United States District Court, M.D. Tennessee, Nashville Division
Honorable Kevin H. Sharp, Chief United States District Judge.
REPORT AND RECOMMENDATION
BROWN United States Magistrate Judge.
pending is a motion to dismiss (Doc. 18) filed by Defendants
Jerry Norman p/k/a Norm Daniels, Paramountsong.com
(“Paramount”), and StarTune Records
(“StarTune”). Upon consideration of the motion,
the Magistrate Judge RECOMMENDS that the motion to dismiss
(Doc. 18) be GRANTED; the claims of copyright infringement,
breach of contract, and piracy be DISMISSED under Rule
12(b)(6) and 28 U.S.C. § 1915(e)(2)(B)(ii); that any
appeal NOT BE CERTIFIED as taken in good faith under 28
U.S.C. § 1915(a)(3); and that the Plaintiff's motion
to expedite the case (Doc. 25) be TERMINATED AS MOOT.
2015, the Plaintiff entered into a “Songwriter
Contract” with Paramount. (Doc. 1-1, p. 8). For a fee,
Paramount would create a melody and produce a demo of a song
written by the Plaintiff titled “Momma Is Walking With
Angels” (“Song”). (Doc. 1-1, p. 8). Daniels
signed the Songwriter Contract on Paramount's behalf.
(Doc. 1-1, p. 8).
September 2, 2015, the Plaintiff entered into a “Record
Contract” with StarTune. (Doc. 1-1, p. 9). Pursuant to
the Record Contract, StarTune would “reproduce, master
and place in major online digital record stores, iTunes and
Amazon MP3, recordings of” specified songs. (Doc. 1-1,
p. 9). It is assumed the Song was the subject of the Record
Contract. In exchange for StarTune acquiring nonexclusive
rights to “reproduce, distribute and sell digital
recordings, ” the Plaintiff would receive percentages
of the sales. (Doc. 1-1, pp. 9-10). StarTune would pay the
Plaintiff when $10 or more was due. (Doc. 1-1, p. 10). The
term of the Record Contract was one year from September 2,
2015. (Doc. 1-1, p. 9). Norman signed the Record Contract on
StarTune's behalf. (Doc. 1-1, p. 9). The Song was
registered by the United States Copyright Office effective
November 6, 2015. (Doc. 1-1, p. 4).
March 16, 2016, Paramount refunded the money the Plaintiff
had paid to StarTune and provided his earnings to-date from
iTunes and Amazon. (Doc. 1-1, p. 5). Representatives from
Paramount stated “[p]lease be advised that we will no
longer be maintaining your song on iTunes and Amazon, nor do
we wish to provide any other services for you.” (Doc.
1-1, p. 5).
Plaintiff apparently sought legal assistance, for on May 5,
2016, Daniels responded to a letter from an attorney in
Texas. (Doc. 1-1, p. 6). Daniels stated the Plaintiff had
received all royalties and funds due to him plus a refund of
his expenditures. (Doc. 1-1, p. 6). Though the
Plaintiff's Song may be available on iTunes or Amazon, he
only earns royalties when his music is paid for and
downloaded from those platforms. (Doc. 1-1, p. 6).
29, 2016, the Plaintiff asked Amazon's copyright
department to remove his Song from their online store and
investigate piracy. (Doc. 1-1, p. 15). A screenshot of an
Amazon website, purportedly dated July 28, 2016, shows the
Song was for sale as part of the album “Rainbow
Destiny.” (Doc. 1-1, pp. 1-3).
August 2016, the Plaintiff filed a complaint pro se,
alleging breach of contract, piracy, and “possible
copyright infringement.” (Doc. 1, p. 1 ¶ 1).
Referring to documents attached to the complaint, summarized
above, the Plaintiff's statement of the claim was:
“Company only paid $2.80 for royalties for November
2015 thru [sic] December 2015. No further royalties paid this
year.” (Doc. 1, p. 2 ¶ 4). He prayed for the
following relief: an accounting of royalties owed and paid,
removal of his Song from digital download stores, payment of
fees earned and not paid after the alleged breach of
contract, a fine for use of his Song after the alleged breach
of contract, and closure of the “company” on
account of fraudulent activity. (Doc. 1, p. 3 ¶ 5).
initial review of the complaint, the Court concluded it
pleaded a claim of copyright infringement which provided the
Court subject-matter jurisdiction. (Doc. 3, p. 2). The
Plaintiff was granted leave to proceed in forma
pauperis, and the case was referred to the undersigned
for disposition of pre-trial, non-dispositive motions and for
a report and recommendation on all dispositive motions. (Doc.
