Brown v. Netflix, Inc.

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

TAMITA A. BROWN, GLEN S. CHAPMAN, OPINION & ORDER

and JASON T. CHAPMAN, 19 Civ. 1507 (ER)

Plaintiffs,

– against –

NETFLIX, INC., AMAZON.COM, INC., and

APPLE INC.,

Defendants.

Ramos, D.J.:

Tamita Brown, Glen S. Chapman, and Jason T. Chapman (collectively, “Plaintiffs”) are

musicians who created the song Fish Sticks n’ Tater Tots (the “Song). In 2017, a documentary

film titled Burlesque: Heart of the Glitter Tribe (the “Film”) depicts a group of burlesque

dancers in Portland, Oregon, one of whom incorporated the Song in a performance.

Amazon.com, Inc. (“Amazon”), Netflix, Inc. (“Netflix”), and Apple Inc. (“Apple”) (collectively,

“Defendants”) are corporations that provide, among other products, video streaming services.1

The Film is available to view on Defendants’ platforms. Plaintiffs allege that the use of the Song

in the Film was unauthorized, and bring suit against Defendants for willful copyright

infringement. Before the Court is Defendants’ joint motion to dismiss the claims against Netflix

and Apple, and for judgement on the pleadings for Amazon. Doc. 28. Because the Court finds

the Film’s incorporation of the Song to be fair use, Defendants’ motion is GRANTED.

1 Streaming is the method by which film and television programs are delivered to viewers through computers and

other internet-enabled devices. Compl. ¶ 23–27, Doc. 5

I. BACKGROUND

A. Factual Background

Plaintiffs wrote, arranged, and recorded the Song in 2011. Compl. ¶ 15. he Song,

created for children, describes a student’s journey from her classroom to her school cafeteria to

eat fish sticks and tater tots for lunch. Defs.’ Mem. in Supp. of Mot. to Dismiss (“Mem. in

Supp.”), Doc. 29 at 10; Decl. of Jay Ward Brown (“Brown Decl.”), Ex. A (“CD of the Song”),

Doc. 30. hey were granted a U.S. Copyright Registration for the Song on May 1, 2012. Compl.

¶ 16.

On March 3, 2017, the Film was released on Defendants’ websites.2 Compl. ¶ 19. It

chronicles the stories of a group of burlesque dancers in Portland, Oregon through interviews,

backstage preparations, and on-stage performances. Mem. in Supp. at 2; Brown Decl., Ex. B

(“DVD Copy of Film”). In one scene, a dancer, who goes by the stage name Babs Jamboree,

performs an act in a food-themed show centered on the concept of a “reverse mermaid,” which,

in her telling, is a creature with the head of a fish and the legs of a woman. Mem. in Supp. at 3.

During the performance, Jamboree steps behind a sign labeled “hot oil” and emerges, having

removed her fish head and changed into brown leggings to appear as though she has been

transformed into fish sticks. DVD Copy of Film at 27:47–30:34. During the performance, eight

seconds of the Song plays, consisting of the lyrics “fish sticks n’ tater tots” sung by Brown a total

of five times. DVD Copy of Film at 29:55–30:03. he performance continues for approximately

20 more seconds with different songs in the background. DVD Copy of Film at 30:04–30:24.

he Film is available on Defendants’ websites for customers to purchase, rent, or stream. Compl.

¶¶22–27.

2 he record is silent as to who created the Film or when.

B. Procedural History

Plaintiffs filed the instant action on February 20, 2019, accusing Defendants of directly

infringing their right to publicly perform their work under 17 U.S.C. § 106(4); directly infringing

their right to reproduce their copyrighted work under 17 U.S.C. § 106(1); and of contributory and

vicarious copyright infringement, as well as inducement of copyright infringement, of their rights

of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. ¶¶ 37–79.

Amazon filed an Answer on April 22, 2019. Netflix and Apple did not answer the Complaint.

On November 13, 2019, Defendants jointly filed the instant motion to dismiss the claims against

Netflix and Apple pursuant to Federal Rule of Civil Procedure 12(b)(6), and for judgement on the

pleadings on the claims against Amazon pursuant to Rule 12(c). Mem. in Supp. 29.

