United States District Court, W.D. Texas, Austin Division
PITMAN UNITED STATES DISTRICT JUDGE
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).
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).
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).
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
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
argues that Bradford failed to allege that it infringed any
of the exclusive rights defined in Section 106, which
(1) to reproduce the copyrighted work in copies or
(2) to prepare derivative works based upon the copyrighted