3, pp. 1, 3).
Plaintiff then filed a document titled “Breach of
Contract/Copyright Infringement.” (Doc. 5). He alleged
he was not paid royalties or provided an accounting of
earnings after December 2015. (Doc. 5, p. 1). Despite
Paramount's notice that it no longer worked for him as of
March 16, 2016, the Plaintiff complained his song was still
available for download online. (Doc. 5, p. 1). He prayed for
attorneys' fees, a “grievance fee, ” unpaid
royalties, and court costs. (Doc. 5, p. 2).
Defendants collectively moved to dismiss the suit for lack of
subject-matter jurisdiction and for failing to state a claim
upon which relief can be granted. (Doc. 18). The Plaintiff
filed a timely response. (Doc. 23). He claimed that Norm
Daniels and Jerry Norman are the same person. (Doc. 23, p.
1). Complaining he has not seen an accounting of his
earnings, he challenged the Defendants' assertion that he
did not earn additional royalties. (Doc. 23, p. 1). He again
claimed his song was advertised for sale after he received
Paramount's message that it no longer worked for him.
(Doc. 23, pp. 1-2). He requested punitive damages and alleged
he is entitled to $180, 000 on account of emotional and
mental damages to him and his family, as well as a ruined
songwriting career. (Doc. 23, pp. 2-3).
than one month later, the Plaintiff filed a motion to
expedite this case and deny the motion to dismiss. (Doc.
The Defendants responded to the motion to expedite. (Doc.
jurisdiction is a prerequisite to suit in federal court, and
it may not be waived or forfeited by the parties or the
court. Union Pac. R. Co. v. Bhd. of Locomotive Engineers
& Trainmen Gen. Comm. of Adjustment, Cent. Region,
558 U.S. 67, 81 (2009) (quoting Arbaugh v. Y&H
Corp., 546 U.S. 500, 514 (2006)). Challenges to a
court's subject-matter jurisdiction, i.e., the
court's power to hear a case may be facial or factual.
Fed.R.Civ.P. 12(b)(1); DLX, Inc. v. Kentucky, 381
F.3d 511, 516 (6th Cir. 2004) (citations omitted). A facial
attack focuses on whether the allegations in the complaint,
taken as true, provide grounds for jurisdiction. Glob.
Tech., Inc. v. Yubei (XinXiang) Power Steering Sys. Co.,
807 F.3d 806, 810 (6th Cir. 2015) (citation omitted). Where,
as here,  the factual basis for jurisdiction is
challenged, the allegations in the complaint are not presumed
to be true, and the court may weigh evidence to determine if
subject-matter jurisdiction exists. Id. (citations
omitted). The plaintiff bears the burden of proving the court
has subject-matter jurisdiction. Russell v.
Lundergan-Grimes, 784 F.3d 1037, 1045 (6th Cir. 2015)
(citing RMI Titanium Co. v. Westinghouse Elec.
Corp., 78 F.3d 1125, 1134 (6th Cir. 1996)).
a motion to dismiss for lack of subject-matter jurisdiction
is a procedural challenge, a motion to dismiss under Rule
12(b)(6) seeks a dismissal of the suit on the merits. To
progress beyond a Rule 12(b)(6) dispositive motion, the
complaint must contain sufficient factual allegations, taken
as true for purposes of the motion and construed in the
plaintiff's favor, to state a plausible claim for relief.
Luis v. Zang, 833 F.3d 619, 625-26 (6th Cir. 2016)
(citations omitted). The facts pled in the complaint must
permit “the court to draw the reasonable inference that
the defendant is liable for the misconduct alleged.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556
(2007)). The court may consider materials attached to the
complaint without turning the motion to dismiss into a motion
for summary judgment as long as the attachments are referred
to in the complaint and are central to the claims asserted
therein. Gavitt v. Born, 835 F.3d 623, 640 (6th Cir.
2016) (citations omitted). Complaints filed by individuals
proceeding pro se are held to lower standards than
pleadings created by attorneys and should be liberally
construed. Luis, 833 F.3d at 626 (quoting
Williams v. Curtin, 631 F.3d 380, 383 (6th Cir.
2011)). Pro se complaints are nevertheless held to
basic pleading standards. Wells v. Brown, 891 F.2d
591, 594 (6th Cir. 1989) (citations omitted). Stated simply,
[d]istrict courts are not required to conjure up questions
never squarely presented to them or to construct full blown
claims from sentence fragments. To do so would “require
. . . [the courts] to explore exhaustively all potential
claims of a pro se plaintiff, . . . [and] would . .
. transform the district court from its legitimate advisory
role to the improper role of ...