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Flack v. Citizens Memorial Hospital

United States District Court, W.D. Missouri, Southern Division

March 7, 2019

WESLEY W. FLACK, Plaintiff,



         Before 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.


         Plaintiff 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.

         Plaintiff 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.

         In 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.[1] 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 Plaintiff's “works.”

         Defendant 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.


         “To 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. 2009).


         I. Federal Copyright Infringement

         Defendant 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).[2]

         The 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).[3] 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);[4] 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)).

         In 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 ...

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