APPENDIX TABLE OF CONTENTS
`
`Opinion of the Eleventh Circuit
`(June 20, 2019)...................
`
`Order Adopting Report and Recommendation
`(August 8, 2018).........................................
`
`Report and Recommendation on Defendant’s
`Motion to Dismiss (June 28, 2018).........
`Complaint
`(March 19, 2018)...
`Complaint
`(January 16, 1990)
`
`Relevant Constitutional Provision
`
`la
`
`8a
`
`10a
`
`23a
`
`42a
`
`49a
`
`
`
`Opinion of the Eleventh Circuit
`(June 20, 2019)...................
`
`Order Adopting Report and Recommendation
`(August 8, 2018).........................................
`
`Report and Recommendation on Defendant’s
`Motion to Dismiss (June 28, 2018).........
`Complaint
`(March 19, 2018)...
`Complaint
`(January 16, 1990)
`
`Relevant Constitutional Provision
`
`la
`
`8a
`
`10a
`
`23a
`
`42a
`
`49a
`
`
`
`App.la
`
`OPINION OF THE ELEVENTH CIRCUIT
`(JUNE 20, 2019)
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE ELEVENTH CIRCUIT
`
`MIMI KORMAN,
`
`Plain tiff-Appellan t,
`
`v.
`
`JULIO IGLESIAS,
`
`Defendan t-Appellee.
`
`No. 18-13772
`D.C. Docket No. l:18-cv-21028-KMW
`Appeal from the United States District Court
`for the Southern District of Florida
`Before: MARTIN, NEWSOM, and
`BRANCH, Circuit Judges.
`
`PER CURIAM:
`This is not the first lawsuit that Mimi Korman
`has filed against Julio Iglesias over his 1978 song
`“Me Olvide de Vivir.”
`In 1990, Korman’s first federal suit sought dam
`ages in tort for Iglesias’s theft of the song. She
`alleged that she co-authored with the song with him
`but he never paid her share of the royalties from it.
`
`
`
`App.2a
`
`In that litigation, Korman gave a deposition detailing
`the collaborative process by which she and Iglesias
`had co-written the song, as well as a sworn affidavit
`to that effect. The district court accepted as true
`Korman’s assertion of co-authorship but rejected her
`tort claims as time-barred by the statute of limitations.
`Korman v. Iglesias, 825 F. Supp. 1010, 1016-17 (S.D.
`Fla. 1993), affd, 43 F.3d 678 (llth Cir. 1994) (mem.).
`In the present action, a copyright suit,l Korman
`has changed her tune. She now alleges that “Korman
`alone authored the Work.” Compl. U 11. Following
`Iglesias’s motion to dismiss, the district court took
`judicial notice of the court orders and Korman’s
`deposition and affidavit in the earlier litigation. The
`court found that judicial estoppel barred her new
`claim because Korman had previously asserted that
`she is the co-author, not the sole author, of the song. 2
`Although Korman responded that her earlier position
`was a mistake based on Iglesias’s fraudulent
`
`1 The Copyright Act’s three-year statute of limitations restarts
`each time a work is republished. See Petrella v. Metro-
`Goldwyn-Mayer, Inc., 572 U.S. 663, 671 (2014) (citing 17 U.S.C.
`§ 507(b).
`2 These facts matter because the Copyright Act considers a
`“joint work” an inseparable “unitary whole,” 17 U.S.C. § 101,
`and authors of a joint work “are coowners of copyright in the
`work,” id. § 201(a). Each joint author therefore “automatically
`acquires an undivided ownership in the entire work.” 1 Nimmer
`on Copyright § 6.03 (2018). As a result, “an action for
`infringement between joint owners will not lie because an
`individual cannot infringe his own copyright.” Weissmann v.
`Freeman, 868 F.2d 1313, 1318 (2d Cir. 1989).
`
`
`
`App.3a
`
`representations and her counsel’s advice, the district
`court dismissed the copyright claim with prejudice.3
`We review a district court’s decision to apply
`judicial estoppel for an abuse of discretion. Slater v.
`U.S. Steel Corp., 871 F.3d 1174, 1180 n.4 (llth Gir.
