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Bradford v. Nationwide Insurance Company of America

United States District Court, W.D. Texas, Austin Division

May 31, 2018

MARK BRADFORD, Plaintiff,
v.
NATIONWIDE INSURANCE COMPANY OF AMERICA; NATIONWIDE MUTUAL INSURANCE COMPANY; ON YOUR SIDE NATIONWIDE INSURANCE AGENCY, INC.; NATIONWIDE INSURANCE COMPANY OF FLORIDA; NATIONWIDE GENERAL INSURANCE COMPANY; PCM LOGISTICS, LLC; AF BUSINESS SERVICES, LCC; ISO CLAIMS SERVICES, INC.; and AGENT DOES 1-999; Defendants.

          ORDER

          ROBERT PITMAN UNITED STATES DISTRICT JUDGE

         Before the Court are motions to dismiss filed by Defendants Nationwide Insurance Company of America; Nationwide Mutual Insurance Company; On Your Side Nationwide Insurance Agency, Inc.; Nationwide Insurance Company of Florida; and Nationwide General Insurance Company (collectively, “Nationwide”), (Dkt. 3), and Defendant ISO Claims Services, Inc. (“ISO Claims”), (Dkts. 9, 10). Having considered the parties' arguments, the record, and the relevant law, the Court agrees that dismissal of Plaintiff's claims is appropriate under Federal Rule of Civil Procedure 12(b)(6).

         I. BACKGROUND

         Plaintiff Mark Bradford (“Bradford”) is a software developer who allegedly develops and distributes products that create forms used in the home mortgage lending and insurance industries (the “WinSketch products”). (Compl., Dkt. 1, at 7). According to Bradford, he owns the copyright for a product called WinSketch Insurance, which he developed for Nationwide but which Nationwide lacks permission to use. (Id. at 7-8). Bradford alleges that Nationwide has and continues to use WinSketch Insurance without a license. (Id. at 8). Bradford asserts causes of action against Nationwide for tortious interference with contract and fraud, (id. at 8-9), and requests relief under the Texas Deceptive Trade Practices Act (“DTPA”), Tex. Civ. Prac. & Rem. Code § 17.50(a)(2), as well as 17 U.S.C. §§ 503 and 504, (id. at 11). Bradford's complaint includes no allegations specific to ISO Claims. Nationwide and ISO Claims each ask the Court to dismiss all of Bradford's claims with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). (Nationwide Mot. Dismiss, Dkt. 3, at 20; ISO Claims Mem. Mot. Dismiss, Dkt. 10, at 12).

         II. LEGAL STANDARD

         Pursuant to Rule 12(b)(6), a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “To survive a Rule 12(b)(6) motion to dismiss, a complaint ‘does not need detailed factual allegations, ' but must provide the plaintiff's grounds for entitlement to relief-including factual allegations that when assumed to be true ‘raise a right to relief above the speculative level.'” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). That is, “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) (quoting Twombly, 550 U.S. at 570).

         “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'--that the pleader is entitled to relief.” Id. at 679 (quotation marks and citation omitted).

         III. DISCUSSION

         A. Nationwide

         1. Copyright infringement

         Nationwide argues that Bradford fails to plausibly allege that it infringed Bradford's copyright to the WinSketch Insurance software. (Nationwide Mot. Dismiss, Dkt. 3, at 10-11). The Court agrees. To prove a claim for copyright infringement, a plaintiff must establish: (1) ownership of the copyrighted material and (2) copying by the defendant. Computer Mgmt. Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 400 (5th Cir. 2000). To prove copying, a plaintiff must prove factual copying and substantial similarity. Positive Black Talk Inc. v. Cash Money Records, Inc., 394 F.3d 357, 367 (5th Cir. 2004), abrogated on other grounds by Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010). A plaintiff must also prove that a defendant used the accused copies in a manner described in 17 U.S.C. § 106. See Engenium Sols., Inc. v. Symphonic Techs., Inc., 924 F.Supp.2d 757, 782 (S.D. Tex. 2013) (“After establishing these threshold requirements, a plaintiff must prove that a defendant used the accused copies in any of the ways described in Section 106 of the Copyright Statute.”) (citation and quotation marks omitted); Playboy Enterprises, Inc. v. Webbworld, Inc., 991 F.Supp. 543, 551 (N.D. Tex. 1997), aff'd, 168 F.3d 486 (5th Cir. 1999) (“[The plaintiff] must establish that [the defendant] has violated one or more of the five exclusive rights granted to a copyright holder [in Section 106].”).

         Nationwide argues that Bradford failed to allege that it infringed any of the exclusive rights defined in Section 106, which include:

(1) to reproduce the copyrighted work in copies or phonorecords;
(2) to prepare derivative works based upon the copyrighted ...

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