON L. MARBLEY
`UNITED STATES DISTRICT JUDGE
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