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Parker v. Paypal, Inc.

United States District Court, E.D. Pennsylvania

August 16, 2017

GORDON ROY PARKER Plaintiff, pro se
PAYPAL, INC., Defendants



         Before this Court is a motion to dismiss filed pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(6) by Defendants, Inc., and Amazon Web Services, Inc., (together, “Moving Defendants”), [ECF 38], which seeks the dismissal of the claims for copyright infringement, unfair competition under the Lanham Act, misappropriation of likeness, breach of contract, and unjust enrichment asserted against them by pro se Plaintiff Gordon Roy Parker[1](“Plaintiff”) in the corrected amended complaint (“Corrected Amended Complaint”).[2] [ECF 47].

         Plaintiff opposes the motion. [ECF 42]. The issues raised in the motion to dismiss have been fully briefed by the parties, [3] and are now ripe for disposition. For the reasons that follow, Moving Defendants' motion to dismiss is granted.


         Plaintiff initiated this action on September 6, 2016. [ECF 1]. The complaint was amended several times. On January 24, 2017, this Court granted Plaintiff's motion for leave to amend the complaint, [ECF 46], and the Corrected Amended Complaint was docketed nunc pro tunc. [ECF 47]. In his Corrected Amended Complaint, Plaintiff asserts claims for copyright infringement, unfair competition under the Lanham Act, misappropriation of likeness, breach of contract, and unjust enrichment against Moving Defendants. [ECF 47 ¶¶ 68-108].[4]

         In the motion to dismiss, Moving Defendants argue that Plaintiff, inter alia, has failed to state a claim of copyright infringement or a claim under the Lanham Act against them, that the contract claim is preempted by the Copyright Act, 17 U.S.C. § 101, et. seq. (the “Copyright Act”), and that the remaining claims of misappropriation of likeness and unjust enrichment are barred by the Communications Decency Act, 47 U.S.C. § 223 et. seq. (the “CDA”). (Mov. Defs.' Br. at 2-9). Plaintiff opposes these contentions. These arguments will be addressed separately.

         When ruling on Moving Defendants' motion to dismiss, this Court must accept, as true, all relevant and pertinent factual allegations in the Corrected Amended Complaint and construe these facts in the light most favorable to Plaintiff. See Fowler v. UMPC Shadyside, 578 F.3d 203, 210-11 (3d Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009)). Notably, the factual allegations in Plaintiff's Corrected Amended Complaint are largely rambling and, at times, incoherent and difficult to follow. However, liberally construed, the factual allegations are summarized as follows:

On October 26, 1998, Plaintiff registered his copyright to “Outfoxing the Foxes: How to Seduce the Women of Your Dreams” (“Foxes”), a book Plaintiff published and offered for sale for $29.95. (Cor. Am. Compl. ¶ 14). On October 26, 2015, Plaintiff discovered that Foxes was being sold on, as part of an anthology of books and articles written by and for “pick up artists.” (Id. ¶¶ 15, 31-32). On that day, Plaintiff purchased a zip file from through Paypal, which processed his payment of $16.90. (Id. ¶¶ 36-37(b)). After receiving the zip file, Plaintiff discovered that it contained several copies of Foxes. (Id. ¶ 37(d)).
Thereafter, Plaintiff notified Defendants Sofield, Loki, and Paypal of the infringement. (Id. ¶¶ 39-42). In response, Defendant Loki, who Plaintiff avers is likely the same individual as Defendant Sofield, stated that he deleted Foxes from (Id. ¶ 40). Paypal “appeared” to have terminated Defendant Loki's ability to process payments from (Id. ¶ 43).
On December 10, 2015, Plaintiff noticed that the sales of the zip file had resumed. (Id. ¶ 51). The same file containing an infringing version of Foxes was also being sold in DVD format. (Id.). On that day, Plaintiff contacted Defendants PayPal and C2S, and complained of the alleged continued criminal copyright infringement and their processing payments for the sale of the infringing work. (Id. ¶ 52). On the same day, Plaintiff informed Moving Defendants that their cloud servers were hosting the infringing material. (Id. ¶ 56). Plaintiff believed that, after these communications, every party was on notice about the alleged infringement and PUA Media ceased selling the zip file and DVD through (Id. ¶ 59).
In Spring 2016, Plaintiff discovered that PUA Media was again selling Foxes in zip file and DVD format through Defendants C2S and PayPal. (Id. ¶ 60). Plaintiff ordered the DVD for $99.90, which was shipped to him by Defendant Custom CD. (Id. ¶¶ 60-61). After putting Defendants C2S and PayPal on notice of this new infringement, they stopped processing payments for PUA Media, and the website was “temporarily disabled” and remains disabled as of the filing of the Corrected Amended Complaint. (Id. ¶ 62). Plaintiff alleges that the zip file is still being stored on Moving Defendants' servers. (Id. ¶ 63). In an email dated May 27, 2016, Plaintiff contacted Moving Defendants' Chief Executive Officer Jeff Bezos to inform him that Moving Defendants' servers were hosting Plaintiff's infringed work, and to notify Moving Defendants that Plaintiff was removing his fourteen books that were being sold via the Kindle, and ended his email by telling Mr. Bezos that he would “[s]ee you in court.” (Id. ¶ 64). Moving Defendants responded to Plaintiff's email by requesting that Plaintiff comply with Moving Defendants' procedures to report potentially infringing materials consistent with the Digital Millennium Copyright Act. (Id. ¶ 65). Plaintiff makes no mention whether he complied with this request.
Contemporaneously, Plaintiff and Moving Defendants had a contract under which Moving Defendants sold Foxes on their Kindle store as a standalone book and as part of Plaintiff's Pickup Artist Library, which included six other works, priced between $2.99-$9.99. (Id. ¶¶ 97-98). Under the contract, Moving Defendants remitted 70 percent of the purchase price to Plaintiff as a royalty. (Id. ¶ 98).


         When considering a motion to dismiss for failure to state a claim under Rule 12(b)(6), the court “must accept all of the complaint's well-pleaded facts as true, but may disregard any legal conclusions.” Fowler, 578 F.3d at 210-11. The court must 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). The complaint must do more than merely allege the plaintiff's entitlement to relief; it must “show such an entitlement with its facts.” Id. (citations omitted). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct the complaint has alleged - but it has not ‘show[n]' - ‘that the pleader is entitled to relief.'” Iqbal, 556 U.S. at 679 (quoting Fed.R.Civ.P. 8(a)) (alterations in original). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements do not suffice.” Id. To survive a motion to dismiss under Rule 12(b)(6), “a plaintiff must allege facts sufficient to ‘nudge [her] claims across the line from conceivable to plausible.'” Phillips v. County of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008) (quoting Twombly, 550 U.S. at 570).

         Even though pleadings and other submissions by pro se litigants are subject to liberal construction and the court is required to accept the truth of a plaintiff's well-pleaded allegations while drawing reasonable inferences in a plaintiff's favor, Wallace v. Fegan, 455 F. App'x 137, 139 (3d Cir. 2011) (citing Capogrosso v. Sup. Ct. of N.J., 588 F.3d 180, 184 (3d Cir. 2009) (per curiam)), a pro se complaint must still “contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).


         As noted, Moving Defendants argue that Plaintiff fails to state claims for copyright infringement and unfair competition under the Lanham Act, that Plaintiff's breach of contract is preempted by the Copyright Act, and that the remaining claims asserted against them of misappropriation of likeness ...

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