Gunther v. Town of Ogden, 6:19-CV-06199-MAT

FREDERICK GUNTHERand NEW YORK ELECTRICAL INSPECTION AGENCY, Plaintiffs, v. TOWN OF OGDEN, GAY LENHARD,THOMAS COLE, MALCOLM PERRY,THOMAS USCHOLD, DAVID FEENEY,and PATRICK SMITH, Defendants.

6:19-CV-06199-MAT

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

November 19, 2019

DECISION AND ORDER

INTRODUCTION

Plaintiffs Frederick Gunther and New York Electrical Inspection Agency (hereinafter, "Plaintiffs") bring this action against defendants Town of Ogden, Gay Lenhard, Thomas Cole, Malcolm Perry, Thomas Uschold, David Feeney, and Patrick Smith (collectively, the "Defendants"), alleging violations of the Copyright Act, 17 U.S.C. § 101, et seq. Docket No. 1.

Presently before the Court is Defendants' motion to dismiss Plaintiffs' complaint for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Docket No. 8. For the reasons set forth below, Defendants' motion is denied.

BACKGROUND

Unless otherwise noted, the following facts are taken from Plaintiffs' complaint (Docket No. 1). Mr. Gunther is the President and Chief Electrical Inspector of New York Electrical Inspection Agency ("NYEIA"). Docket No. 1 at ¶ 1. Plaintiffs perform residential and commercial electrical inspections, with their principal place of business in Rochester, New York. Id. at ¶ 2. Mr. Gunther is a licensed New York State home inspector and certified New York State home inspector trainer, as well as a New York State certified Code Enforcement Officer and certified Electrical Inspector from the International Association of Electrical Inspectors. Id. at ¶¶ 9, 10. NYEIA is approved to conduct residential and commercial electrical inspections in New York State. Id. at ¶ 11.

Over the past eight years, NYEIA has applied for authorization to conduct residential electrical inspections in the Town of Ogden, New York. Id. at ¶ 12. Each application was denied via letter by defendant Smith, the Town of Ogden Building Inspector/Code Enforcement Officer. Id. at ¶ 13. Defendant Smith's denial of NYEIA's application was approved by resolution of the Town Board and its members, which includes defendants Cole, Perry, Uschold, and Feeney. Id. at ¶¶ 5-8, 14. The most recent denial letter is dated January 8, 2019. Id. at ¶ 14. As a result of these repeated denials, Plaintiffs filed an Article 78 proceeding in Monroe County Supreme Court, on the ground that the denials were "without sound basis in reason, arbitrary and capricious and an abuse of discretion." Id. at ¶ 16.

In connection with their operations, Plaintiffs utilized the 2014 National Electrical Code ("NEC"). Id. at ¶ 17. In an effort to simplify the guidelines contained in the NEC, Plaintiffs created "Helpful Electrical Requirements Sheets" (hereinafter, the "summary sheets"), which are summaries of NEC electrical wiring requirements for storable swimming pools, as well as for hot tubs and spas. Id. at ¶ 18. Plaintiffs' summary sheets "were drafted in plain language for ease of understanding based on Gunther's own personal knowledge and 20-plus years in the electrical industry." Id. at ¶ 20. Plaintiffs hold a valid copyright in the summary sheets, which was registered with the United States Copyright Office on November 7, 2016, Registration Number TXu 2-032-173. Id. at ¶ 21. Copies of the relevant NEC Guidelines, Plaintiffs' summary sheets, and the Certificate of Registration of the United States Copyright Office are attached to the complaint. Id. at ¶¶ 18, 19, 21.

Defendant Town of Ogden, through its Supervisor defendant Lenhard, defendant Smith, and the Town Board, presents on its website this same information "in substantially the same manner as Plaintiffs' Sheets." Id. at ¶ 22. Copies of the "Town of Ogden Electrical Requirements for Storable Swimming Pools," and "Town of Ogden Electrical Requirements for Hot Tubs & Spas," are also attached to the complaint. Id.

On September 22, 2017, Mr. Gunther notified Defendants, via letter, that the Town of Ogden was improperly publishingPlaintiffs' summary sheets on its website, in violation of Plaintiffs' copyright. Id. at ¶ 23. In response, the Town of Ogden removed Plaintiffs' name and address from the bottom of the summary sheets, but continued to publish the summary sheets on its website. Id. at ¶ 24. On October 13, 2017, Plaintiffs again, through counsel, notified defendant Lenhard that the Town of Ogden was improperly utilizing Plaintiffs' summary sheets without their permission, and demanded their removal from the Town's website. Id. at ¶ 25. Defendant Town of Ogden, through counsel, responded on October 17, 2017, stating that the summary sheets had initially been removed, but that the Town webmaster had inadvertently reinstalled them. Id. at ¶ 26. Counsel also stated that the Town of Ogden would remove the summary sheets from its website, and would not use the summary sheets in the future. Id. Copies of the above-mentioned correspondence are attached to the complaint. See Docket Nos. 1-6, 1-7, and 1-8. However, the Town of Ogden did not remove the summary sheets from its website. Docket No. 1 at ¶ 27.