II. STANDARD OF REVIEW

A. Rule 12(b)(6)

“To survive a motion to dismiss, 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 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is

facially plausible “when the plaintiff pleads factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing

Twombly, 550 U.S. at 556). he plaintiff must allege sufficient facts to show “more than a sheer

possibility that a defendant has acted unlawfully.” Id. (citing Twombly, 550 U.S. at 557).

However, this “flexible ‘plausibility standard’” is not a heightened pleading standard, In re

Elevator Antitrust Litig., 502 F.3d 47, 50 n.3 (2d Cir. 2007) (citation omitted), and “a complaint

. . . does not need detailed factual allegations” to survive a motion to dismiss. Twombly, 550

U.S. at 555.

he question on a motion to dismiss “is not whether a plaintiff will ultimately prevail but

whether the claimant is entitled to offer evidence to support the claims.” Sikhs for Justice v.

Nath, 893 F. Supp. 2d 598, 615 (S.D.N.Y. 2012) (quoting Villager Pond, Inc. v. Town of Darien,

56 F.3d 375, 378 (2d Cir. 1995)). “[T]he purpose of Federal Rule of Civil Procedure 12(b)(6) is

to test, in a streamlined fashion, the formal sufficiency of the plaintiff’s statement of a claim for

relief without resolving a contest regarding its substantive merits” or “weigh[ing] the evidence

that might be offered to support it.” Halebian v. Berv, 644 F.3d 122, 130 (2d Cir. 2011) (internal

citations and quotation marks omitted). Accordingly, when ruling on a motion to dismiss

pursuant to Rule 12(b)(6), the Court accepts all factual allegations in the complaint as true and

draws all reasonable inferences in the plaintiff’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir.

2014); see also Twombly, 550 U.S. at 556 (“[A] well-pleaded complaint may proceed even if it

strikes a savvy judge that actual proof of those facts is improbable . . . .”). “For purposes of this

rule, the complaint is deemed to include any written instrument attached to it as an exhibit or any

statements or documents incorporated in it by reference.” Chambers v. Time Warner, Inc., 282

F.3d 147, 152 (2d Cir. 2002) (internal quotation marks omitted).

B. Rule 12(c)

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings

are closed — but early enough not to delay trial — a party may move for judgment on the

pleadings.” Fed. R. Civ. P. 12(c). “he standard for granting a Rule 12(c) motion for judgment

on the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a

claim.” Lynch v. City of New York, 952 F.3d 67, 75 (2d Cir. 2020) (internal quotation marks

omitted). Accordingly, a motion for judgment on the pleadings should be granted “if, from the

pleadings, the moving party is entitled to judgment as a matter of law.” Burns Int'l Sec. Servs.,

Inc. v. Int'l Union, United Plant Guard Workers of Am. (UPGWA) & Its Local 537, 47 F.3d 14, 16

(2d Cir. 1995) (per curiam). he Court accepts as true the pleadings’ factual allegations and

draws all reasonable inferences in the non-movant’s favor. Nielsen v. Rabin, 746 F.3d 58, 62 (2d

Cir. 2014); see also Lombardo v. Dr. Seuss Enter., L.P., 279 F. Supp.3d 497, 505 (S.D.N.Y., 2017)

(noting that in considering a motion for judgement on the pleading “all pleadings — including

defendant's counterclaims — are taken to be true, subject to the same plausibility standard that

applies on a Rule 12(b)(6) motion”).

III. DISCUSSION

Plaintiffs assert two claims of direct copyright infringement — by public performance

under 17 U.S.C. § 106(4), and by reproduction under 17 U.S.C. § 106(1) — and three claims that

are contingent upon direct copyright infringement — inducement of copyright infringement,

contributory copyright infringement, and vicarious copyright infringement in violation of their

public performance and reproduction rights. Defendants do not dispute the validity of Plaintiffs’

copyright but argue that their use of the Song is fair use, which is a complete defense to direct

copyright infringement and, as a result, to any claims that are contingent on the direct

infringement. Plaintiffs, in turn, maintain that any fair use determination is premature at the

motion to dismiss stage and that, moreover, Defendants’ use was not fair.

he Court disagrees with Plaintiffs on both points and finds that Defendants’ use of the

song was fair. As such, the Court GRANTS Netflix and Apple’s motion to dismiss pursuant to

Rule 12(b)(6), as well as Amazon’s motion for judgment on the pleadings pursuant to Rule 12(c).