`2017) (en banc). Judicial estoppel is an equitable
`doctrine intended to protect the integrity of the courts
`from “parties who seek to manipulate the judicial
`process by changing their legal positions to suit the
`exigencies of the moment.” Id. at 1176. The rule of
`judicial estoppel is that, “where a party assumes a
`certain position in a legal proceeding, and succeeds
`in maintaining that position, he may not thereafter,
`simply because his interests have changed, assume a
`contrary position, especially if it be to the prejudice of
`the party who has acquiesced in the position formerly
`taken by him.” Davis v. Wakelee, 156 U.S. 680, 689
`(1895). Judicial estoppel may be applied when the
`plaintiff “took a position under oath in the [prior]
`proceeding that was inconsistent with the plaintiffs
`pursuit of the [present] lawsuit” and she thus “intended
`to make a mockery of the judicial system.” Slater,
`871 F.3d at 1180. We typically also consider whether
`the inconsistency is clear, whether the party had
`success in persuading the earlier court to accept the
`position, and whether an unfair advantage or detriment
`would accrue in the present litigation if not estopped.
`Id. at 1181 (citing New Hampshire v. Maine, 532 U.S.
`742, 750-51 (2001)).
`
`3 Korman also alleged a claim under the Florida Deceptive and
`Unfair Trade Practices Act, Fla. Stat. § 501.201 et seq., which
`the district court dismissed without prejudice. Korman has filed
`this appeal rather than amending her complaint, and she raises
`no FDUTPA issues on appeal.
`
`
`
`App.4a
`
`Korman challenges the application of judicial
`estoppel to her copyright claim on three main grounds.
`First, she argues that a court may not make a finding
`of intent “to make a mockery of the judicial system”
`without discovery, citing various nonprecedential
`decisions. We disagree. Though there may be instances
`in which the plaintiffs intent is not clear from the
`pleadings, this is not one of them. The clear assertion
`of sole authorship on the face of Korman’s complaint,
`in light of her previous allegations, is the epitome of
`‘“the old sporting theory of justice’ or the use of the
`federal courts as a forum for testing alternate legal
`theories seriatim.” Fla. Evergreen Foliage v. E.I.
`DuPont de Nemours & Co., 470 F.3d 1036, 1042 (llth
`Cir. 2006). Her affirmative change of position plainly
`reflects “cold manipulation and not an unthinking or
`confused blunder.” Slater, 871 F.3d at 1181 (quoting
`Johnson Serv. Co. v. Transamerica Ins. Co., 485 F.2d
`164, 175 (5th Cir. 1973)).
`Second, Korman argues that considering her 1992
`deposition and 1993 affidavit was improper without
`converting Iglesias’s motion to dismiss into a motion
`for summary judgment and entering those documents
`into evidence. See Fed. R. Civ. P. 12(d) (“If, on a motion
`under Rule 12(b)(6). . . matters outside the pleadings
`are presented to and not excluded by the court, the
`motion must be treated as one for summary judgment
`under Rule 56”) We disagree. Our Court has
`articulated an exception to Rule 12(d)’s conversion
`provision when considering materials attached to a
`motion to dismiss that are both central to the plaintiffs
`claim and undisputed. See Day v. Taylor, 400 F.3d
`1272, 1276 (llth Cir. 2005). Korman’s earlier state
`ments on the subject of the authorship of the song
`
`
`
`App.5a
`
`are certainly central here, and neither party disputes
`the authenticity of her deposition and affidavit. Their
`consideration was thus within the discretion of the
`district court.
`Third, Korman argues that her prior statements
`of co-authorship are not materially or legally
`inconsistent, because they were the result of Iglesias’s
`fraudulent inducements. Again, we disagree. Whatever
`promises Iglesias may have made to Korman to induce
`her to work on the song, her 1992 deposition con
`sistently portrays a collaborative co-writing process.
`That testimony is plainly and pervasively inconsistent
`with Korman’s present claim of sole authorship. As
`she testified, that process began with Iglesias giving
`Korman handwritten notes of his early ideas for the
`song; the two then met together at least eight times
`to work on the lyrics; and the final lyrics involved
`further changes to what Korman had felt was her final
`contribution. Korman even spent a significant portion
`of the deposition going through the song line by line,
`identifying which specific lyrics were hers and which
`were Iglesias’s. Similarly, Korman’s 1993 affidavit
`avers under oath that “Mr. Iglesias and I worked
`together for about two weeks and both contributed to
`the adaptation. . . . There is no question that I am a
`co-author of this song along with Mr. Iglesias.” Although
`Korman now asserts that she claimed that she and
`Iglesias were co-authors only because Iglesias said
`they were, the substance of her testimony does not
`support her new claim of sole authorship. The district
`court reasonably rejected Korman’s attempts to
`harmonize her previous position on the song with her
`present one.