On January 31, 2019, Plaintiffs again, through counsel, notified the Town of Ogden that it was improperly utilizing Plaintiffs' summary sheets without their permission, demanded removal of the sheets from its website, and demanded that the Town of Ogden pay damages for its willful copyright infringement. Id. at ¶ 28. The Town of Ogden responded through its attorney on February 4, 2019, noting that the information on its website wastaken directly from the 2014 NEC. Id. at ¶ 29. Enclosed with the Town's response were documents counsel thought contained the relevant provisions of the 2014 NEC; however, "the documents provided which were the same as those that appeared on Defendant Town's website were, in fact, Plaintiffs' copyrighted Sheets, with references and contact information of the Plaintiffs removed." Id. at ¶ 30. Copies of the above-mentioned correspondence are attached to the complaint. See Docket Nos. 1-9 and 1-10.

Plaintiffs further allege that "the materials published on Defendant's websites are verbatim to Plaintiffs' Sheets, minus the diagrams and reference to Plaintiff, and are Plaintiffs' copyrighted summaries of the 2014 NEC," and "[t]o date, Plaintiffs' Sheets are still published on Defendant Town of Ogden's website." Docket No. 1 at ¶¶ 31, 32.

PROCEDURAL HISTORY

Plaintiffs Frederick Gunther and New York Electrical Inspection Agency filed their complaint on March 18, 2019, alleging violations of the Copyright Act, 17 U.S.C. § 101, et seq. against defendants Town of Ogden, Gay Lenhard, Thomas Cole, Malcolm Perry, Thomas Uschold, David Feeney, and Patrick Smith. Docket No. 1. On June 5, 2019, Defendants filed a motion to dismiss the complaint. Docket No. 8. Plaintiffs filed their response on July 9, 2019. Docket Nos. 12, 13.

DISCUSSION

I. Standard

To withstand a Rule 12(b)(6) motion to dismiss, the complaint must plead facts sufficient "to state a claim for relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "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." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. Thus, "[w]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (internal citations and quotation marks omitted). Determining whether a complaint meets the plausibility standard is "context-specific" and requires that the court "draw on its judicial experience and common sense." Id. at 679.

II. Plaintiffs' Have Stated a Claim for Copyright Infringement.

"A properly plead copyright infringement claim must allege 1) which specific original works are the subject of the copyright claim, 2) that plaintiff owns the copyrights in those works, 3) that the copyrights have been registered in accordance with the statute, and 4) by what acts during what time the defendantinfringed the copyright." Kelly v. L.L. Cool J., 145 F.R.D. 32, 36 (S.D.N.Y. 1992), aff'd, 23 F.3d 398 (2d Cir. 1994); MacDonald v. K-2 Industries, Inc., 108 F. Supp. 3d 135, 139 (W.D.N.Y. 2015) (same); see also Lumetrics, Inc. v. Blalock, 23 F. Supp. 3d 138, 142 (W.D.N.Y. 2014) ("A plaintiff must allege the following elements in order to state a valid claim for copyright infringement: '(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'") (quoting Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340, 361 (1991)). "There is no heightened pleading requirement applied to copyright infringement claims . . . a claim of copyright infringement need only meet the pleading requirements of Rule 8 of the Federal Rules of Civil Procedure." Levine v. Landy, 860 F. Supp. 2d 184, 191 (N.D.N.Y. 2012) (internal citation omitted); see also McDonald, 108 F. Supp. 3d at 139 ("In short, a copyright plaintiff need not plead detailed evidence, but she must allege facts — not just legal conclusions — demonstrating the existence of a facially plausible claim, i.e., that she owns one or more valid copyrights that have been infringed by defendants).

Plaintiffs have adequately plead a copyright infringement claim. The complaint contains allegations identifying the specific original works, i.e., the summary sheets (see Docket No. 1 at ¶¶ 18-20); Plaintiffs' ownership of copyrights in the summary sheets (id. at ¶ 21); that the copyrights are registered (id.); andhow and when Defendants' allegedly infringed the copyright (id. at ¶¶ 22-32). The summary sheets, Certificate of Registration, and Defendants' alleged...