United States District Court, E.D. Pennsylvania
R. BARCLAY SURRICK, District Judge.
Presently before the Court are the Motions to Dismiss of Defendants Darrell C. Dethlefs d/b/a Law Office of Darrell C. Dethlefs, Dethlefs-Pykosh Law Group, LLC, Darrell C. Dethlefs, and Bryan W. Shook (ECF No. 5), and David Kopp (ECF No. 6). For the following reasons, Defendants' Motions will be granted.
Plaintiff, John Allan Granger ("Granger"), is a designer and licensor of various computer programs intended for use by individuals in the real estate industry. (Compl. ¶ 24, ECF No. 1.) Defendants are Darrell C. Dethlefs d/b/a Law Office of Darrell C. Dethlefs and Darrell C. Dethlefs in an individual capacity ("Dethlefs"), Dethlefs-Pykosh Law Group, LLC, David Kopp ("Kopp"), and Bryan W. Shook ("Shook"). ( Id. at ¶¶ 2-9.)
In 1997, Granger created a computer program, the Pennsylvania Title Insurance Rate Calculator ("Rate Calculator"), designed to calculate and/or estimate the cost of real estate title insurance in the State of Pennsylvania. ( Id. at ¶ 25.) In 2002, Granger altered the Rate Calculator to reflect the title insurance rate changes in Pennsylvania. ( Id. at ¶ 26.) On or about January 1, 2002, Granger placed the Rate Calculator on an Internet web page, as a product sample for potentially interested customers. ( Id. at ¶ 28.)
On October 2, 2006, Granger's registration of a copyright for the Rate Calculator with the United States Copyright Office took effect. ( Id. at ¶ 29 & Ex. C.) Granger claims that his copyright ownership is mentioned, with a reference to him personally, on all programs and products which contain the Rate Calculator. ( Id. at ¶¶ 33, 35.) Granger also states that the Rate Calculator incorporated certain embedded notices in its source code to prevent infringement and featured a cloaking device which served the same purpose. ( Id. at ¶¶ 34, 36, 37.)
On or about April 14, 2005, Defendants placed an allegedly infringing version of the Rate Calculator ("Kopp Calculator") on a web page registered to Kopp. ( Id. at ¶ 41 & Ex. D.) On or about February 10, 2006, Defendants placed an allegedly infringing version of the Rate Calculator ("Dethlefs Calculator") on a website registered to Dethlefs. ( Id. at ¶ 42.) The Dethlefs Calculator identified Shook as the author or source of the work. ( Id. at ¶ 44.)
On or about November 30, 2007, Granger discovered the Kopp and Dethlefs Calculators, and soon thereafter filed two Digital Millennium Copyright Act ("DMCA") takedown requests for the Rate Calculators' removal. ( Id. at ¶ 47.) The Rate Calculators were removed from the two web pages. ( Id. at ¶ 49.)
On November 29, 2010, Granger filed a Complaint against Defendants alleging copyright infringement, in violation of 17 U.S.C. §§ 101 et seq. (Count I), unfair competition under the Lanham Act, in violation of 15 U.S.C. § 1125 (Count II), unfair competition under Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL"), 17 Pa. Cons. Stat. §§ 201 et seq. (Count III), circumvention of copyright protection systems, in violation of 17 U.S.C. § 1201 (Count IV), and violations of the integrity of copyright information, in violation of 17 U.S.C. § 1202 (Count V). On February 11, 2011, and February 22, 2011, Defendants filed the instant Motions to Dismiss. (Shook Mot., ECF No. 5; Kopp Mot., ECF No. 6.) On February 25, 2011, Granger filed a Response in opposition. (ECF No. 7.) On December 7, 2013, Defendants filed a motion for leave to file a supplemental motion, arguing that Granger's Complaint is barred by the doctrine of issue preclusion. (Defs.' Sup. Mot., ECF No. 12.) On December 26, 2013, Granger filed a motion for enlargement of time to respond to Defendants' supplemental motion. (ECF No. 15.) On April 22, 2014, we granted Defendants' motion for leave to supplement as well as Granger's motion for enlargement of time. (ECF No. 16.) On May 9, 2014, Granger filed a response in opposition to Defendants' supplemental motion. (Pl.'s Opp'n., ECF No. 17.) On May 29, 2014, Defendants filed a reply. (Defs.' Reply, ECF No. 18.)
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), "a pleading that states a claim for relief must contain a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Rule 12(b)(6) provides for the dismissal of a complaint, in whole or in part, for failure to state a claim upon which relief can be granted. See Fed.R.Civ.P. 12(b)(6). A motion under Rule 12(b)(6) tests the sufficiency of the complaint against the pleading requirements of Rule 8(a). "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)). A complaint that merely alleges entitlement to relief, without alleging facts that show entitlement, must be dismissed. See Fowler v. UPMC Shadyside, 578 F.3d 203, 211 (3d Cir. 2009). Courts need not accept "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements...." Iqbal, 556 U.S. at 678. "While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Id. at 679. This "does not impose a probability requirement at the pleading stage, ' but instead simply calls for enough facts to raise a reasonable expectation that discovery will reveal evidence of' the necessary element." Phillips v. Cnty. of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 556).
In determining whether dismissal of the complaint is appropriate, courts use a two-part analysis. Fowler, 578 F.3d at 210. First, courts separate the factual and legal elements of the claim and accept all of the complaint's well-pleaded facts as true. Id. at 210-11. Next, courts determine whether the facts alleged in the complaint are sufficient to show that the plaintiff has a "plausible claim for relief.'" Id. at 211 (quoting Iqbal, 556 U.S. at 679). Given the nature of the two-part analysis, "[d]etermining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense.'" McTernan v. City of York, 577 F.3d 521, 530 (3d Cir. 2009) (quoting Iqbal, 556 U.S. at 679).
Defendants argue that Granger's Complaint is barred by the doctrine of issue preclusion because Granger had a full and fair opportunity to litigate the same issue in a substantially similar case, lost at the district court level, and failed to file an appeal. (Defs.' Sup. Mot. ¶ 68.) Granger counters that we should deny Defendants' Motion because it is "premised upon allegations which are contrary to the evidence in the instant case and ...