IN THE UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF TENNESSEE
`NASHVILLE DIVISION
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`No. 3:18-0417
`Judge Holmes
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`NINA RAWLS
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`v.
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`PARADISE ARTISTS, INC. and
`THE ORCHARD ENTERPRISES, INC.
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`MEMORANDUM OPINION AND ORDER
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`Currently pending before the Court is Defendants’ motion to dismiss (Docket Entry
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`(“DE”) 83), to which Plaintiff has filed a response. (DE 86.) Defendants have also filed a reply to
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`Plaintiff’s response. (DE 88.) Also pending is Plaintiff’s related motion requesting that the Court
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`take judicial notice of a copyright registration (DE 87), to which Defendants have filed a
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`response. (DE 89.) This action is before the Magistrate Judge for all further proceedings pursuant
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`to the consent of the parties and referral of the District Judge in accordance with 28 U.S.C.
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`§ 636(c). (DE 97.)
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`For the reasons that follow, Defendants’ motion to dismiss (DE 83) is GRANTED IN
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`PART and Plaintiff’s motion for judicial notice (DE 87) is DENIED AS MOOT. As a result, this
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`action is DISMISSED WITHOUT PREJUDICE.
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`I. STATEMENT OF THE CASE
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`Plaintiff Nina Rawls (“Plaintiff” or “Ms. Rawls”) is the widow of recording artist Lou
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`Rawls (“Mr. Rawls”).1 Plaintiff, as the sole trustee of the Lou and Nina Rawls Trust (“Trust”),
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`1 These facts are drawn from Plaintiff’s third amended complaint. (DE 78.) For reasons
`delineated in the Court’s previous order, the title “third amended complaint” is actually a
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 1 of 13 PageID #: 1101
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`has asserted multiple claims against Defendants Paradise Artists, Inc. (“Paradise Artists”) and
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`The Orchard Enterprises NY, Inc. (“Orchard”) (collectively referred to as “Defendants”) for the
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`unauthorized use of three works: (1) Seasons 4 U, an album recorded by Mr. Rawls in 1998;
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`(2) Rawls Sings Sinatra, an album recorded by Mr. Rawls in 2003; and (3) a collection of
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`photographs taken by photographer Bonnie Schiffman in 2003 in connection with the Rawls
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`Sings Sinatra album (“the 2003 photographs”).
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` The Seasons 4 U album was released by Rawls and Brokaw Records (“Rawls and
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`Brokaw”), a company co-owned by Mr. Rawls and his manager. Counsel for Plaintiff obtained
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`copyright registration for the Seasons 4 U album in Plaintiff’s name on July 24, 2018, almost
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`three months after the instant lawsuit was commenced, the certificate of which is attached to the
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`third amended complaint. (DE 78 at 17-19.)2 Later, on November 5, 2018, counsel for Plaintiff
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`registered the copyright for Seasons 4 U in the name of the Trust.
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`Mr. Rawls registered the copyright for the Rawls Sings Sinatra album in 2003. Counsel
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`for Plaintiff obtained copyright registration for this album in the name of the Trust on
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`November 1, 2018, approximately six months after the commencement of the instant lawsuit.
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`Copyright registration for the 2003 photographs was completed and issued to Mr. Rawls
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`on June 10, 2004.
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`misnomer. (DE 77 at 1, n.1.) However, because the operative pleading is labeled as the “third
`amended complaint” (see DE 78) and the parties continue to reference the document as such, the
`Court will similarly do so.
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` Plaintiff alleges in the third amended complaint that Mr. Rawls “obtained a copyright
`registration in the [Seasons 4 U] album” in 1998 (DE 78 at ¶ 9), but admits in her response that
`the copyright was not registered until after commencement of the instant lawsuit. (DE 86 at 6.)
`As noted by Defendants, Plaintiff’s allegations have been less than consistent throughout the
`course of this litigation.
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` 2
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 2 of 13 PageID #: 1102
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`2
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`The agreement governing the Trust (“Trust agreement”) was executed by Mr. Rawls and
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`Plaintiff on March 10, 2005. That same day, Mr. Rawls and Plaintiff executed a “Grant and
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`Assignment” that assigned all of their “separate and community property” to the Trust.3 The
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`Trust agreement contains an intellectual property rights provision that states in relevant part:
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`[T]he Trustors hereby declare that they hereby transfer to the Trust all of the
`Trustors’ right, title and interest in and to either Trustor’s name, sobriquet, voice,
`signature, photograph, actual or simulated likeness, image and other personal
`identification, any and all trademarks, trade names, trade dress, service marks and
`other personal identifiers, all applications and registrations thereof and all
`goodwill symbolized thereby, all rights of publicity, all copyrights, copyright
`registrations and rights to renew, extend, cause reversion of or to terminate any
`grant of such copyright, and all rights arising under or out of any of the
`foregoing[.]
