United States District Court, N.D. Texas, Dallas Division
MEMORANDUM OPINION AND ORDER
Lindsay, United States District Judge.
the court is Defendant BGC Partners, Inc.'s Motion to
Dismiss Plaintiff RBH Energy, LLC's Amended Complaint
(Doc. 15), filed March 30, 2017. After considering the
motion, briefs, pleadings, and applicable law, the court
denies Defendant BGC Partners, Inc.'s
Motion to Dismiss Plaintiff RBH Energy, LLC's Amended
Complaint (Doc. 15).
Factual and Procedural Background
January 11, 2017, Plaintiff RBH Energy, LLC
(“Plaintiff”) brought this action against
Defendants BGC Partners, Inc. (“BGC”) and Newmark
& Company Real Estate, Inc. (“NGKF”)
(collectively, “Defendants”). In its Amended
Complaint, Plaintiff alleges that Defendants are liable for
direct and contributory copyright infringement under 17
U.S.C. § 501(a). Plaintiff seeks to recover actual
damages or statutory damages, attorney's fees, costs,
prejudgment and postjudgment interest, and an injunction to
enjoin Defendants from reproducing, administering,
displaying, or publishing RBH's copyrighted work(s) in
violation of Plaintiff's “U.S. Copyright No. V Au
1-111-482 (‘Copyright') titled Brian Harness
Photography Collection 2012 Vol. I.” Pl.'s Am.
Compl. ¶ 10. BGC contends that, under Federal Rule of
Civil Procedure 12(b)(6), it is entitled to dismissal of the
direct and contributory copyright infringement claims
asserted against it in Plaintiff's Amended Complaint.
Standard for Rule 12(b)(6) - Failure to State a
defeat a motion to dismiss filed pursuant to Rule 12(b)(6) of
the Federal Rules of Civil Procedure, a plaintiff must plead
“enough facts to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 570 (2007); Reliable
Consultants, Inc. v. Earle, 517 F.3d 738, 742 (5th Cir.
2008); Guidry v. American Pub. Life Ins. Co., 512
F.3d 177, 180 (5th Cir. 2007). A claim meets the plausibility
test “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged. The
plausibility standard is not akin to a ‘probability
requirement, ' but it asks for more than a sheer
possibility that a defendant has acted unlawfully.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(internal citations omitted). While a complaint need not
contain detailed factual allegations, it must set forth
“more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action will not
do.” Twombly, 550 U.S. at 555 (citation
omitted). The “[f]actual allegations of [a complaint]
must be enough to raise a right to relief above the
speculative level . . . on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Id. (quotation marks, citations, and
footnote omitted). When the allegations of the pleading do
not allow the court to infer more than the mere possibility
of wrongdoing, they fall short of showing that the pleader is
entitled to relief. Iqbal, 556 U.S. at 679.
reviewing a Rule 12(b)(6) motion, the court must accept all
well-pleaded facts in the complaint as true and view them in
the light most favorable to the plaintiff. Sonnier v.
State Farm Mutual Auto. Ins. Co., 509 F.3d 673,
675 (5th Cir. 2007); Martin K. Eby Constr. Co. v. Dallas
Area Rapid Transit, 369 F.3d 464, 467 (5th Cir. 2004);
Baker v. Putnal, 75 F.3d 190, 196 (5th Cir. 1996).
In ruling on such a motion, the court cannot look beyond the
pleadings. Id.; Spivey v. Robertson, 197
F.3d 772, 774 (5th Cir. 1999). The pleadings include the
complaint and any documents attached to it. Collins v.
Morgan Stanley Dean Witter, 224 F.3d 496, 498-99 (5th
Cir. 2000). Likewise, “‘[d]ocuments that a
defendant attaches to a motion to dismiss are considered part
of the pleadings if they are referred to in the
plaintiff's complaint and are central to [the
plaintiff's] claims.'” Id. (quoting
Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987
F.2d 429, 431 (7th Cir. 1993)). In this regard, a document
that is part of the record but not referred to in a
plaintiff's complaint and not attached to a
motion to dismiss may not be considered by the court in
ruling on a 12(b)(6) motion. Gines v. D.R. Horton,
Inc., 699 F.3d 812, 820 & n.9 (5th Cir. 2012)
(citation omitted). Further, it is well-established and
‘“clearly proper in deciding a 12(b)(6) motion
[that a court may] take judicial notice of matters of public
record.”' Funk v. Stryker Corp., 631 F.3d
777, 783 (5th Cir. 2011) (quoting Norris v. Hearst
Trust, 500 F.3d 454, 461 n.9 (5th Cir. 2007) (citing
Cinel v. Connick, 15 F.3d 1338, 1343 n.6 (5th Cir.
