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Holbrook v. City of Pittsburgh

United States District Court, W.D. Pennsylvania

September 16, 2019

KYLE HOLBROOK, et al. Plaintiffs,
v.
CITY OF PITTSBURGH, et al. Defendants. Defendant Motion to Dismiss Work of Art Alleged Defendants

          Patricia Dodge, Magistrate Judge.

          OPINION AND ORDER

          Marilyn J. Horan, United States District Court Judge.

         This case was originally referred to United States Magistrate Judge Robert Mitchell for pretrial proceedings in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(A) and (B), and Rule 72 of the Local Rules for Magistrate Judges.[1] On February 11, 2019, the Magistrate Judge issued a Report and Recommendation, ECF No. 184, recommending granting in part and denying in part, ten motions to dismiss filed by Defendants. The parties were informed that written objections to the Report and Recommendation were due by February 25, 2019. Some of the Defendants file timely written objections, and Plaintiffs filed responses to the objections. For the reasons that follow, after de novo review, the Court will accept the Report and Recommendation in part, reject it in part, and return the matter to the Magistrate Judge with instructions.[2]

         I. BACKGROUND

         Plaintiffs Kyle Holbrook, K H Design LLC, and MLK Mural filed an Amended Complaint, ECF No. 4, asserting three claims: Count I: violation of the Visual Artists Rights Act of 1990, 17 U.S.C. § 106A ("VARA"); Count II: Breach of Contract; and Count III: Property Damage. Named as Defendants are the City of Pittsburgh; Norfolk Southern Railway, Inc.; Port Authority of Allegheny County; Borough of Wilkinsburg; The Mosites Company and The Mosites Company, Inc. ("Mosites Defendants"); East Liberty Development, Inc. and East Liberty Development Fund ("East Liberty Defendants"); Walnut Capital Development, Inc.; McCormack Baron Salazar, Inc. and McCormack Baron Management, Inc. (the "McCormack Baron Defendants"); Urban Redevelopment Authority of Pittsburgh; Sto-Rox Family Health Center and Sto-Rox Neighborhood Health Council, Inc. ("Sto-Rox Defendants"); Mukhless Mustafa; Allegheny County; Mistick Construction, Mistick Construction Co., and Mistick Construction Holding Co. ("Mistick Defendants"); and Keith B. Key Enterprises, LLC; and KBK Enterprises, LLC.[3]

         Defendant Mukhless Mustafa filed an Answer to the Amended Complaint. ECF No. 136. The East Liberty Defendants and Walnut Capital Development, Inc. have not filed a response to the Amended Complaint, which was due, respectively, on June 17, 2018, and August 20, 2018. Defendant Urban Redevelopment has not been served. As explained below, Defendant KBK Enterprises, LLC was never properly served and will be dismissed. The remaining fifteen Defendants filed the following ten Motions to Dismiss:

Defendant
Motion to Dismiss

CITY OF PITTSBURGH

ECF NO. 151

NORFOLK SOUTHERN RAILWAY, INC.

ECF NO. 14

PORT AUTHORITY OF ALLEGHENY COUNTY

ECF NO. 51

BOROUGH OF WILKINSBURG

ECF NO. 178

THE MOSITES DEFENDANTS

ECF NO. 175

MCCORMACK BARON DEFENDANTS

ECF NO. 158

STO-ROX DEFENDANTS

ECF NO. 139

ALLEGHENY COUNTY

ECF NO. 75

MISTICK DEFENDANTS

ECF NO. 107

KEITH B. KEY ENTERPRISES, LLC

ECF NO. 133

         In the February 11, 2019 Report and Recommendation, the Magistrate Judge recommended granting in part and denying in part, the ten motions to dismiss. As to Count I, he recommended that the motions be granted because the Corporate Plaintiffs are unable to state a VARA claim, and that the motions be denied as to the individual Plaintiff Holbrook. As to Count II, the Plaintiffs withdrew their Breach of Contract claim against the City of Pittsburgh, and as regards all other Defendants the Magistrate Judge recommended denying their respective motions. As to Plaintiffs' claim of Property Damage asserted in Count III, the Magistrate Judge recommended granting the motions, and dismissing the claim without leave to amend. Finally, as regards Keith B. Key, LLC's motion to dismiss because of improper service, the Magistrate Judge recommended denying said motion.

         II. DISCUSSION

         In response to the Report and Recommendations, seven separate written Objections were filed by twelve Defendants.[4] The filing of timely objections requires the district judge to "make a de novo determination of those portions of the report... to which objection is made." 28 U.S.C. § 636(b)(1); Sample v. Diecks, 885 F.2d 1099, 1106 n.3 (3d Cir. 1989); Fed. R Civ. P. 72(b)(3). Objections to the Magistrate Judge's Report and Recommendation have been made as to: (a) service of process on Defendant KBK Enterprises, LLC; (b) the denial of Defendants' motions to dismiss Plaintiff Holbrook's VARA claim; and (c) the denial of Defendants' motions to dismiss Plaintiffs' Breach of Contract claim.

         A. Service of Process on KBK Enterprises, LLC

         Plaintiffs named KBK Enterprises, LLC as a Defendant in their initial and Amended Complaint. ECF Nos. 1 & 4. Plaintiffs identified Defendant KBK Enterprises, LLC as "a limited liability company with an office and principal place of business operation at Spring Brook Road, P.O. Box 141, Analomink, Pennsylvania 18320." ECF No. 4, ¶ 39.[5] Plaintiffs filed a proof of service indicating that KBK Enterprises, LLC was served by certified mail, which was signed for at the above address on July 2, 2018. ECF No. 61. Federal Rule of Civil Procedure 4(h) indicates that service upon a corporation must be effected by personal service or in the manner prescribed by Rule 4(e)(1) for serving an individual, which permits a plaintiff to serve a summons following state law. Service by mail to a corporation is not authorized by the Federal Rules of Civil Procedure or by Pennsylvania Rule of Civil Procedure 402.1. As service of process by certified mail is not proper, Plaintiffs have failed to properly effect service upon KBK Enterprises, LLC in the time frame permitted by Rule of Civil Procedure 4(m).

         Plaintiffs argue that KBK Enterprises, LLC has failed to actually move the court to dismiss for improper service, noting that the argument was raised by Keith B. Key Enterprises, LLC, [6] not KBK Enterprises, LLC, and as such the Magistrate Judge never ruled on service as to KBK Enterprises, LLC. Plaintiffs are correct insofar as KBK Enterprises, LLC has not waived service, has not entered an appearance, and has not filed any pleading in this action. However, pursuant to Rule 4(m), when service has not been timely made on a defendant, "the court-on motion or on its own after notice to the plaintiff-must dismiss the action without prejudice against that defendant or order that service be made within a specified time. But if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period." Fed. R. Civ. Proc. 4(m). The Court will order that Plaintiffs properly serve KBK Enterprises, LLC by October 18, 2019.

         B. VARA Claim

         "The Visual Artists Rights Act ('VARA') was enacted in 1990 as an amendment to the Copyright Act, to provide for the protection of the 'moral rights' of certain artists." Hunter v. Squirrel HillAssocs., L.P.,413 F.Supp.2d 517, 519 (E.D. Pa. 2005) (citing Pollara v. Seymour,344 F.3d 265, 269 (2d ...


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