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`On May 31, 2005, Paradise Artists entered into a “Music Service Agreement” with
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`Orchard to distribute sound recordings to various digital musical platforms. Pursuant to this
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`agreement, the Seasons 4 U album was distributed to 96 digital platforms while Rawls Sings
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`Sinatra was distributed to 95 digital platforms.
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`On January 5, 2006, one day before his death, Mr. Rawls executed his Last Will and
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`Testament, which directed in relevant part that “all of the rest, residue and remainder of my
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`estate” is bequeathed to “the then acting Trustee or Trustees” of the Trust.4 On January 9, 2006,
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`Plaintiff executed a “Notice of Acceptance of Trusteeship” that memorialized her status as the
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`successor sole trustee of the Trust.
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`In February of 2018, Plaintiff discovered that the Seasons 4 U and Rawls Sings Sinatra
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`albums were available on numerous digital musical platforms, including iTunes and Spotify. The
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`3 A copy of this agreement is attached to the third amended complaint. (DE 78 at 20-22.)
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` A copy of the will is also attached to the third amended complaint. (DE 78 at 32-47.)
`3
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` 4
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`Rawls Sings Sinatra album was advertised using one of the 2003 photographs. Paradise Artists
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`and Orchard were responsible for distribution of these albums to the various digital platforms.
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`Plaintiff asserts four claims against Paradise Artists: (1) copyright infringement for
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`unauthorized licensing of both albums to Orchard for digital distribution; (2) copyright
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`infringement for unauthorized use of the 2003 photographs; (3) violation of section 43(a) of the
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`Lanham Act, 15 U.S.C. § 1125(a)(1)(A), for unauthorized use of Mr. Rawls’ name in connection
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`with the unauthorized licensing of both albums; and (4) violation of Tennessee’s right of
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`publicity, Tenn. Code Ann. § 47-25-1103, for unauthorized use of Mr. Rawls’ name and
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`photographs in connection with the unauthorized licensing of both albums.
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`Plaintiff asserts five claims against Orchard: (1) copyright infringement for unauthorized
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`digital distribution of Seasons 4 U; (2) copyright infringement for unauthorized digital
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`distribution of Rawls Sings Sinatra; (3) copyright infringement for unauthorized use of the 2003
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`photographs; (4) violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)(1)(A), for
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`unauthorized use of Mr. Rawls’ name in connection with the unauthorized distribution of both
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`albums; and (5) violation of Tennessee’s right of publicity, Tenn. Code Ann. § 47-25-1103, for
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`unauthorized distribution of both albums.
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`Based on these claims, Plaintiff seeks preliminary and permanent injunctions prohibiting
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`Defendants from further infringement of Plaintiff’s intellectual property rights, actual damages
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`pursuant to 17 U.S.C. § 504(b), or, alternatively, statutory damages pursuant to 17 U.S.C.
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`§ 504(c), as well as costs and attorney’s fees pursuant to 17 U.S.C. § 505.
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`Defendants seek dismissal on various grounds, including under Rule 12(b)(1) for lack of
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`standing and Rule 12(b)(6) for failure to state a claim. Plaintiff opposes Defendants’ motion to
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`dismiss.
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 4 of 13 PageID #: 1104
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`4
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`II. STANDARD OF REVIEW
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`A. Dismissal for Lack of Subject Matter Jurisdiction
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`A motion that alleges lack of standing under Rule 12(b)(1) is properly characterized as a
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`motion seeking dismissal for lack of subject matter jurisdiction. Hosp. Auth. of Metro. Gov’t of
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`Nashville v. Momenta Pharm, Inc., 353 F. Supp. 3d 678, 686-87 (M.D. Tenn. 2018). Such a
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`motion can attack the claim of jurisdiction on its face, or, alternatively, attack the factual basis
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`for jurisdiction. DLX, Inc. v. Kentucky, 381 F.3d 511, 516 (6th Cir. 2004). A motion representing
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`a facial attack challenges only “the sufficiency of the pleadings” and is treated akin to a
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`Rule 12(b)(6) motion, thus requiring the court to accept as true all allegations made by the
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`plaintiff. Glob. Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co., 807 F.3d 806, 810 (6th
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`Cir. 2015) (internal citation omitted).