`
`
`
`App.6a
`
`In sum, the district court did not abuse its dis
`cretion when it invoked the flexible, equitable
`doctrine of judicial estoppel here. “‘Equity eschews
`mechanical rules’ and ‘depends on flexibility.’” Slater;
`871 F.3d at 1187 (quoting Holmberg v. Armbrecht, 327
`U.S. 392, 396 (1946)). We affirm the district court’s
`consideration of “all facts and circumstances in
`evaluating the plaintiffs intent,” id., as well as its ex
`ercise of its discretion in defense of the integrity of
`the judicial process. Korman’s current position is
`clearly inconsistent with her earlier one, which was
`fully accepted by the 1990s district court. Although
`that acceptance did not result in success for Korman,
`allowing her to proceed with her new position would
`still create the perception that the first court was
`misled. Allowing Korman’s new position would also
`give her an unfair advantage, granting her a second
`chance to litigate a timeworn claim. See generally
`New Hampshire, 532 U.S. at 750-51. The district court
`was entitled to defend itself against Korman’s attempt
`to circumvent the time bar by asserting diametrically
`opposed facts. The balance of equities here favors
`barring Korman’s present complaint in order to “protect
`the judiciary, as an institution, from the perversion
`of judicial machinery.” See Edwards v. Aetna Life
`Ins. Co., 690 F.2d 595, 599 (6th Cir. 1982).
`Finally, we note that Iglesias has moved for the
`sanction of attorney’s fees. See Fed. R. App. P. 38 (“If
`a court of appeals determines that an appeal is
`frivolous, it may.. . award just damages and single
`or double costs to the appellee.”). Although we find
`reasonable the district court’s conclusion that Korman
`intended to make a mockery of the judicial system,
`
`
`
`App.7a
`
`we do not find Korman’s appeal of that decision patently
`frivolous.
`Accordingly, we AFFIRM the dismissal with pre
`judice of Korman’s copyright claim, and we DENY
`Iglesias’s Rule 38 motion for attorney’s fees.
`
`
`
`App.8a
`
`ORDER ADOPTING REPORT AND
`RECOMMENDATION
`(AUGUST 8, 2018)
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`MIMI KORMAN,
`
`Plaintiff,
`
`v.
`
`JULIO IGLESIAS,
`
`Defendant.
`
`Case No. 18-21028-CIV-WILLIAMS
`Before: Kathleen M. WILLIAMS,
`United States District Judge.
`
`THIS MATTER is before the Court on Magistrate
`Judge Edwin G. Torres’s Report and Recommendation
`(DE 36) (the “Report”) regarding Defendant’s motion
`to dismiss (DE 16). The Report recommends that
`Defendant’s motion be granted in part. Plaintiff filed
`objections to the Report, (DE 40), to which Defendant
`filed a response (DE 42), to which Plaintiff filed a
`reply (DE 45). Defendant also filed limited objections
`to the Report. (DE 41). Upon an independent review
`of the Report, the Parties’ objections, the record, and
`applicable case law, it is ORDERED AND ADJUDGED
`that:
`
`
`
`App.9a
`
`1.
`
`3.
`
`4.
`
`2.
`
`The Report is AFFIRMED and the analysis
`contained in the Report (DE 36) is ADOPTED
`and incorporated herein by reference.
`Defendant’s motion to dismiss (DE 16) is
`GRANTED.
`Defendant’s motion for judicial notice (DE
`17) is GRANTED.
`Plaintiff may file an amended complaint
`only as to her FDUTPA claim within 14
`days of the date of this Order. All other
`claims are DISMISSED WITH PREJUDICE
`for the reasons set forth in the Report.
`DONE AND ORDERED in chambers in Miami,
`Florida, this 8th day of August, 2018.
`
`/s/ Kathleen M. Williams
`United States District Judge
`
`
`
`App.lOa
`
`REPORT AND RECOMMENDATION ON
`DEFENDANT’S MOTION TO DISMISS
`(JUNE 28, 2018)
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`
`MIMI KORMAN,
`
`Plaintiff,
`
`v.
