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Nettleman v. Florida Atlantic University Board of Trustees

United States District Court, S.D. Florida

January 5, 2017




         THIS CAUSE comes before the Court upon Defendant The Florida Atlantic University Board of Trustees' ("FAU") Motion to Dismiss Plaintiffs Amended Complaint ("Motion"), filed on September 22, 2016. (DE 20). Plaintiff Charles A. Nettleman, III ("Nettleman") filed a Response in Opposition on October 11, 2016 (DE 23), to which FAU replied on November 10, 2016 (DE 28). For the reasons stated below, FAU's Motion is granted.


         Nettleman is a land surveying engineer and professor of geomatics. (DE 9, Amended Complaint, hereinafter "Compl., " at ¶ 9). In 2008, he created a "package" of teaching materials (the "Materials"), which included "Powerpoint slides, laboratory exercises, homework assignments, lists of internet resources, quizzes, and exams." (Id. at ¶ 10). Nettleman registered the Materials with the United States Copyright Office under Copyright Reg. No. TX0007969504. (Id. at ¶ 12). These materials are used for the purpose of teaching "continuing education courses to land surveyors, engineers, and attorneys." (Id. at ¶ 11). In addition to using the Materials himself, Nettleman licenses them to "various colleges and universities on a per-semester basis." (Id.).

         FAU hired Nettleman in the summer of 2014 as an adjunct professor to teach a course called Fundamentals of Surveying for the Fall 2014 semester. (Id. at ¶ 13). To teach the course's curriculum, Nettleman used his Materials and made them available online by uploading them to Blackboard, FAU's "online learning-management system." (Id. at ¶ 14). Blackboard may be accessed "only by the professor-of-record, the enrolled students, FAU's internet technology support staff, and the program dean." (Id. at ¶ 15).

         At some point thereafter, FAU offered Nettleman a position to teach the course again for the Spring 2015 semester. (Id. at ¶ 17). Nettleman declined because he had accepted a full-time position elsewhere. (Id.). In December 2014, Dr. Yan Yong ("Yong"), the Chair of and professor in FAU's Department of Civil, Environmental & Geomatics Engineering, requested that Nettleman permit the replacement surveying professor to use his Materials for the Spring 2015 semester. (Id. at ¶ 16). Nettleman denied the request because, as he informed Yong, he licensed his Materials to universities for a fee and could not allow FAU to use them free of charge. (Id. at ¶ 18). When Yong did not reply to his demurral, Nettleman assumed that the issue had concluded. (Id. at ¶ 19).

         Later in 2015, Nettleman and FAU resumed their relationship. During the Fall 2015 semester, after the then-current surveying professor was deported, FAU asked, and Nettleman agreed, to take his place for the remainder of the semester. (Id. at ¶¶ 22-23). Once he became the professor-of-record for the course, Nettleman logged into Blackboard, only to discover that the outgoing surveying professor had been utilizing his Materials to teach the course curriculum for that semester. (Id. at ¶ 24). Investigating the matter further, Nettleman then learned through Blackboard and Dropbox that "many of his Materials" were also used by the professor(s) who taught the course in the Spring and Summer 2015 semesters. (Id. at ¶¶ 25-26). At no point did Nettleman authorize FAU to make use of the Materials or receive any compensation for their use in the surveying course. (Id. at ¶ 28). Nettleman also notes that FAU has adopted its own intellectual property policy which "treats the faculty member as the copyright owner of works that are created independently and at the faculty member's own initiative for traditional academic purposes." (Id. at ¶ 31 & Ex. A at 3).

         Nettleman filed a complaint against FAU on July 27, 2016. (DE 1). He amended the complaint once, on August 23, 2016. (DE 9). The Amended Complaint ("Complaint") asserts two statutory causes of action against FAU: (1) copyright infringement under 17 U.S.C. § 106, et seq. (Compl. at ¶¶ 41-53); and (2) alteration of copyright management information under 15 U.S.C. § 1202(a) (id. at ¶¶ 53-66). In addition, the Complaint alleges that by infringing on his copyrighted Material without due process of law, FAU violated Nettleman's constitutional rights emanating from the Fourteenth Amendment of the United States Constitution. (Id. at ¶¶ 67-81). FAU filed the instant Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (DE 20 at 1).


         A motion to dismiss under Rule 12(b)(6) challenges the legal sufficiency of a complaint. See Fed. R. Civ. P. 12(b)(6). In assessing the legal sufficiency of a complaint's allegations, the Court is bound to apply the pleading standard articulated in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007) and Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). That is, the complaint "must.. . contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Am. Dental Ass'n v. Cigna Corp., 605 F.3d 1283, 1289 (11th Cir. 2010) (quoting Twombly, 550 U.S. at 570). "Dismissal is therefore permitted when on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Glover v. Liggett Grp., Inc., 459 F.3d 1304, 1308 (11th Cir. 2006) (internal quotations omitted) (citing Marshall Cty. Bd. of Educ. v. Marshall Cty. Gas Dist., 992 F.2d 1171, 1174 (11th Cir. 1993)).

         When reviewing a motion to dismiss, a court must construe plaintiffs complaint in the light most favorable to plaintiff and take the factual allegations stated therein as true. See Erickson v. Pardus, 551 U.S. 89, 93 (2007); Christopher v. Harbury, 536 U.S. 403, 406 (2002); Brooks v. Blue Cross & Blue Shield of Fla, Inc., 116 F.3d 1364, 1369 (11th Cir. 1997). However, pleadings that "are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations." Iqbal, 556 U.S. at 678; see also Sinaltrainal v. Coca-Cola Co., 578 F.3d 1252, 1260 (11th Cir. 2009) (stating that an unwarranted deduction of fact is not considered true for purpose of determining whether a claim is legally sufficient).

         Generally, a plaintiff is not required to detail all the facts upon which he bases his claim. Fed.R.Civ.P. 8(a)(2). Rather, Rule 8(a)(2) requires a short and plain statement of the claim that fairly notifies the defendant of both the claim and the supporting grounds. Twombly, 550 U.S. at 555-56. However, "Rule 8(a)(2) still requires a 'showing, ' rather than a blanket assertion, of entitlement to relief." Id. at 556 n.3. Plaintiffs "obligation to provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. at 555 (citation omitted). "Factual allegations must be enough to raise [plaintiffs] right to relief above the speculative level, on the assumption that all of the allegations in the complaint are true." Id.


         The viability of Nettleman's Complaint turns on the resolution of an unsettled issue in the Eleventh Circuit: under what circumstances, if any, does the Copyright Remedies Clarification Act ("CRCA") abrogate the States' ...

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