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`B. Dismissal for Failure to State a Claim
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`To survive a motion to dismiss under Rule 12(b)(6), the complaint need only contain “a
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`short and plain statement of the claim showing that the pleader is entitled to relief.” Carrier
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`Corp. v. Outokumpu Oyj, 673 F.3d 430, 444 (6th Cir. 2012) (quoting Fed. R. Civ. P. 8(a)(2)).
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`When reviewing a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), the court must
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`“construe the complaint in the light most favorable to the plaintiff[] [and] accept all well-pleaded
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`factual allegations as true[.]” Matthew N. Fulton, D.D.S., P.C. v. Enclarity, Inc., 907 F.3d 948,
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`951-52 (6th Cir. 2018) (quoting Hill v. Snyder, 878 F.3d 193, 203 (6th Cir. 2017)).
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`Matters outside of the pleadings are generally not considered when ruling on a
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`Rule 12(b)(6) motion to dismiss. Rondigo, L.L.C. v. Twp. of Richmond, 641 F.3d 673, 680 (6th
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`Cir. 2011) (citation omitted). However, the court may consider “exhibits attached [to the
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`complaint], public records, items appearing in the record of the case and exhibits attached to
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`defendant’s motion to dismiss so long as they are referred to in the complaint and are central to
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`the claims contained therein,” without converting the motion to dismiss into a motion for
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`summary judgment. Id. at 680-81 (citing Bassett v. Nat’l Collegiate Athletic Ass’n, 528 F.3d 426,
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`430 (6th Cir. 2008)).
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`While generally prohibited from considering matters outside the pleadings in ruling on a
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`motion to dismiss, the court may consider materials that are “appropriate for the taking
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`of judicial notice” under Rule 201 of the Federal Rule of Evidence. In re Unumprovident Corp.
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`Sec. Litig., 396 F. Supp. 2d 858, 875 (E.D. Tenn. 2005) (citing Bovee v. Coopers & Lybrand
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`C.P.A., 272 F.3d 356, 360-61 (6th Cir. 2001)). Rule 201 permits the Court to take judicial notice
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`of facts that are “not subject to reasonable dispute” because they are either (1) “generally known
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`within the trial court’s territorial jurisdiction” or (2) “can be accurately and readily determined
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`by sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(b). The Court
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`may take such action on its own, but “must take judicial notice if a party requests it and the court
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`is supplied with the necessary information.” Fed. R. Evid. 201(c).
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`III. ANALYSIS
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`
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`Because standing represents a “threshold question” in any federal case, Am. Telecom Co.
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`v. Republic of Lebanon, 501 F.3d 534, 537 (6th Cir. 2007), the Court must initially determine
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`whether Plaintiff has standing to sue. The Copyright Act provides that the “legal or beneficial”
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`owner of an exclusive right is entitled to “institute an action for any infringement of that
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`particular right committed while he or she is the owner of it.” 17 U.S.C. § 501(b). To have
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`standing under this provision, the party bringing suit “must have some ownership rights over at
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`least part of the exclusive right for which he wishes to sue.” Warner/Chappell Music, Inc. v. Blue
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`Moon Ventures, No. 3:10-cv-1160, 2011 WL 662691, at *3 (M.D. Tenn. Feb. 14, 2011).
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`Plaintiff, as the party invoking federal jurisdiction, bears the burden of establishing standing.
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`Loren v. Blue Cross & Blue Shield of Mich., 505 F.3d 598, 607 (6th Cir. 2007) (citing Lujan v.
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`Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
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`Defendants contend that Plaintiff has failed to allege sufficient facts to establish standing.
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`Defendants argue that Plaintiff cannot proceed with any claims related to the Rawls Sings Sinatra
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`album since the associated copyright was not registered to the Trust until November 1, 2018,
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`several months after the initial complaint was filed. As noted by Plaintiff, however, section
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`411(a) does not require that the party bringing the infringement claim be the same individual or
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`entity that registered the work. See Huthwaite, Inc. v. Sunrise Assisted Living, Inc., 261 F. Supp.