`
`JULIO IGLESIAS,
`
`Defendant
`
`Case No. 18-21028-CIV-WILLIAMS/TORRES
`Before: Edwin G. TORRES,
`United States Magistrate Judge.
`
`This matter is before the Court on Julio Iglesias’s
`(“Defendant”) Motion to Dismiss with prejudice
`(‘Motion”) [D.E. 16] Mimi Korman’s (“Plaintiff’) Com
`plaint. [D.E. l]. More specifically, Defendant moves
`to dismiss pursuant to Federal Rule of Civil Proce
`dure 12(b)(6), arguing that Plaintiffs Complaint fails
`to state claims under the Copyright Act and Florida
`Deceptive and Unfair Trade Practices Act (“FDUTPA”).
`After careful consideration of the Motion, Response,
`Reply, all relevant authorities, and for the reasons dis
`cussed below, Defendant’s Motion to Dismiss this action
`
`
`
`App.lla
`
`should be GRANTED in part, with leave for Plaintiff
`to amend only her FDUTPA claim.
`
`I. Background
`In May of 1978, Defendant asked Plaintiff to write
`Spanish lyrics for a popular French song Defendant
`intended to record. Defendant told Plaintiff that he
`would pay her 33% of the song’s royalties for her
`work. Shortly thereafter, Plaintiff wrote the Spanish
`lyrics of the song “Me Olvide De Vivir” (the “Song”).
`Defendant first released the Song in 1978. In the
`forty years since, Defendant has reproduced, dis
`tributed, and published the Song at least 100 times
`in various formats. But Plaintiff believes that she
`alone authored the lyrics of the Song and never
`assigned her copyright of the lyrics to Defendant. She
`further alleges that Defendant has enjoyed generous
`profits from his unauthorized use of the Song and
`that, as a result, she has suffered damages.
`To that end, on March 19, 2018, Plaintiff initiated
`a Complaint against Defendant, seeking damages and
`injunctive relief under both the Copyright Act and
`FDUTPA. Specifically, Plaintiff alleges that Defendant
`infringed on Plaintiffs copyright, most recently in
`2017 when Defendant allegedly participated in the
`publication and distribution of the Song on Defendant’s
`compilation album “The Real... Julio Iglesias.” Plain
`tiff also alleges that Defendant’s unauthorized use of
`the Song constitutes “unfair methods of competition
`and unfair or deceptive acts and practices,” in violation
`of FDUTPA.
`Defendant, in response, moved to dismiss Plaintiffs
`claim on April 23, 2018. [D.E. 16]. Defendant argues
`that the doctrines of res judicata and collateral
`
`
`
`App.l2a
`
`estoppel preclude Plaintiff from asserting her copyright
`infringement claim because Plaintiff and Defendant
`have twice before litigated this dispute—once in Federal
`Court in 1993, and again in state court in 2015. Id.
`Defendant also contends that Plaintiff has failed to
`state a cause of action under FDUTPA and that, to
`the extent her FDUTPA claim is legitimate, it is pre
`empted by the Copyright Act. Id. Accordingly, Defend
`ant requests that we dismiss Plaintiffs Complaint
`with prejudice. [D.E. 16].
`II. Legal Standard
`The Federal Rules of Civil Procedure require a
`complaint to contain “a short and plain statement of
`the claim showing that the pleader is entitled to
`relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to
`dismiss, a complaint must contain sufficient factual
`matter, accepted as true, to ‘state a claim to relief
`that is plausible on its face.”’ Ashcroft v. Iqbal, 556
`U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
`Twombly, 550 U.S. 544, 570 (2007)). Although this
`pleading standard “does not require ‘detailed factual
`allegations,’... it demands more than an unadorned,
`the-defendant-unlawfully-harmed-me accusation.” Id.
`(quoting Twombly, 550 U.S. at 555). Pleadings must
`contain “more than labels and conclusions, and a
`formulaic recitation of the elements of a cause of
`action will not do.” Twombly, 550 U.S. at 555. Indeed,
`“only a complaint that states a plausible claim for
`relief survives a motion to dismiss.” Iqbal, 556 U.S.
`at 679 (citing Twombly, 550 U.S. at 556). To meet
`this “plausibility standard,” a plaintiff must “plead[ ]
`factual content that allows the court to draw the
`reasonable inference that the defendant is liable for
`
`
`
`App.l3a
`
`the misconduct alleged.” Id. at 678 (citing Twombly,
`550 U.S. at 556).
