Potter v. Toei Animation Inc.

839 F.Supp.2d 49

Isaac A. POTTER, Jr., Plaintiff,

v.TOEI ANIMATION INCORPORATED, et al., Defendants.

Civil Action No. 10–2085 (JEB).

United States District Court, District of Columbia.

March 12, 2012.

Isaac A. Potter, Jr., Orlando, FL, pro se.

Deborah Brand Baum, Thomas G. Allen, Pillsbury Winthrop Shaw Pittman, LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

JAMES E. BOASBERG, District Judge.

Pro se Plaintiff Isaac A. Potter, Jr. has brought yet another action related to his purported intellectual property rights with respect to something entitled “Zodiac Knights 2000” or “Knights of the Zodiac.” The Complaint, which is largely incomprehensible, names as Defendants Toei Animation Incorporated and the United States. Both Defendants have now filed Motions to Dismiss. As Plaintiff never responds to their arguments, as the Complaint fails to sufficiently plead any actual cause of action, and as claim preclusion bars his copyright cause of action against the United States, the Court will grant the Motions. It will also deny the slew of motions Plaintiff has filed

I. Background

As best the Court can decipher, the Complaint here raises several distinct claims. Most centrally, Plaintiff seeks, “[p]ursuant to 35 U.S.C. [§ ] 283 ... injunctive relief prohibiting all defendants from further infringement of copyright and trademark....” Compl. at 3 (using ECF page numbers, not Plaintiff's labeled page numbers.). He also asserts ostensible causes of action for a violation of §§ 337(e) or (f) of the Tariff Act of 1930, see id. at 2, and “a clear violation under section 1001 of Title 18 of the United States Code....” Id. at 9. He demands injunctive relief, “damages and all other remedies at law and in equity,” and punitive damages of $1 billion. Id. at 3.

This civil action is far from Plaintiff's first effort to seek relief for alleged copyright and trademark infringement. In fact, he has filed at least eleven federal actions in different courts in the last seven years in relation to these same copyright and trademark claims. See, e.g., Potter v. Cartoon Network, No. 05–cv–0868 (M.D.Fla.); Potter v. United States, No. 10–cv–0346 (Fed.Cl.); Potter v. Cartoon Network, LP, No. 06–cv–2076 (N.D.Ga.). Indeed, Plaintiff even attaches an Order from the third case to his Complaint. See Compl., Exh. 1 (Order & Op. in No. 06–2076). Opinions from some of these cases make somewhat clearer the gravamen of Plaintiff's claim. It appears Plaintiff obtained copyright protection for drawings entitled “Zodiac Knights 2000,” and that at some point the Cartoon Network aired a series entitled “Knights of the Zodiac,” which he believes infringed on his copyright. Id. at 1–2; see also Potter v. United States, 424 Fed.Appx. 941 (Fed.Cir.2011).

Both Toei and the United States have now filed Motions to Dismiss, which the Court will address in turn, following which it will discuss the series of other motions Plaintiff has filed during the pendency of the case.

II. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a claim upon which relief can be granted.” In evaluating Defendants' Motion to Dismiss, the Court must “treat the complaint's factual allegations as true ... and must grant plaintiff ‘the benefit of all inferences that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C.Cir.2000) (quoting Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979)) (internal citation omitted); see also Jerome Stevens Pharms., Inc. v. FDA, 402 F.3d 1249, 1253 (D.C.Cir.2005). The notice pleading rules are “not meant to impose a great burden on a plaintiff,” Dura Pharm., Inc. v. Broudo, 544 U.S. 336, 347, 125 S.Ct. 1627, 161 L.Ed.2d 577 (2005), and he must thus be given every favorable inference that may be drawn from the allegations of fact. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 584, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

Although “detailed factual allegations” are not necessary to withstand a Rule 12(b)(6) motion, id. at 555, 127 S.Ct. 1955, “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, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955). Plaintiff must put forth “factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Court need not accept as true “a legal conclusion couched as a factual allegation,” nor an inference unsupported by the facts set forth in the Complaint. Trudeau v. Fed. Trade Comm'n, 456 F.3d 178, 193 (D.C.Cir.2006) (quoting Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986) (internal quotation marks omitted)). Though a plaintiff may survive a 12(b)(6) motion even if “recovery is very remote and unlikely,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citing Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974)), the facts alleged in the complaint “must be enough to raise a right to relief above the speculative level.” Id.