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`2d 502, 508-09 (E.D. Va. 2003) (“[T]he plaintiff in court obviously need not be the same party
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`who initially registered the subject work.”) (internal citation omitted). See also Tang v. Hwang,
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`799 F. Supp. 499, 503-04 (E.D. Pa. 1992) (“There is no requirement under [17 U.S.C. § 411(a)]
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`that the only person who may bring an action is the person who applies for the copyright
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`registration. The law merely provides that there must be registration of the copyright claim,
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`pursuant to the Copyright Act, before an action may be instituted.”). Defendants cite no authority
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`to the contrary. Because Plaintiff alleges that Rawls Sings Sinatra was registered in 2003 and the
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`rights thereof were later transferred to her, she has standing to sue for copyright infringement.
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`The same reasoning applies to the 2003 photographs. The third amended complaint
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`alleges that these photographs were registered on June 10, 2004 and subsequently became the
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`property of the Trust in March of 2005.5 Plaintiff was not required to register the photographs in
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`5 The 2003 photographs are the subject of Plaintiff’s motion for judicial notice (see
`DE 87), which, for the reasons outlined in this memorandum opinion, is denied as moot. For
`purposes of the instant motion to dismiss, however, the Court assumes registration was
`completed on June 10, 2004.
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 7 of 13 PageID #: 1107
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`the name of the Trust prior to commencing the instant lawsuit, therefore she has standing to
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`pursue claims for copyright infringement as to those works. For these reasons, Defendants’
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`standing arguments as to these two works fail.
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`Defendants do not clearly delineate whether they seek to dismiss Plaintiffs infringement
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`claims related to the Seasons 4 U album for lack of standing or failure to state a claim.
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`References to that work are interspersed throughout Defendants’ arguments for dismissal on both
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`these grounds. To the extent that Defendants assert Plaintiff’s lack of standing to pursue
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`infringement claims as to the Seasons 4 U album, that argument appears to be based on
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`Plaintiff’s failure to demonstrate that she obtained copyright registration for Seasons 4 U in
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`1998. Defendants argue that, because Plaintiff provides only registration numbers for Seasons 4
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`U that were issued after the commencement of this action, her complaint fails to comply with
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`17 U.S.C. § 411(a)’s requirement that “preregistration or registration” of the copyright be made
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`prior to bringing any lawsuit for infringement of the copyright. Although (perhaps) framed as a
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`standing question, compliance with section 411 is not a jurisdictional requirement. Reed
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`Elsevier, Inc. v. Muchnick, 559 U.S. 154, 166-67 (2010) (concluding that the copyright
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`registration requirement of section 411(a) is a pleading requirement, not a jurisdictional one).6
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`The proper analysis is whether Plaintiff has adequately stated a claim for relief, specifically
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`whether the pleadings sufficiently demonstrate prefiling compliance with section 411(a).
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`Plaintiff acknowledges the Supreme Court’s recent decision in Fourth Estate Pub. Benefit
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`Corp. v. Wall-Street.com, LLC, which holds that registration for purposes of 17 U.S.C. § 411(a)
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`has been made “not when an application for registration is filed, but when the Register has
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`6 Nothing in the Supreme Court’s decision in the Fourth Estate case discussed in more
`detail below changes its earlier decision in Reed Elsevier that section 411 compliance is not a
`jurisdictional prerequisite.
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`registered
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`a
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`copyright
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`after
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`examining
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`a properly
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`filed
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`application.” ___ U.S.
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`___, 139 S. Ct. 881, 892, 203 L. Ed. 2d 147 (2019). Plaintiff concedes that she did not obtain
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`copyright registration of Seasons 4 U until after commencement of the lawsuit but notes that
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`numerous courts have held that submission of an amended complaint after registration is
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`completed alleviates any pleading deficiencies. However, each of the cases cited by Plaintiff
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`predates the Fourth Estate decision, which, contrary to Plaintiff’s argument otherwise, impacts
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`the Court’s analysis given that numerous cases decided after Fourth Estate hold that an amended
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`complaint cannot fix the defect caused by a claimant’s failure to obtain copyright registration
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`prior to filing suit. See, e.g., UAB “Planner 5D” v. Facebook, Inc., No. 19-cv-03132-WHO,
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`2019 WL 6219223, at *7 (N.D. Cal. Nov. 21, 2019) (“A plaintiff cannot cure its failure to meet
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`the preconditions set forth in 17 U.S.C. § 411(a) by amending its pending complaint.”); Xclusive-
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`Lee, Inc. v. Hadid, No. 19-CV-520-PKCCLP, 2019 WL 3281013, at *4 (E.D.N.Y. July 18, 2019)
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`(declining to grant claimant leave to amend complaint involving copyright that had not yet been
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`registered); Izmo, Inc. v. Roadster, Inc., No. 18-CV-06092-NC, 2019 WL 2359228, at *2 (N.D.