A. Fair Use at the Motion to Dismiss Stage

As an initial matter, Plaintiffs argue that the factual record is too premature to engage in a

fair use inquiry, and accordingly, that the motion should be denied. Pls.’ Mem. in Opp’n of Mot.

to Dismiss (Mem. in Opp’n), Doc. 32 at 2–3. Yet, Courts within this Circuit have consistently

considered motions to dismiss and motions for judgement on the pleadings regarding copyright

infringement claims. TCA Television Corp. v. McCollum, 839 F.3d 168, 178 (2d Cir. 2016)

(“[T]his court has acknowledged the possibility of fair use being so clearly established by a

complaint as to support dismissal of a copyright infringement claim.”); Kelly-Brown v. Winfrey,

717 F.3d 295, 308 (2d Cir. 2013) (finding motion to dismiss appropriate where “where the facts

necessary to establish the defense are evident on the face of the complaint.”); Lombardo, 279

F. Supp. at 505. he Court will therefore proceed to the merits of the motion.

B. Fair Use Defense to Direct Copyright Infringement

Copyright owners are entitled to six exclusive rights under 17 U.S.C § 106, including the

rights to “perform the copyrighted work publicly” and to “perform the copyrighted work publicly

by means of a digital audio transmission.” 17 U.S.C § 106 (4), (6). In order to state a claim for

infringement, “a plaintiff must allege both (1) ownership of a valid copyright and (2)

infringement of the copyright by the defendant.” Spinelli v. Nat’l Football League, 903 F.3d

185, 197 (2d Cir. 2018). However, “the fair use of a copyrighted work . . . is not an infringement

of copyright.” 17 U.S.C § 107. he following factors are used to determine whether use is fair:

(1) the purpose and character of the use, including whether such use is of a

commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the

copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the

copyrighted work

Id. Consideration of each factor is “mandatory.” Fox News Network, LLC v. Tveyes, Inc., 883

F.3d 169, 176 (2d Cir. 2018). he Court will therefore consider each of these factors in turn.

Factor One: Purpose and Character

he first statutory factor asks the Court to consider the “purpose and character” of the

reproduced work, also known as the work’s “secondary use.” 17 U.S.C. § 107(1). At the core of

this inquiry is whether the secondary use is transformative — understood as communicating a

“further purpose or different character, altering the first with new expression, meaning or

message.” Authors Guild, Inc. v. HathiTrust, 755 F.3d 87, 96 (2d Cir. 2014) (citing Campbell v.

Acuff-Rose Music, Inc., 510 U.S. 569, 579 (U.S. 1994)). hus, a transformative work is “one

that serves a new and different function from the original work and is not a substitute for it.” Id.

at 96. he use of unaltered copyrighted material — also known as raw material — is not

prohibited, and indeed, “raw material, transformed in the creation of new information, new

aesthetics, new insights and understandings . . . is the very type of activity” contemplated by the

fair use doctrine. Blanch v. Koons, 467 F.3d 244, 252 (2d Cir. 2006). he inquiry must also

consider whether the copyrighted materials are for a commercial or nonprofit educational

purpose, finding “the former tending to weigh against a finding of fair use.” TCA Television

Corp., 839 F.3d at 183 (internal quotation marks omitted). Yet, a finding of commercial use is

not dispositive, as “the more transformative the new work, the less significance of other factors,

like commercialism.” Id.

Plaintiffs argue that because the Song itself is “unaltered,” its use cannot be

transformative, and that because the subject of both works is “fish sticks,” that the idea

underlying the Song and the performance are “exactly the same.” Mem. in Opp’n at 5.

Moreover, they also suggest that record is underdeveloped as to whether the Film is a

documentary, and thereby has an educational purpose, or whether its purpose is purely

commercial, thereby making a finding of fair use premature at the motion to dismiss stage. Id.

at 3. Neither of these arguments is persuasive.