`When reviewing a motion to dismiss, a court must
`construe the complaint in the light most favorable to
`the plaintiff and take all factual allegations contained
`therein as true. See Brooks v. Blue Cross & Blue Shield
`of Fla., Inc., 116 F.3d 1364, 1369 (llth Cir. 1997).
`Under normal circumstances, a court’s review of a
`motion to dismiss is limited to the four corners of the
`complaint. St. George v. Pinellas County, 285 F.3d
`1334, 1337 (llth Cir. 2002). Yet, in certain circum
`stances, a court may also consider materials outside
`of the complaint. See Day v. Taylor, 400 F.3d 1272,
`1276 (llth Cir. 2005). In looking to these external
`materials, ordinarily a court must convert the motion
`to dismiss into a motion for summary judgment. See
`Fed. R. Civ. P. 12(d). However, a court may consider
`a document attached to a motion to dismiss without
`converting it to one for summary judgment if the
`attached document is (l) central to the plaintiffs
`claim and (2) undisputed. Horsley v. Feldt, 304 F.3d
`1125, 1134 (llth Cir. 2002). In this context,
`“undisputed” means that the authenticity of the
`document is not challenged. Id.
`
`III. Analysis
`
`A. Copyright Infringement Claim
`
`1. Judicial Notice
`The Federal Rules of Evidence provide that “[a]
`court may judicially notice a fact that is not subject
`to reasonable dispute [if] it: (l) is generally known
`within the trial court’s territorial jurisdiction; or (2)
`
`
`
`App.l4a
`
`can be accurately and readily determined from sources
`whose accuracy cannot reasonably be questioned.” Fed.
`R. Evid. 201(b). Furthermore, “[t]he court may take
`judicial notice at any stage of the proceeding.” Fed.
`R. Evid. 201(d).
`Pursuant to Federal Rule of Evidence 201, Defend
`ant requests that in considering this Motion the Court
`take judicial notice of the following four documents:
`(l) Plaintiffs 2015 State Court Complaint; (2) Plain
`tiffs Deposition from the 1993 Federal Court case;
`(3) Plaintiffs Affidavit from the 1993 Federal Court
`case; and (4) court orders from the 1993 Federal Court
`case. [D.E. 17].l We will take judicial notice of the
`first three documents because each contains informa
`tion regarding the authorship of the Song—a fact that
`is undoubtedly central to Plaintiff s copyright infringe
`ment claim—and Plaintiff has not disputed the authen
`ticity of those documents. See Horsley, 304 F.3d at
`1134.
`Likewise, we will take judicial notice of the court
`orders from the 1993 case between Plaintiff and
`Defendant. Public records are among the permissible
`facts that a district court may consider on a motion to
`dismiss. See Universal Express, Inc. v. U.S. S.E.C.,
`177 F. App’x 52, 53 (llth Cir. 2006) (quoting Stahl v.
`U.S. Dep’t ofAgric., 327 F.3d 697, 700 (8th Cir. 2003)
`(“The district court may take judicial notice of public
`records and may thus consider them on a motion to
`dismiss.”)). As court orders fall within the definition
`of what constitutes a public record, we will consider
`them in ruling on Defendant’s Motion. See Baloco v.
`Drummond Co., 767 F.3d 1229, 1245 (llth Cir. 2014)
`
`1 Defendant attached the first three documents to his Motion.
`
`
`
`App.l5a
`
`(taking judicial notice of depositions and declarations
`from parties’ prior litigation); see also Horne v.
`Potter, 392 F. App’x 800, 802 (llth Cir. 2010) (holding
`that district court properly took judicial notice of
`documents from parties’ prior litigation); Turner v.
`AMICO, No. CV-15-BE-1202-S, 2015 WL 7770232, at *7
`(N.D. Ala. Dec. 3, 2015) (taking judicial notice of
`statements made by plaintiff under penalty of perjury
`in parties’ prior litigation).
`2. Judicial Estoppel
`The doctrine of judicial estoppel bars Plaintiff
`from bringing her copyright infringement claim against
`Defendant. The Eleventh Circuit has explained that
`“(jjudicial estoppel is an equitable doctrine invoked
`at the court’s discretion, designed ‘to protect the
`integrity of the judicial process.”’ Transamerica Leasing,
`Inc. v. Inst, of London Underwriters, 430 F.3d 1326,
`1335 (llth Cir. 2005) (quoting New Hampshire v.