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`Cal. June 4, 2019) (denying Plaintiff’s attempt to amend complaint to cure its failure to register
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`copyright before suing);7 Mai Larsen Designs v. Want2Scrap, LLC, No. SA-17-CV-1084-ESC,
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`2019 WL 2343019, at *6 (W.D. Tex. June 3, 2019) (“To adopt [plaintiff’s] reasoning the Court
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`would have to hold that Fourth Estate allows a plaintiff to file a lawsuit before copyright
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`registrations have been awarded and to amend the pleadings after registration is obtained, so long
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`as the effective date (i.e., the date of application) predates the filing of the lawsuit. The Court
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`7 Like Plaintiff in this matter, the claimant in Izmo cited the court’s decision in Zito v.
`Steeplechase Films, Inc., 267 F. Supp. 2d 1022 (N.D. Cal. 2003), to argue that the filing of an
`amended complaint after registration was complete satisfied section 411(a), which prompted the
`Izmo court to question whether Zito “remains good law in light of the Supreme Court’s”
`Fourth Estate decision. Izmo, 2019 WL 2359228, at *2 (N.D. Cal. June 4, 2019).
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`cannot square this argument with the holding of Fourth Estate.”); Malibu Media, LLC v. Doe,
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`No. 18-CV-10956 (JMF), 2019 WL 1454317, at *2 (S.D.N.Y. Apr. 2, 2019) (“Plaintiff’s
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`argument would make a meaningless formality out of Fourth Estate’s requirement that an
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`application be approved prior to filing suit. Were it correct, a plaintiff could file suit at any time,
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`notwithstanding Section 411(a)’s precondition, and simply update the complaint when
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`registration finally occurred.”) Indeed, the Court agrees with the reasoning of these decisions and
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`finds that Plaintiff’s post-complaint registration of Seasons 4 U fails to comply with 17 U.S.C.
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`§ 411(a).
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`What must the Court then do upon finding that only two of the three works at issue in this
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`lawsuit satisfy section 411(a)’s registration requirement? In Fourth Estate, the Supreme Court
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`concluded that the registration requirement is “akin to an administrative exhaustion.” Fourth
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`Estate, 139 S. Ct. at 887. See also Reed Elsevier, supra at 165-66 (comparing section 411(a) to
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`“Title VII’s requirement that sex-discrimination claimants timely file a discrimination charge
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`with the EEOC”). In other areas of law, failure to exhaust administrative remedies generally
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`results in dismissal without prejudice. See, e.g., Bell v. Konteh, 450 F.3d 651, 654 (6th Cir. 2006)
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`(holding that claims brought under Prison Litigation Reform Act that did not meet administrative
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`exhaustion requirement should be dismissed without prejudice); Ravencraft v. UNUM Life Ins.
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`Co. of Am., 212 F.3d 341, 344 (6th Cir. 2000) (dismissal without prejudice appropriate when
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`dismissing an ERISA action solely for failure to exhaust administrative remedies); Thomas v.
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`Grinder & Haizlip Const., 547 F. Supp. 2d 825, 829 (W.D. Tenn. 2007) (“Dismissal without
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`prejudice is generally the appropriate remedy for a Title VII claim filed prematurely before
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`administrative remedies are exhausted.”) (internal citation omitted). This is consistent with the
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`post-Fourth Estate cases from other districts cited above, all of which except one resulted in
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`dismissal without prejudice of copyright infringement claims brought before registration was
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`completed.8
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`The body of law that has emerged in the wake of Fourth Estate strongly suggests that
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`allowing the claims related to Seasons 4 U to proceed, despite successful registration of the
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`associated copyright following commencement of this action, would “undermine the objectives
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`animating” the Fourth Estate holding. Izmo, 2019 WL 2359228, at *2. Although there is some
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`appeal to dismissing only the Seasons 4 U claims and allowing the remaining infringement
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`claims to proceed, the Court does not find a tenable outcome in dismissal of the Seasons 4 U
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`claims without prejudice and not of the claims for the other two works. See id. (“The fact that
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`[plaintiff] properly ‘commenced’ this lawsuit as to some of its copyrights does not excuse its
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`failure to comply with § 411(a) as to its other copyrights.”) (emphasis in original).9
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`8 The court in Xclusive-Lee, Inc. v. Hadid did not explicitly dismiss the subject plaintiff’s
`copyright claims with prejudice, but instead “declined to grant Plaintiff leave to amend the
`complaint to allege registration should its copyright application be approved in the future.” 2019
`WL 3281013, at *4. This is distinct from the instant matter, in which Plaintiff achieved
`registration after filing her initial complaint but before filing the first amended complaint.
