Welcome to Scribd, the world's digital library. Read, publish, and share books and documents. See more
Download
Standard view
Full view
of .
Save to My Library
Look up keyword
Like this
2Activity
0 of .
Results for:
No results containing your search query
P. 1
Hermeris v Brandenburg

Hermeris v Brandenburg

Ratings: (0)|Views: 169 |Likes:
Published by Eric Goldman

More info:

Published by: Eric Goldman on Jan 29, 2011
Copyright:Attribution Non-commercial

Availability:

Read on Scribd mobile: iPhone, iPad and Android.
download as PDF, TXT or read online from Scribd
See more
See less

01/29/2011

pdf

text

original

 
1
 Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 555, 570 (2007).
ams
IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF KANSASHERMERIS, INC.,))Plaintiff,)))vs.)Case No. 10-2531-JAR)MATTHEW DOUGLAS)BRANDENBURG, et al.,))Defendants.)____________________________________)MEMORANDUM AND ORDER
Plaintiff filed this action alleging copyright infringement and state law tort claims,premised on the allegation that defendants infringed upon federally registered copyrights in thecontent and source code of its online document preparation business, located at the Internetdomain name www.SimpleFilings.com. Before the Court is defendant ThePlanet.com InternetServices, Inc.’s Motion to Dismiss (Doc. 20), seeking to dismiss plaintiff’s claim for copyrightinfringement with regard to two of the three websites at issue in this matter. The motion is fullybriefed and the Court is prepared to rule. As described more fully below, the Court grants in partand denies in part defendant’s motion to dismiss.
I.Standard
To survive a motion to dismiss, a complaint must present factual allegations, assumed tobe true, that “raise a right to relief above the speculative level” and must contain “enough facts tostate a claim to relief that is plausible on its face.”
1
Under this standard, “the complaint must
Case 2:10-cv-02531-JAR -KMH Document 37 Filed 01/23/11 Page 1 of 9
 
2
 Ridge at Red Hawk, L.L.C. v. Schneider 
, 493 F.3d 1174, 1177 (10th Cir. 2007) (emphasis in the original).
3
 Ashcroft v. Iqbal
, – U.S. –, 129 S. Ct. 1937, 1949 (2009).
4
 Id.
5
 Robbins v. Oklahoma
, 519 F.3d 1242, 1247 (10th Cir. 2008)
 
(quoting
Twombly
, 550 U.S. at 555).
6
 Id.
(citing
Twombly
, 550 U.S. at 556).
7
 Iqbal
, – U.S. –, 129 S. Ct. at 1949-50.
8
 Id.
at 1950.
2give the court reason to believe that
this
plaintiff has a reasonable likelihood of mustering factualsupport for
these
claims.”
2
The plausibility standard does not require a showing of probabilitythat “a defendant has acted unlawfully,”
3
but requires more than “a sheer possibility.”
4
The plausibility standard enunciated in
 Bell Atlantic Corp. v. Twombly
seeks a middleground between heightened fact pleading and “allowing complaints that are no more than ‘labelsand conclusions’ or ‘a formulaic recitation of the elements of a cause of action,’ which the Courtstated ‘will not do.’”
5
 
Twombly
does not change other principles, such as that a court mustaccept all factual allegations as true and may not dismiss on the ground that it appears unlikelythe allegations can be proven.
6
 The Supreme Court has explained the analysis as a two-step process. For the purposes of a motion to dismiss, the court “must take all the factual allegations in the complaint as true, [but]we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’”
7
Thus,the court must first determine if the allegations are factual and entitled to an assumption of truth,or merely legal conclusions that are not entitled to an assumption of truth.
8
Second, the courtmust determine whether the factual allegations, when assumed true, “plausibly give rise to an
Case 2:10-cv-02531-JAR -KMH Document 37 Filed 01/23/11 Page 2 of 9
 
9
 Id.
10
 Id.
at 1949.
3entitlement to relief.”
9
“A claim has facial plausibility when the plaintiff pleads factual contentthat allows the court to draw the reasonable inference that the defendant is liable for themisconduct alleged.”
10
 
II.The Complaint
The following facts are alleged in plaintiff’s Complaint and construed in the light mostfavorable to plaintiff. Plaintiff owns and operates an online document preparation businesslocated at the Internet domain name www.SimpleFilings.com (“plaintiff’s Website”). Throughplaintiff’s Website and for a fee, plaintiff offers the following services and products: (1)assistance with and custom forms and instructions for obtaining Employer IdentificationNumbers for taxation purposes; (2) assistance with and custom forms and instructions forforming limited liability companies, corporations, and other business entities; and (3) assistancewith and custom forms and instructions for registering DBAs. Plaintiff has federally registeredcopyrights in the content and source code of plaintiff’s Website.Defendant ThePlanet.com Internet Services, Inc. (“ThePlanet”) hosted at least threewebsites owned and operated by defendants INCOMEINC.COM, LTD., Matthew DouglasBrandenburg, Incomeinc, Inc., and Incorporate Success, LLC (collectively, the “Brandenburgdefendants”) that infringed plaintiff’s copyrights: www.IRS-EIN-online.com (“defendants’First Website”), www.federal-ein-application.com (“defendants’ Second Website”),www.federal-tax-identification.com (“defendants’ Third Website”) (collectively, “defendants’websites”).
Case 2:10-cv-02531-JAR -KMH Document 37 Filed 01/23/11 Page 3 of 9

Activity (2)

You've already reviewed this. Edit your review.
1 thousand reads
1 hundred reads

You're Reading a Free Preview

Download
/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->