United States District Court, S.D. Florida
ORDER ON MOTION TO DISMISS
BLOOM UNITED STATES DISTRICT JUDGE.
CAUSE is before the Court upon Defendant Compass
Florida, LLC's (“Defendant” or
“Compass”) Motion to Dismiss, ECF No. 
(“Motion”), filed on June 26, 2019. Plaintiff
Affordable Aerial Photography, Inc. (“Plaintiff”)
filed a response, ECF No.  (“Response”), to
which Defendant filed a reply, ECF No. 
(“Reply”). The Court has carefully considered the
Motion, the Response and Reply, the record in this case and
the applicable law, and is otherwise fully advised. For the
reasons set forth below, the Motion is granted.
case arises as a result of alleged copyright infringement by
Defendant and Modern Living Real Estate, LLC (“Modern
Living”). Plaintiff was formed by Robert Stevens
(“Stevens”) in 2005. The Plaintiff specializes in
photographing real estate using a tethered helium balloon
camera-rigging system designed and built by Stevens.
Plaintiff retains and registers the copyrights for its
photographs, which are created for one time use for
Plaintiff's customers and for licensing to third parties
that may wish to copy, distribute, or display the photos.
According to Plaintiff, numerous of its copyrighted images
were posted on Modern Living's website without
Plaintiff's authorization, in connection with advertising
properties for sale or rent.
result, Plaintiff asserts claims against Defendant and Modern
Living for direct and vicarious copyright infringement and
violation of the Digital Millennium Copyright Act
(“DMCA”), Pub. L. 105-304, 112 Stat. 2860 (1998)
(codified in scattered sections of 17 U.S.C.). See
generally, ECF No.  (“Complaint”). In the
Motion, Defendant seeks dismissal of the Complaint for
failure to state a claim.
of the Federal Rules requires that a pleading contain
“a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed.R.Civ.P.
8(a)(2). Although a complaint “does not need detailed
factual allegations, ” it must provide “more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (explaining
that Rule 8(a)(2)'s pleading standard “demands more
than an unadorned, the-defendant-unlawfully-harmed-me
accusation”). In the same vein, a complaint may not
rest on “‘naked assertion[s]' devoid of
‘further factual enhancement.'”
Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 557 (alteration in original)). “Factual
allegations must be enough to raise a right to relief above
the speculative level.” Twombly, 550 U.S. at
555. These elements are required to survive a motion brought
under Rule 12(b)(6) of the Federal Rules of Civil Procedure,
which requests dismissal for failure to state a claim upon
which relief can be granted.
reviewing a motion under Rule 12(b)(6), a court, as a general
rule, must accept the plaintiff's allegations as true and
evaluate all plausible inferences derived from those facts in
favor of the plaintiff. Miccosukee Tribe of Indians of
Fla. v. S. Everglades Restoration Alliance, 304 F.3d
1076, 1084 (11th Cir. 2002); AXA Equitable Life Ins. Co.
v. Infinity Fin. Grp., LLC, 608 F.Supp.2d 1349, 1353
(S.D. Fla. 2009). However, this tenet does not apply to legal
conclusions, and courts “are not bound to accept as
true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555; see
Iqbal, 556 U.S. at 678; Thaeter v. Palm Beach Cty.
Sheriff's Office, 449 F.3d 1342, 1352 (11th Cir.
2006). Moreover, “courts may infer from the factual
allegations in the complaint ‘obvious alternative
explanations,' which suggest lawful conduct rather than
the unlawful conduct the plaintiff would ask the court to
infer.” Am. Dental Ass'n v. Cigna Corp.,
605 F.3d 1283, 1290 (11th Cir. 2010) (quoting Iqbal,
556 U.S. at 682). A court considering a Rule 12(b) motion is
generally limited to the facts contained in the complaint and
attached exhibits, including documents referred to in the
complaint that are central to the claim. Wilchombe v.
TeeVee Toons, Inc., 555 F.3d 949, 959 (11th Cir. 2009);
see also Maxcess, Inc. v. Lucent Techs., Inc., 433
F.3d 1337, 1340 (11th Cir. 2005) (“[A] document outside
the four corners of the complaint may still be considered if
it is central to the plaintiff's claims and is undisputed
in terms of authenticity.”) (citing Horsley v.
Feldt, 304 F.3d 1125, 1135 (11th Cir. 2002)).
argues that Plaintiff's claims should be dismissed
because the Complaint does not comply with pleading
requirements, and Plaintiff fails to allege valid claims for
direct or vicarious copyright infringement. The Court
considers each argument in turn.
argues that the Complaint violates Rule 8 of the Federal
Rules of Civil Procedure because the allegations against
Defendant and Modern Living are indiscriminately lumped
together. Upon review, the Court agrees, and finds that the
Complaint is a shotgun pleading.
8(a)(2) of the Federal Rules of Civil Procedure requires that
a pleading contain a “short and plain statement of the
claim” that shows that the pleader is entitled to
relief. Fed.R.Civ.P. 8(a)(2). The failure to identify claims
with sufficient clarity to enable the defendant to frame a
responsive pleading constitutes a “shotgun
pleading” that violates Rule 8(a)(2). Byrne v.
Nezhat, 261 F.3d 1075, 1129-30 (11th Cir. 2001). Shotgun
pleadings fail to make the connection between “the
substantive count and the factual predicates . . . [such
that] courts cannot perform their gatekeeping function with
regard to the averments of [the claim].” Wagner v.
First Horizon Pharm. Corp., 464 F.3d 1273, 1279-80 (11th
Cir. 2006). Although not the quintessential form, the
Complaint is nevertheless a shotgun pleading in that it
“assert[s] multiple claims against multiple defendants
without specifying which of the defendants are responsible
for which acts or omissions . . . .” Weiland v.
Palm Beach Cty. Sheriff's Office, 792 F.3d 1313,
1321-23 (11th Cir. 2015).
to Plaintiff's assertion in its Response, the Complaint
does not identify the acts through which Compass and Modern
Living each allegedly infringed upon Plaintiff's
copyrights. The only well pled factual allegation regarding
the alleged infringements states that the photographs
“were posted by Defendant on the MODERN LIVING website
. . . where Defendant advertises publicly all their real
estate properties for sale or rent.” ECF No.  ¶
29. However, Plaintiff does not otherwise specify whether the
term “Defendant” refers to Compass or Modern
Living. Plaintiff also alleges that both Compass and Modern
Living stored copies of the images on “its”
servers “or servers hosted for the benefit of
Defendants, ” but again, this allegation confusingly
conflates the two defendants, and alone is ...