United States District Court, W.D. Missouri, Southern Division
WESLEY W. FLACK, Plaintiff,
CITIZENS MEMORIAL HOSPITAL, Defendant.
DOUGLAS HARPOOL, UNITED STATES DISTRICT JUDGE
the Court is Defendant's Motion to Dismiss
Plaintiff's Amended Complaint. (Doc. 13). The motion is
ripe for review and for the reasons stated herein, the Court
grants Defendant's motion to dismiss.
has filed this lawsuit against Citizen Memorial Hospital
alleging federal copyright infringement (Count I); breach of
contract (Count II); unfair business practices (Count III);
accounting (Count IV); and declaratory relief (Count V).
Plaintiff states he creates, writes, and illustrates personal
safety material and owns copyrighted material: specifically
the following: “text; (includes fiction, nonfiction,
poetry computer programs, etc.); Illustration; and
Photographs (copyrighted material).” Plaintiff alleges
this copyrighted material was registered with the Copyright
Office on March 10, 2006, Registration Number: TXul-303-189.
claims Defendant is using his copyrighted materials in
products it both manufactures and markets without
Plaintiff's permission, and has been doing so since
August 2016. Plaintiff further alleges he has demanded
Defendant to stop manufacturing and marketing this material
without his consent but it has failed to do so.
addition, Plaintiff claims he entered into a verbal contract
with Defendant in June 2004. Plaintiff claims Defendant
breached said contract in June 2004 by failing to pay
Plaintiff and failing to provide an accounting. Plaintiff
claims under the contract Defendant also failed to obtain
prior approval for displays and marketing materials as agreed
to in the verbal contract. Finally, Plaintiff alleges Defendant
has engaged in fraudulent, deceptive, unfair and wrongful
conduct by registering Plaintiff's materials with the
U.S. Copyright Office and falsely claiming ownership of
has moved to dismiss Plaintiff's First Amended Complaint
arguing: 1) Plaintiff's copyright claims are barred by
sovereign immunity; 2) Plaintiff's remaining claims are
barred by the statute of limitations and statute of frauds;
and 3) Plaintiff has failed to state a claim upon which
relief can be granted.
survive a motion to dismiss [under 12(b)(6)], 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). A
complaint is facially plausible where its factual content
“allows the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Id. The plaintiff must plead facts that show more
than a mere speculation or possibility that the defendant
acted unlawfully. Id.; Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007). While the Court accepts the
complaint's factual allegations as true, it is not
required to accept the plaintiff's legal conclusions.
Ashcroft, 556 U.S. at 678. “Threadbare
recitals of the elements of a cause of action, supported by
mere conclusory statements, do not suffice.”
Id. The court's assessment of whether the
complaint states a plausible claim for relief is a
“context-specific task that requires the reviewing
court to draw on its judicial experience and common
sense.” Ashcroft, 556 U.S. at 679. The
reviewing court must read the complaint as a whole rather
than analyzing each allegation in isolation. Braden v.
Wal-Mart Stores, Inc., 588 F.3d 585, 594 (8th Cir.
Federal Copyright Infringement
argues Plaintiff's claims for federal copyright
infringement fail because Defendant is entitled to sovereign
immunity as a political subdivision of the state.
“[S]overeign immunity applies to the government and its
political subdivisions unless waived or abrogated or the
sovereign consents to suit.” Metro. St. Louis Sewer
Dist. v. City of Bellefontaine Neighbors, 476 S.W.3d
913, 921 (Mo. 2016); citing Mo. Rev. Stat. § 537.600.
Further, “the operation of a hospital by a city, county
or similar public corporation entity is a governmental
function.” State ex rel. New Liberty Hosp. Dist. v.
Pratt, 687 S.W.2d 184, 186 (Mo. 1985). Sovereign
immunity cannot be breached without the state's consent,
and such consent must flow from the legislature. Id.
at 187 (internal citations omitted).
issue before the Court is whether the Copyright Remedy
Clarification Act (“CRCA”) waives the state's
sovereign immunity. Congress enacted the CRCA, the Patent and
Plant Variety Protection Remedy Clarification Act
(“Patent Remedy Act”), and the Trademark Remedy
Clarification Act (“TRCA”) in 1990. See
InfoMath, Inc. v. Univ. of Arkansas, 633 F.Supp.2d
674, 679 (E.D. Ark. 2007) (internal citations
omitted). Neither the United States Supreme Court,
nor the Eighth Circuit, have determined whether Congress had
a valid power under Section 5 to abrogate state sovereign
immunity under the CRCA. See Issaenko v. Univ. of
Minnesota, 57 F.Supp.3d 985, 1004 (D. Minn.
2014); and Allen v. Cooper, 895 F.3d
337, 354 (4th Cir. 2018), petition for cert. filed,
(U.S. Jan. 4, 2019) (No. 18-877) (“we join the numerous
other courts to have considered this issue since Florida
Prepaid, all of which have held the Act invalid.”)
(citing Chavez v. Arte Publico Press, 204 F.3d 601,
607-08 (5th Cir. 2000); and Issaenko v. Univ. of
Minn., 57 F.Supp.3d 985, 1007-08 (D. Minn. 2014)
(collecting a dozen cases)).
Chavez v. Arte Publico Press, the Fifth Circuit
stated that “Congress amended both the Lanham Act and
the Copyright Act and explicitly required states to submit to
suit in federal court for violation of their
provisions.” 204 F.3d 601, 603 (5th Cir. 2000).
However, the Fifth Circuit considered whether, in light of
College Savings, Florida Prepaid, and Kimel v.
Fla. Bd. of Regents, Congress had authority to abrogate
state sovereign immunity. Id. (internal citations
omitted). The Fifth Circuit found that Congress did not have
the power to abrogate sovereign immunity and that an action
for copyright infringement against the University was barred
by sovereign immunity. Id. at 608. (considering the
case on remand for reconsideration in light of Florida
Prepaid Postsecondary Educ. Expense ...