`Maine, 532 U.S. 742, 749 (2001)). Courts apply this
`doctrine “to prevent a party from asserting a claim in
`a legal proceeding that is inconsistent with a claim
`taken by that party in a previous proceeding.” Id. And
`while “[t]he circumstances under which judicial estop
`pel may appropriately be invoked are probably not
`reducible to any general formulation of principle,” the
`Supreme Court has outlined three factors for courts to
`consider when determining the doctrine’s applicabil
`ity. New Hampshire, 532 U.S. at 750-51.
`First, a party’s later position must be “clearly
`inconsistent” with its earlier position. Id. at 750
`(quoting United States v. Hook, 195 F.3d 299, 306
`(7th Cir. 1999)). Second, courts regularly ask whether
`the party has been successful in persuading a court
`
`
`
`App.l6a
`
`to accept that party’s earlier position, so that judicial
`acceptance of the later position would create “the
`perception that either the first or the- second court
`was misled.” Id. (quoting Edwards v. Aetna Life Ins.
`Co., 690 F.2d 595, 599 (6th Cir. 1982)). Third, courts
`consider whether the party seeking to assert an
`inconsistent position “would derive an unfair advantage
`or impose an unfair detriment on the opposing party
`if not estopped.” Id. at 751.
`In the Eleventh Circuit, courts consider two
`additional factors. See Transamerica Leasing, Inc.,
`430 F.3d at 1335. “[F]irst, it must be established that
`the allegedly inconsistent positions were made under
`oath in a prior proceeding; and, second, the inconsist
`encies must have been calculated to make a mockery
`of the judicial system.” Id. Notwithstanding these
`factors, the Supreme Court has made clear that the
`applicability of judicial estoppel does not rest on
`“inflexible prerequisites” or an “exhaustive formula.”
`New Hampshire, 532 U.S. at 751. Thus, a court may
`consider the unique facts and circumstances of each
`case when deciding on the applicability of the doctrine.
`See id.
`In this case, we must accept as true Plaintiffs
`claim that she is the sole author of the Song. See
`Brooks, 116 F.3d at 1369 (in ruling on motion to dis
`miss, courts must take factual allegations of com
`plaint as true). However, we must also take judicial
`notice of Plaintiffs 2015 State Court Complaint,
`Plaintiffs Deposition from the 1993 Federal Court
`case, Plaintiffs Affidavit from the 1993 Federal
`Court case, and court orders from the 1993 Federal
`Court case. In considering these documents together,
`
`
`
`App.l7a
`
`we find that Plaintiff is judicially estopped from
`asserting here that she is the sole author of the Song.
`In her 2015 State Court Complaint, Plaintiff
`declared eight times that she and Defendant were either
`“co-authors” or “co-owners” of the Song. [D.E. 16].
`Furthermore, in her 1993 Deposition, Plaintiff admitted
`that she was the “secondary author” of the Song, and
`she identified Defendant as either the sole author or
`co-author of seven lines of the Song. [D.E. 31]. Plaintiff
`also stated in her 1993 Affidavit that “[t]here is no
`question that I am a co-author of this song along
`with [Defendant].” [D.E. 16]. In addition, court orders
`from the 1993 litigation confirm Plaintiffs prior
`sworn positions. In that case, the court relied on
`those positions and held that the parties were “co
`authors of the controverted song” and that as such,
`Plaintiff could not bring an infringement claim under
`17 U.S.C. § 501. [D.E. 16]; Korman v. Iglesias, 736 F.
`Supp. 261, 264 (S.D. Fla. 1990) (holding that co-authors
`of a copyrighted work may not bring an infringement
`claim against each other).
`But here, she attempts to do just that. Three
`years and a full 180 degrees later, Plaintiff now con
`tends that she is the sole author of the Song. Plaintiff
`justifies the discrepancy by arguing that the parties
`are not true “co-authors” within the meaning of the
`Copyright Act. [D.E. 23]. In doing so, Plaintiff seeks
`to reframe the issue of authorship as a legal ques
`tion, rather than a factual question, in an effort to ex
`cuse her prior positions as merely mistaken legal con
`clusions. But by Plaintiffs own admission, “whether a
`contribution is independently copyrightable is a ques
`tion of fact.” See D.E. 23 (emphasis added). Indeed, the
`classic case of judicial estoppel arises when a litigant
`
`
`
`App.l8a
`
`asserts inconsistent statements of fact or adopts
`inconsistent positions on combined questions of fact
`and law. Patriot Cinemas, Inc. v. General Cinemas
`Corp., 834 F.2d 208, 214 (1st Cir. 1987)2
`Having failed on her earlier claim, it appears that
`Plaintiff now seeks to “deliberately change [ ] positions”
`in an effort to take advantage of “the exigencies of
`the moment.” See New Hampshire, 532 U.S. at 743.
