Brown v. Wallace

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 24-cv-01057-PAB-STV

OCIE L. BROWN, III,

Plaintiff,

v.

CARMELLA WALLACE,

UNIVERSAL MUSIC GROUP,

INTERSCOPE RECORDS,

OPUS MUSIC GROUP,

Defendants.

______________________________________________________________________

RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

______________________________________________________________________

Entered by Chief Magistrate Judge Scott T. Varholak

This matter is before the Court on Defendants’ Motion to Dismiss First Amended

Complaint (the “Motion”). [#52] The Motion has been referred to this Court. [#53] The

Court has carefully considered the Motion and related briefing, the entire case file, and

the applicable case law, and has determined that oral argument would not materially

assist in the disposition of the Motion. For the following reasons, the Court respectfully

RECOMMENDS that the Motion be GRANTED IN PART, as detailed herein.

I. FACTUAL BACKGROUND1

At some unspecified time,2 Plaintiff Ocie L. Brown, III, wrote and copyrighted

three works, titled: “Mine,” “Everything,” and “Facts As Usual.” [#32 at 83] Plaintiff

alleges that Jarad Higgins (known professionally as Juice WRLD) used portions of

Plaintiff’s lyrics in thirty-four different songs. [Id. at 11-12] Although Plaintiff does not

specify which, if any, of the thirty-four songs were released, some number of relevant,

unreleased songs were performed live on social media. [Id. at 8] The Estate of Jarad

Higgins eventually sold their catalog to Defendant Opus Music Group Investments, LLC,

with the assistance of the record label, Defendant UMG Recordings, Inc. [Id. at 7]

Plaintiff, proceeding pro se, initiated the instant action on April 19, 2024. [#1] He

filed the operative Complaint on August 26, 2024. [#32] The Complaint asserts a direct

claim for copyright infringement against Defendant Estate of Jarad Higgins (the

“Estate”) and contributory and vicarious infringement claims against Defendants UMG

Recordings, Inc. (“UMG”) and Opus Music Group Investments, LLC (“Opus”). [Id. at 7-

9] The Complaint seeks injunctive relief and damages for the alleged infringement of

Plaintiff’s copyright. [Id. at 8-9]

1 The facts are drawn from the allegations in Plaintiff’s Amended Complaint (the

“Complaint”) [#32], which must be taken as true when considering the Motion. See

Wilson v. Montano, 715 F.3d 847, 850 n.1 (10th Cir. 2013) (citing Brown v. Montoya,

662 F.3d 1152, 1162 (10th Cir. 2011)).

2 Plaintiff alleges that he “created the [c]opyrighted [w]ork [in] August 2015” [#32 at 8],

yet the exhibits attached to the Complaint demonstrate that “Facts as Usual” was

created in 2018 and “Everything” was created in 2019 [id. at 14-15].

3 For consistency and clarity, the Court refers to the page number printed on each page

of the .pdf document uploaded to the Electronic Court Filing system.

On October 2, 2024, Defendants filed the instant Motion, seeking dismissal of all

of Plaintiff’s claims with prejudice. [#52] Plaintiff has responded to the Motion [#56] and

Defendants have filed a reply [#59].

II. STANDARD OF REVIEW

A. Federal Rule of Civil Procedure 12(b)(2)

Federal Rule of Civil Procedure 12(b)(2) permits a party to move to dismiss

alleged claims against them for lack of personal jurisdiction. “Where the court’s

jurisdiction is contested, the plaintiff has the burden of proving jurisdiction exists.” AST

Sports Sci., Inc. v. CLF Distribution Ltd., 514 F.3d 1054, 1056 (10th Cir. 2008). “Where

a district court considers a pre-trial motion to dismiss for lack of personal jurisdiction

without conducting an evidentiary hearing, the plaintiff need only make a prima facie

showing of personal jurisdiction to defeat the motion.” Id. at 1056-57. “The plaintiff may

make this prima facie showing by demonstrating, via affidavit or other written materials,

facts that if true would support jurisdiction over the defendant.” OMI Holdings, Inc. v.

Royal Ins. Co. of Canada, 149 F.3d 1086, 1091 (10th Cir. 1998). The Court also

accepts the well-pleaded facts in the complaint “as true to the extent they are

uncontroverted by the defendant’s affidavits.” Wenz v. Memery Crystal, 55 F.3d 1503,

1505 (10th Cir. 1995). “If the parties present conflicting affidavits, all factual disputes

must be resolved in the plaintiff’s favor, and the plaintiff’s prima facie showing is

sufficient notwithstanding the contrary presentation by the moving party.” Id. (quotation

omitted). “In order to defeat a plaintiff’s prima facie showing of jurisdiction, a defendant

must present a compelling case demonstrating that the presence of some other

considerations would render jurisdiction unreasonable.” OMI Holdings, Inc., 149 F.3d at

1091 (quotation omitted).

B. Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a court may dismiss a complaint

for “failure to state a claim upon which relief can be granted.” In deciding a motion

under Rule 12(b)(6), a court must “accept as true all well-pleaded factual allegations . . .

and view these allegations in the light most favorable to the plaintiff.” Cassanova v.

Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010) (quoting Smith v. United States, 561 F.3d

1090, 1098 (10th Cir. 2009)). Nonetheless, a plaintiff may not rely on mere labels or

conclusions, “and a formulaic recitation of the elements of a cause of action will not do.”

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

“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 Twombly, 550 U.S. at 570). Plausibility

refers “to the scope of the allegations in a complaint: if they are so general that they

encompass a wide swath of conduct, much of it innocent, then the plaintiffs ‘have not

nudged their claims across the line from conceivable to plausible.’” Robbins v.

Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Twombly, 550 U.S. at 570).