Plaintiffs argue that “[w]hen there is no alteration from the original there can be no [fair]

use.” Id. In support, they rely primarily on TCA Television Corp. v. McCollum; however, the

facts of that case are inapposite. In TCA Television Corp. v. McCollum, the secondary use not

only copied the raw material, but also duplicated “the comedic purpose of the original work,”

understood to be its original meaning. 839 F.3d at 184. Here, while Defendants do not alter the

Song and reference its concept of “fish sticks,” the performance serves a “new and different

function” from the Song, rather than offering merely a substitute for its tale of a student on her

way to lunch. HathiTrust, 755 F.3d at 96. Indeed, even Plaintiffs repeatedly note the differences

in purpose and character between the performance and the Song: the Song was created “with

children being the intended audience,” whereas the Film is “centered on strippers” and uses the

Song “while a scantily clad woman . . . begins to perform a strip dance routine.” Compl. ¶¶ 17–

18, 20; Mem. in Opp’n at 5. hese descriptions only confirm that Defendants’ use transforms the

Song: Whereas the Song communicates a light-hearted children’s story about a student looking

forward to lunch in the school cafeteria, the Film depicts decidedly mature themes that portray

fish sticks not as a lunch food, but as a component of a “reverse mermaid.” CD of the Song;

DVD Copy of Film at 27:47–30:34. hese are, undoubtedly, “new aesthetics.” Blanch, 467 F.3d

at 252.

As to whether or not the Film has a commercial purpose, Defendants argue that their

status as a commercial entity is irrelevant because the Film is transformative and is a

documentary, and accordingly, offers criticism or commentary. Mem. in Supp. 29 at 14.

Regardless of Plaintiffs’ claim that the Film is not a documentary — in contradiction of the

evidence available in the record plainly demonstrating its documentary nature — the commercial

nature of a work nonetheless is not determinative of the first factor analysis. DVD Copy of Film;

Campbell, 510 U.S. at 584 (noting that “nearly all of the illustrative uses listed in the preamble

paragraph of § 107 . . . are generally conducted for profit” (internal quotations omitted)). Even if

the Film were purely commercial, as Plaintiffs allege, because the secondary use is of a

transformative nature, the first factor still weighs in favor of Defendants. See Cariou v. Prince,

714 F.3d 694, 708 (2d Cir. 2013) (“Although there is no question that [Defendant’s] artworks are

commercial, we do not place much significance on that fact due to the transformative nature of

the work”).

hus, the first factor weighs in favor of Defendants.

Factor Two: Nature of the Copyrighted Work

he second statutory factor considers the “nature of the copyrighted work.” 17 U.S.C

§ 107(2). his factor “has rarely played a significant role in the determination of a fair use

dispute.” Authors Guild v. Google, Inc., 804 F.3d 202, 220. Indeed, because this analysis

“inevitably involves” the first factor’s transformative purpose inquiry, “the second factor may be

of limited usefulness where the creative work of art is being used for a transformative purpose.”

Id.; Blanch, 467 F.3d at 257.

Plaintiffs argue that the Song is intended for creative expression for public dissemination

and that this factor weighs in their favor because Defendants have not provided a persuasive

justification for their use. Mem. in Opp’n at 10. Notwithstanding Plaintiffs’ characterization of

the Song, the transformative nature of the Film renders the second factor “of limited usefulness.”

Blanch, 467 F.3d at 257. And while Plaintiffs argue that Defendants have not provided an

adequate justification for their use, such requirement is satisfied when the secondary use is found

to be transformative. Google, Inc., 804 F.3d at 220 (finding the second factor “not dispositive”

when the secondary use is transformative, even if “one (or all) of the plaintiff works were

[creative]”); Fox News Network, LLC, 883 F.3d at 178 (finding that where the first statutory

factor favors secondary use due to modest transformative use — “albeit slightly” — the second

factor “plays no significant role”).

Accordingly, the second factor is neutral.