ultimate question in a Rule 12(b)(6) motion is whether the
complaint states a valid claim when it is viewed in the light
most favorable to the plaintiff. Great Plains Trust Co.
v. Morgan Stanley Dean Witter, 313 F.3d 305, 312 (5th
Cir. 2002). While well-pleaded facts of a complaint are to be
accepted as true, legal conclusions are not “entitled
to the assumption of truth.” Iqbal, 556 U.S.
at 679 (citation omitted). Further, a court is not to strain
to find inferences favorable to the plaintiff and is not to
accept conclusory allegations, unwarranted deductions, or
legal conclusions. R2 Invs. LDC v. Phillips, 401
F.3d 638, 642 (5th Cir. 2005) (citations omitted). The court
does not evaluate the plaintiff's likelihood of success;
instead, it only determines whether the plaintiff has pleaded
a legally cognizable claim. United States ex rel. Riley
v. St. Luke's Episcopal Hosp., 355 F.3d 370, 376
(5th Cir. 2004). Stated another way, when a court deals with
a Rule 12(b)(6) motion, its task is to test the sufficiency
of the allegations contained in the pleadings to determine
whether they are adequate enough to state a claim upon which
relief can be granted. Mann v. Adams Realty Co., 556
F.2d 288, 293 (5th Cir. 1977); Doe v. Hillsboro Indep.
Sch. Dist., 81 F.3d 1395, 1401 (5th Cir. 1996),
rev'd on other grounds, 113 F.3d 1412 (5th Cir.
1997) (en banc). Accordingly, denial of a 12(b)(6) motion has
no bearing on whether a plaintiff ultimately establishes the
necessary proof to prevail on a claim that withstands a
12(b)(6) challenge. Adams, 556 F.2d at 293.
motion to dismiss, BGC contends that the allegations in the
Amended Complaint are insufficient to support claims for
direct or contributory copyright infringement against it as
NGKF's parent company, and the Amended Complaint does not
contain sufficient allegations to pierce the corporate veil
between Defendants to hold BGC responsible for any allegedly
infringing conduct of NGKF under an alter ego theory.
responds that BGC incorrectly assumes that it must allege and
prove alter ego to pierce the corporate veil between BGC and
NGKF to proceed with its direct and contributory copyright
infringement claims against BGC. Plaintiff argues that there
is no such requirement, and its copyright infringement
allegations with respect to BGC as pleaded are sufficient to
state plausible claims for relief. Plaintiff contends that
BGC's motion should be denied because it is an improper
request for the court to dismiss the copyright infringement
claims against BGC based on the assumption that NGKF is
solely liable, although such an assumption is not supported
by the allegations in the Amended Complaint. Plaintiff
asserts that “BGC cannot recast RBH's Amended
Complaint, inventing a cause of action RBH has not alleged,
and then seek to dismiss the entire complaint based on that
imaginary cause of action.” Pl.'s Resp. 5.
Plaintiff further asserts that, to the extent Defendants
intend to defend against the claims asserted by arguing that
NGKF is solely responsible for the infringement of
Plaintiff's copyrighted image, resolution of that defense
or issue is not appropriate in ruling on BGC's motion to
dismiss Plaintiff's claims under Rule 12(b)(6).
court agrees with Plaintiff, and after considering BGC's
Motion to Dismiss, the parties' briefs, the pleadings,
and applicable law, it determines that the allegations in
Plaintiff's Amended Complaint are sufficient to raise a
right to relief against BGC above the speculative level, such
that BGC may be liable for the copyright infringement claims
asserted against it. Accordingly, resolution of the matters
presented is better suited for summary judgment or trial. The
court, therefore, denies Defendant BGC
Partners, Inc.'s Motion to Dismiss Plaintiff RBH Energy,
LLC's Amended Complaint (Doc. 15).
reasons stated, the court denies Defendant
BGC Partners, Inc.'s Motion to Dismiss Plaintiff RBH