United States District Court, S.D. Florida
CHARLES A. NETTLEMAN, III, Plaintiff,
THE FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Defendant.
ORDER AND OPINION GRANTING DEFENDANT THE FLORIDA
ATLANTIC UNIVERSITY BOARD OF TRUSTEES' MOTION TO DISMISS
M. MIDDLEBROOKS UNITED STATES DISTRICT JUDGE.
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.
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.).
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).
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).
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).
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
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)).
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).
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.
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'