Factor ^ree: Amount and Substantiality

he third statutory factor considers the “amount and substantiality of the portion used in

relation to the copyrighted work as a whole.” 17 U.S.C § 107(3). he analysis is “with reference

to the allegedly copyrighted work, not the infringing work.” Bill Graham Archives v. Dorling

Kindersley Ltd., 448 F.3d 605, 613 (2d Cir. 2006). he factor “calls for thought not only about

the quantity of the materials used, but about their quality and importance, too.” Campbell, 510

U.S. at 587. he quantitative inquiry considers whether the secondary use “employs more of the

copyrighted work than is necessary,” whereas the qualitative inquiry asks whether the use was

“excessive in relation to any valid purposes asserted under the first factor.” HathiTrust, 755 F.3d

at 96 (citing Campbell, 510 U.S. at 588 (1994)). If the use qualitatively amounts to “the heart”

of the original work, although quantitatively minimal, the use could be considered substantial;

however, use of “the heart” of the copyrighted work is not dispositive. Indeed, when the work is

transformative, “the secondary use must be [permitted] to conjure up at least enough of the

original to fulfill its transformative purpose.” Cariou, 714 F.3d at 710 (citing Campbell, 510

U.S. at 588) (internal quotation marks omitted).

Quantitatively, the Film uses eight seconds of the Song’s 190 seconds, or 4.21 percent of

the Song. Mem. in Opp’n at 11; DVD Copy of Film at 29:55–30:03. Plaintiffs argue that

because the segment used is repeated three times in the Song, that the total used is more

accurately 12.63 percent of the Song. Mem. in Opp’n at 11. Yet Plaintiffs do not point to a

single instance in which a copyrighted work’s repeated refrain was counted more than once for

the quantitative assessment. Mem. in Opp’n at 11. his component, therefore, favors

Defendants.

Repetition can, however, be considered in the qualitative inquiry. Plaintiffs argue that the

segment used in the Film represents the “heart” of the Song, noting that the cited passage is the

chorus that gives the Song its name and is repeated throughout the Song. Mem. in Opp’n at 11.

Even assuming that this segment is the “heart” of the Song, this does not end the analysis. See,

Lennon v. Premise Media Corp., 556 F. Supp. 2d 310, 326 (S.D.N.Y 2008) (finding that the

secondary use’s inclusion of a musical phrase used in 50 percent of the copyrighted material was

not excessive, even though it contained the heart of the original material). Where the heart of the

copyrighted work is at the core of the transformative character, use of the heart is permissible “to

fulfill its transformative purpose.” Cariou, 714 F.3d at 710; see Lennon, 556 F. Supp. 2d at 326

(finding it was “not clear that defendants could have used any portion of the song [to fulfill its

transformational purpose] without ending up with an excerpt” at the copyrighted work’s heart).

hus, use of the “heart” of a work is permissible when it is necessary to achieve its

transformation. Such is the case with Defendants’ use — the dance depicted in the Film requires

the phrase “fish sticks and tater tots” to communicate the “reverse mermaid” transformation.

herefore, the third factor’s qualitative component also favors Defendants.

Because the portion of the Song used by Defendants is neither quantitively nor

qualitatively excessive, the third factor weighs in favor of a finding of fair use.

Factor Four: Effect Upon the Potential Market or Value

he fourth factor considers “the effect of the [secondary] use upon the potential market

for or value of the copyrighted work.” 17 U.S.C. § 107(4). his factor is “undoubtedly the single

most important element of fair use.” Harper & Row Publishers, Inc. v. Nation Enters., 471 U.S.

539, 566, (1985). he critical inquiry is whether the secondary use “usurps” the market of the

original, “where the infringer’s target audience and the nature of the infringing content is the

same as the original.” Cariou, 714 F.3d at 709. In such instances, the secondary use competes

with the original “so as to deprive the rights holder of significant revenues because of the

likelihood that potential purchasers may opt to acquire the copy in preference to the original.”

Google, Inc., 804 F.3d at 223. his likelihood is closely linked to the first factor, as “the more the

copying is done to achieve a purpose that differs from the purpose of the original, the less likely

it is that the copy will serve as a satisfactory substitute for the original.” Id. (citing Campbell,

510 U.S. at 591). Critically, the fourth factor must also consider “‘not only the . . . market harm

caused by the particular actions of the alleged infringer,’ but also the market harm that would

result from ‘unrestricted and widespread conduct of the [same] sort.’” Fox News Network, LLC,

883 F.3d at 179 (citing Campbell, 510 U.S. at 590).

Here, the fourth factor weighs decisively in favor of Defendants. Plaintiffs repeatedly

acknowledge that the Film targets a different audience from their own, noting that they “created

the Song with children being the intended audience,” whereas the Film is “centered on strippers”

and is used “during a scene in which a woman dances to the Song while removing her clothing.”