`Clearly, her prior statements that she and Defendant
`were co-authors of the Song directly contradict her
`current position that she is the sole author of the
`Song. Both conclusions cannot be true. See Patriot
`Cinemas, 834 F.2d at 214 (judicial estoppel barred
`plaintiff from claiming he was both an employee and
`not an employee of defendant). And, her inconsistent
`prior positions were made under oath—in both a
`deposition and an affidavit—which satisfies the first
`factor outlined by the Eleventh Circuit with regard to
`judicial estoppel. See Transamerica Leasing, Inc.,
`430 F.3d at 1335.
`Likewise, it appears that Plaintiffs calculated
`change of position was undertaken in an effort to
`“make a mockery of the judicial system.” See id. While
`discerning Plaintiffs intent might ordinarily prove a
`difficult task on a motion to dismiss, the record before
`
`2 The Eleventh Circuit has not distinguished between issues of
`fact and law when ruling on the applicability of judicial
`estoppel. See United Kingdom v. United States, 238 F.3d 1312,
`1324 (llth Cir. 2001) (holding merely that judicial estoppel
`applies to calculated assertion of divergent sworn positions).
`Thus, regardless of whether we classify the authorship of the
`Song as an issue of fact or as an issue of mixed fact and law,
`judicial estoppel still applies. See Patriot Cinemas, Inc., 834
`F.2d at 214.
`
`
`
`App.l9a
`
`us makes a compelling case that Plaintiffs change of
`position arose out of (l) a calculated attempt to cir
`cumvent prior court rulings (2) in order to gain an
`unfair advantage over Defendant. Twice before, Plain
`tiff has claimed before a court that she and Defendant
`are co-authors of the Song. We will not turn a blind
`eye to these previous statements, especially when the
`most recent claim arose just three years prior to the
`commencement of this litigation, and Plaintiff suc
`ceeded in persuading this Court to accept her “co
`author” position in the 1993 action. See Korman, 736
`F. Supp. at 264.
`If we take Plaintiffs contention that she is the
`sole author of the Song at face value, as we must on a
`motion to dismiss, then—as explained above—she is
`judicially estopped from asserting her claim here; to
`allow otherwise would create “the perception that
`either the [1993 court] or [this] court was misled.”
`See New Hampshire, 532 U.S. at 750. On the other
`hand, if we grant Plaintiff leave to amend her
`Complaint to state that she and Defendant are co
`authors of the Song, then it becomes impossible to
`state a claim under the Copyright Act. See Korman,
`736 F. Supp. at 264. (holding that co-authors of a
`copyrighted work may not bring an infringement claim
`against each other). No matter what factual allegations
`Plaintiff attempts to assert, she simply cannot state
`a plausible claim for relief under the Copyright Act.
`Accordingly, the Court should GRANT with prejudice
`Defendant’s Motion to Dismiss Count I.
`B. FDUTPA Claim
`Defendant also moves to dismiss Plaintiffs
`FDUTPA claim, alleging that Plaintiff “has not asserted
`
`
`
`App.20a
`
`any facts which support a claim under FDUTPA[D.E.
`16]. Defendant also argues that Plaintiff has merely
`repackaged her copyright infringement claim under a
`different name and a different statute, and that in
`doing so, failed to assert additional facts avoiding
`preemption by the Copyright Act. [D.E. 16]; See
`Stripteaser, Inc. v. Strike Point Tackle, LLC, No. 13-
`62742-CIV, 2014 WL 866396, at *5 (Mar. 5, 2014) (an
`extra element in addition to the acts of reproduction,
`performance, distribution, or display is required to
`avoid preemption by Copyright Act).