A pro se complaint “must be held to less stringent standards than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and citation omitted), but it, too, “must plead ‘factual matter’ that permits the court to infer ‘more than the mere possibility of misconduct.’ ” Atherton v. District of Columbia Office of the Mayor, 567 F.3d 672, 681–82 (D.C.Cir.2009) (quoting Iqbal, 129 S.Ct. at 1950).

III. Analysis

A. Toei's Motion to Dismiss

Toei moves to dismiss the Complaint under Rule 12(b)(6) on the ground that it fails to state claims for trademark infringement, copyright infringement, Tariff Act violations, or § 1001 violations upon which relief can be granted. Alternatively, “even if [the plaintiff's] claims were sufficiently pled,” Toei argues that the claims are barred under the doctrine of collateral estoppel. Toei Mot. at 11. Toei is clearly correct on the first point.

In opposing Toei's Motion, Plaintiff filed a two-page pleading styled “Plaintiff's Motion to Set Aside Defendant's Toei Animation's Motion to Dismiss Complaint, Quasi In Rem Jurisdiction, SCR–Civil Rule 55(a) Default Judgment, Alter–Ego Rule Law (‘Pl.'s Opp. to Toei Mot.’).” Aside from its recitation of the standard of review on a Rule 12(b)(6) motion, see Id. at 1, no other statement appears to be relevant or responsive to the arguments presented in Toei's Motion. It is Plaintiff's obligation to articulate his arguments; the Court should not be left to divine the significance of his discussion of “alter egos” and “piercing the corporate veil,” see Id. at 2, or his attachments. See id., Exh. (Letter from Roberta S. Bren to the Commissioner of Trademarks dated December 20, 2002, and attachments).

In the District of Columbia Circuit, it is established that an argument in a dispositive motion that the opponent fails to address in an opposition may be deemed conceded. Rosenblatt v. Fenty, 734 F.Supp.2d 21, 22 (D.D.C.2010); seeBuggs v. Powell, 293 F.Supp.2d 135, 141 (D.D.C.2003) (citing Fed. Deposit Ins. Corp. v. Bender, 127 F.3d 58, 67–68 (D.C.Cir.1997)) (“when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, the court may treat those arguments that the plaintiff failed to address as conceded”). Plaintiff's failure to address Toei's arguments permits the Court to grant its Motion as conceded.

Granting Plaintiff some leeway, even were the Court to consider the merits of the Motion, Plaintiff still could not prevail because he has failed to state a claim upon which relief may be granted. In order to state a claim of trademark infringement, a plaintiff must allege that he owns a valid trademark, that it is distinctive or has acquired a secondary meaning, and that there is a likelihood of confusion. See, e.g., Sears, Roebuck & Co. v. Sears Fin. Network, 576 F.Supp. 857, 862 (D.D.C.1983). A copyright-infringement claim must allege the existence of specific works subject to the copyright claim, that the copyrights are registered, and the acts and time period during which the defendant allegedly infringed the copyright. See, e.g., Newborn v. Yahoo!, Inc., 391 F.Supp.2d 181, 190 n. 8 (D.D.C.2005). Plaintiff never comes close to pleading these elements. He “alleges the complaint is based upon the infringement of a federally registered copyright and trademark (federal and state of Indiana registered),” Compl. at 8, and he alleges “substantial investment in the exploitation of the subject copyright and trademark (Knights of the Zodiac) and or (Zodiac Knights 2000),” Id. at 9, and he “alleges Roberta Bren willfully infringed a federally registered trademark (in its 5th year 1997–2002) and copyright (in its 7th year 1995 to 2010).” Id. at 11. In other words, his trademark claim never asserts anything about a distinctive or secondary meaning or mentions a likelihood of confusion. Similarly, the only alleged violator of his copyright appears to be Roberta Bren, not Toei. These two causes of action are thus insufficient.

As to Plaintiff's claims under the Tariff Act of 1930, such statute does not provide for a private right of action. See Mugworld, Inc. v. G.G. Marck & Associates, Inc., 563 F.Supp.2d 659, 666 (E.D.Tex.2007). If Plaintiff wishes to seek relief for violations of section 337 of the Act, 19 U.S.C. § 1337, which pertains to unfair importation practices, he must first file a complaint with the International Trade Commission. SeeAnsell Healthcare Prod. LLC v. Tillotson Corp., 567 F.Supp.2d 196, 199 n. 1 (D.D.C.2008)(§ 1337 “authorize[s] complaints to be filed with the ITC for investigation into alleged unfair practices in import trade”). The ITC then determines whether or not...