Compl. ¶¶ 17–18, 20. As the Film’s use is transformative of the original, the potential market —

children or those who would acquire the Song on behalf of children — would not “opt to acquire

the copy” of a limited eight seconds of the Song “in preference to the original.” Google, Inc.,

804 F.3d at 223 (finding that an online service deemed transformational, which allows users to

view only “snippets” of books, did not create a competing substitute for the books). Put another

way, it is unlikely that parents would purchase copies of the film for their minor children so that

they could hear the excerpt of the Song in the Film.

Plaintiffs also argue that if such use of the Song were to become widespread, that is,

“without first obtaining a license from [them],” Plaintiffs would potentially be precluded “from

participating in at least two entire segments of the music industry,” which they identify as “music

for an individual to at least appear to dance to, and as background music” in films. Mem. in

Opp’n at 13. Yet, “not every effect on potential licensing revenues enters the analysis under the

fourth factor,” and a copyright holder “has no right to demand that users take a license unless the

use that would be made is one that would otherwise infringe an exclusive right.” Fox News

Network, LLC, 883 F.3d at 180 (internal quotation marks omitted). Moreover, only impacts on

“potential licensing revenues for traditional, reasonable, or likely to be developed markets should

be legally cognizable.” Id. Here, it is unreasonable to consider the potential uses named by

Plaintiffs, which were unalleged in their complaint and only provided in response to Defendants’

motion. Because Defendants met their burden by showing that the Film’s secondary use would

not usurp that of the original, other similarly hypothetical uses would equally not deprive them of

prospective audiences. hus, the fourth factor weighs in favor of Defendants.

* * *

Because the first, third, and fourth factors weigh in favor of Defendants, and the second

factor is merely neutral, their alleged use of the Song is fair within the meaning of 17 U.S.C

§ 107. Accordingly, Plaintiffs’ claims of direct copyright infringement by public performance

and reproduction fail to meet the pleading standard required by Rules 12(b)(6) and 12(c). See

Lynch, 952 F.3d at 75 (finding the “standard for granting a Rule 12(c) motion for judgment on

the pleadings is identical to that [for granting] a Rule 12(b)(6) motion for failure to state a

claim”).

C. Contributory, Vicarious, and Inducement of Copyright Infringement

Plaintiffs also assert claims for inducement of copyright infringement, contributory

copyright infringement, and vicarious copyright infringement in violation of their exclusive

rights of reproduction and public performance under 17 U.S.C. §106 (1), (4). Compl. 37-79.

While the Copyright Act does not create liability for contributory, vicarious, or inducement of

copyright infringement, “the common-law doctrine that one who knowingly participates or

furthers a tortious act is jointly and severally liable with the prime [sic] tortfeasor.” Arista

Records, LLC v. Doe 3, 604 F.3d 110, 117 (2d Cir. 2010). However, there can be no contributory,

vicarious, or inducement of infringement where no direct infringement exists. Cariou, 714 F.3d

at 712. Because Defendants have successfully invoked the doctrine of fair use, no underlying

direct infringement exists. Fox News Network, LLC, 883 F.3d at 176 (finding fair use is an

affirmative defense to copyright infringement). Accordingly, Plaintiffs’ claims for inducement of

copyright infringement, contributory copyright infringement, and vicarious copyright

infringement also fail to meet the requirements of both Rules 12(b)(6) and 12(c).

IV. CONCLUSION

For the reasons stated above, the Defendants’ motion to dismiss and for judgement on the

pleadings is GRANTED with prejudice. The Clerk of Court is respectfully directed to terminate

the motion, Doc. 28, and to close the case.

It is SO ORDERED.

Dated: May 27, 2020 ele. CV | 2

New York, New York \

Edgardo Ramos, U.S.D.J.

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