`Defendant’s points are well taken. In her
`Complaint, Plaintiff merely restates the same factual
`allegations contained in her copyright infringement
`claim, with the added caveat that “the acts and
`practices of Defendant. . . constitute [] unfair methods
`of competition and unfair or deceptive acts and practices
`under [FDUTPA].” [D.E. l]. But pleadings must contain
`“more than labels and conclusions, and a formulaic
`recitation of the elements of a cause of action will not
`do.” Twombly, 550 U.S. at 555. In short, Plaintiff has
`not alleged any additional facts that allow us “to
`draw the reasonable inference that the defendant is
`liable for the misconduct alleged.” Iqbal, 556 U.S. at
`678 (citing Twombly, 550 U.S. at 556).
`Furthermore, as written, Plaintiffs FDUTPA claim
`is preempted by the Copyright Act because Plaintiff
`has not alleged an “extra element” in addition to the
`acts of reproduction, distribution, or display, as is
`required. See Stripteaser, 2014 WL 866396, at *5.
`Merely employing the adjectives “unfair,” “competi
`tion,” and “deceptive” does not suffice. See id. To
`avoid preemption by the Copyright Act, Plaintiff must
`assert additional facts that qualitatively change the
`
`
`
`App.21a
`
`nature of the action. See Pegasus Imaging Corp. v.
`Northrop Grumman Corp., 2008 WL 5099691, at *4
`(M.D. Fla. Nov. 25, 2008). Thus, to state a claim
`under FDUTPA, Plaintiff may not merely restate the
`factual allegations forming the basis of her copyright
`infringement claim.
`However, Plaintiff has requested leave to amend
`her Complaint to “allege more clearly [Defendant’s]
`wrongful conduct.” [D.E. 23]. Plaintiff claims that she
`possesses additional facts that, when alleged, will
`satisfy the extra element test avoiding preemption.
`[D.E. 23]. Given Plaintiffs request and the early
`stage of this litigation, we should grant Plaintiff
`leave to amend her FDUTPA claim. In doing so,
`Plaintiff must state additional facts supporting her
`claim, instead of the mere “labels and conclusions”
`that she currently sets forth. Furthermore, Plaintiff
`must state new facts making her FDUTPA claim
`qualitatively different from her copyright infringement
`claim. Failure to do so will result in the dismissal of
`this action. Accordingly, we should GRANT without
`prejudice Defendant’s Motion to Dismiss, with leave
`for Plaintiff to amend her FDUTPA claim.
`
`III. Conclusion
`For the foregoing reasons, it is hereby RECOM
`MENDED that Defendant’s Motion to Dismiss Plain
`tiffs copyright infringement claim be GRANTED with
`prejudice and that Defendant’s Motion to Dismiss
`Plaintiffs FDUTPA claim be GRANTED without pre
`judiced Any amended complaint must be filed within
`
`3 Upon amendment, Plaintiff must also show why this Court
`should continue exercising jurisdiction over the claims following
`dismissal of Count I.
`
`
`
`App.22a
`
`fourteen (14) days from the date of the Order on the
`Motion.
`DONE AND ORDERED in Chambers at Miami,
`Florida, this 28th day of June, 2018.
`
`/s/ Edwin G. Torres
`United States Magistrate Judge
`
`'i
`
`
`
`App.23a
`
`COMPLAINT
`(MARCH 19, 2018)
`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`MIAMI DIVISION
`
`MIMI KORMAN, an individual,
`
`Plaintiff,
`
`v.
`
`JULIO IGLESIAS, an Individual,
`
`Defendant.
`
`Case No. 18.-21028-CV-WILLIAM/TORRES
`
`Plaintiff, MIMI KORMAN (“Mimi Korman”), by
`and through undersigned counsel, sues Defendant
`JULIO IGLESIAS (sometimes “Iglesias”), and alleges:
`Introduction
`Behind every great fortune lies a great crime.
`—Honore de Balzac
`1. Defendant Julio Iglesias (“Iglesias”), a musical
`legend, has enjoyed a stellar four (4) decades long
`career amassing adoration and hundreds of millions of
`dollars. This action seeks to at long last right Julio
`Iglesia’s brazen infringement, four (4) decades long,
`of the song that Plaintiff Mimi Korman authored and
`which catapulted Julio Iglesias into global musical
`
`
`
`App.24a
`
`stardom. Accordingly, this action seeks damages for
`Iglesias’ copyright infringement occurring within three
`(3) years of the filing of this action and injunctive
`relief against any present and future infringement.
`
`Nature of the Action,
`Subject Matter Jurisdiction and Venue
`2. This
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