`Further, the court in Xclusive-Lee appeared to contemplate that the plaintiff in that case might
`file a new action after being formally granted a registered copyright. Id., n.8
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` 9
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` The Court acknowledges its statements in a previous, non-dispositive order on
`Plaintiff’s motion to amend suggesting that the interests of judicial economy would be best
`served by simply allowing Plaintiff to amend her complaint to comply with section 411(a)
`following successful registration of the Seasons 4 U copyright. (DE 77 at 7-9). As a purely
`practical outcome, that may well still be supportable. However, in this instance at least
`practicalities yield to the law. And it is not clear that all the holdings relied upon in resolution of
`the motion to amend remain good law, at least as they pertain to the registration requirement, and
`particularly considering the substantial body of law that has developed following Fourth Estate
`(and following resolution of the motion to amend). Further, and more importantly, in ruling on
`the motion to amend, the Court expressly noted that it was not deciding Defendants’ argument
`that Plaintiff’s amendment was futile because of continuing defects in copyright registration.
`(Id. at 6.) To have resolved that issue would have required an analysis under Rule 12(b)(6). Rose
`v. Hartford Underwriters Ins. Co., 203 F.3d 417, 421 (6th Cir. 2000) (“[A] proposed amendment
`is futile only if it could not withstand a Rule 12(b)(6) motion to dismiss.”). The Court declined to
`undertake that analysis for the reasons stated in the order. (DE 77 at 6-7.) Thus, there was no
`11
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`The Court recognizes the procedural quandary implicated by this result. Outright
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`dismissal of the third amended complaint without prejudice will likely result in a newly filed
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`lawsuit, which will then require the parties to retrace their steps of almost two years only to
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`arrive at essentially the same place. The idea of such procedural hoop jumping certainly offends
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`the Court’s sense of judicial economy. However, a partial dismissal of only the infringement
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`claims related to Seasons 4 U might also result in Plaintiff simply refiling an action based solely
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`on infringement related to Seasons 4 U, at which point there would be two federal lawsuits
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`involving the same parties and the same underlying set of facts, and no savings of judicial or
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`other resources there either. On balance, dismissal of all Plaintiff’s infringement claims without
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`prejudice represents the best measured resolution.
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`For all these reasons, the Court therefore opts for compliance with Fourth Estate, and
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`because Plaintiff initiated this action without satisfying 17 U.S.C. § 411(a) as to all subject
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`works, concludes the action cannot proceed. Dismissal of the third amended complaint without
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`prejudice is the appropriate outcome. See Hallstrom v. Tillamook Cty., 493 U.S. 20, 31 (1989)
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`(“[I]n the long run, experience teaches that strict adherence to the procedural requirements
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`specified by the legislature is the best guarantee of evenhanded administration of the law.”). See
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`also Blue Book Servs., Inc. v. Farm Journal, Inc., No. 18-cv-07155, 2020 WL 419405, at *6
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`(N.D. Ill. Jan. 27, 2020) (“This Court will not disregard the procedural requirements specified by
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`the legislature; failure to comply with § 411(a) requires dismissal of this case, albeit without
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`prejudice[.]”).
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`decision on the issues raised in the instant motion to dismiss. Now the Court has fully considered
`whether the third amended complaint can survive dismissal under Rule 12(b)(6) and concludes
`that under controlling and applicable law it cannot.
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 12 of 13 PageID #: 1112
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`IV. CONCLUSION
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`For the foregoing reasons, Defendants’ motion to dismiss (DE 83) is GRANTED IN
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`PART and the instant action is DISMISSED WITHOUT PREJUDICE.10
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`It is SO ORDERED.
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`__________________________
`BARBARA D. HOLMES
`United States Magistrate Judge
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`10 Because this action is dismissed based on Plaintiff’s failure to comply with prefiling
`registration requirement of section 411, the Court need not address the remaining arguments in
`Defendants’ motion.
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`Case 3:18-cv-00417 Document 101 Filed 03/27/20 Page 13 of 13 PageID #: 1113
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