“The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as

true) to suggest’ that he or she is entitled to relief.” Id. (quoting Twombly, 550 U.S. at

556). The ultimate duty of the court is to “determine whether the complaint sufficiently

alleges facts supporting all the elements necessary to establish an entitlement to relief

under the legal theory proposed.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160

(10th Cir. 2007).

C. Pro Se Litigants

“A pro se litigant’s pleadings are to be construed liberally and held to a less

stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon, 935 F.2d

1106, 1110 (10th Cir. 1991) (citing Haines v. Kerner, 404 U.S. 519, 520–21 (1972)).

“The Haines rule applies to all proceedings involving a pro se litigant.” Id. at 1110 n.3.

The Court, however, cannot be a pro se litigant’s advocate. See Yang v. Archuleta, 525

F.3d 925, 927 n.1 (10th Cir. 2008). Moreover, pro se parties must “follow the same

rules of procedure that govern other litigants.” Nielsen v. Price, 17 F.3d 1276, 1277

(10th Cir. 1994) (quoting Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992)).

III. ANALYSIS

In their Motion, Defendants raise two arguments to support dismissal: (1) the

Court lacks personal jurisdiction over the Defendants and (2) Plaintiff fails to allege a

viable copyright infringement claim. [#52] The Court agrees that it lacks personal

jurisdiction over Defendants.4

4 At the outset, the Court must dispose of Plaintiff’s request for a preliminary injunction.

[#56 at 1] Plaintiff has not moved for a preliminary injunction and cannot do so in

opposition to a motion to dismiss. Carrillo v. Castle, Stawiarki, LLC, No. 12-cv-00003-

WJM-MEH, 2012 WL 12809, at *1-2 (D. Colo. Jan. 4, 2012) (denying plaintiff’s request

for preliminary injunction where plaintiff failed to seek preliminary injunctive relief in a

separate, noticed motion).

A. Personal Jurisdiction

In determining whether a federal court has personal jurisdiction over a

nonresident defendant in a federal question case, the court must determine: first,

“whether the applicable statute potentially confers jurisdiction by authorizing service of

process on the defendant,” and second, “whether the exercise of jurisdiction comports

with due process.” Trujillo v. Williams, 465 F.3d 1210, 1217 (10th Cir. 2006) (quotations

omitted). Here, the federal Copyright Act, 17 U.S.C. § 101 et seq., does not provide for

nationwide service of process. Dudnikov v. Chalk & Vermilion Fine Arts, Inc., 514 F.3d

1063, 1070 (10th Cir. 2008). Thus, under Federal Rule of Civil Procedure 4(k)(1)(A),

the laws of the forum state, Colorado, dictate personal jurisdiction. Id. (Federal Rule of

Civil Procedure 4(k)(1)(A) “commands the district court . . . to apply the law of the state

in which the district court sits.”).

“A plaintiff seeking to invoke a Colorado court’s jurisdiction over a non-resident

defendant must comply with the requirements of [Colorado’s] long-arm statute and

constitutional due process.” Touchtone Grp., LLC v. Rink, 913 F. Supp. 2d 1063, 1074-

75 (D. Colo. 2012) (quoting Archangel Diamond Corp. v. Lukoil, 123 P.3d 1187, 1193

(Colo. 2005)). Because “Colorado's long-arm statute . . . confers the maximum

jurisdiction permissible consistent with the Due Process Clause . . . the first, statutory,

inquiry effectively collapses into the second, constitutional, analysis.” Dudnikov, 514

F.3d at 1070.

“Due process requires both that the defendant ‘purposefully established minimum

contacts within the forum State’ and that the ‘assertion of personal jurisdiction would

comport with fair play and substantial justice.’” Old Republic Ins. Co. v. Cont'l Motors,

Inc., 877 F.3d 895, 903 (10th Cir. 2017) (quoting Burger King Corp. v. Rudzewicz, 471

U.S. 462, 476 (1985)). “Depending on their relationship to the plaintiff’s cause of action,

an out-of-state defendant’s contacts with the forum state may give rise to either general

(all-purpose) jurisdiction or specific (case-linked) jurisdiction.” Id. “If a defendant is

subject to specific personal jurisdiction, the asserted cause(s) of action must arise from

the specific contacts with the forum that gave rise to jurisdiction; whereas, if a defendant

is subject to general personal jurisdiction, the asserted cause(s) of action may be

unrelated to the defendant’s contacts with the forum.” Carnrick v. Riekes Container

Corp., No. 15-cv-01899-CMA-KMT, 2016 WL 740998, at *2 (D. Colo. Feb. 24, 2016).

The Court first addresses whether it has general jurisdiction over Defendants,

then analyzes specific jurisdiction.

1. General Jurisdiction

A court obtains general personal jurisdiction “when a defendant is essentially at

home in the State.” Ford Motor Co. v. Mont. Eighth Judicial Dist. Court, 592 U.S. 351,

358 (2021) (quotations omitted). “With respect to a corporation the place of

incorporation and principal place of business are paradig[m] . . . bases for general

jurisdiction.” Daimler AG v. Bauman, 571 U.S. 117, 137 (2014) (quotation omitted). A

corporation can also be subject to general jurisdiction if it has “continuous and

systematic general business contacts with the forum State,” which emulate “physical

presence in the state.” Monge v. RG Petro-Mach. (Grp.) Co., 701 F.3d 598, 614 (10th

Cir. 2012) (quotations omitted).

Here, Plaintiff concedes in its Complaint that Carmela Wallace, also known as

the Estate, is not a citizen of Colorado and that neither Defendants UMG nor Opus’

place of incorporation nor principal place of business lies in Colorado. [#32 at 3-6] The

Complaint does not include any additional facts pertaining to general jurisdiction.

Accordingly, it cannot include sufficient facts to allege Defendants hold continuous and

systemic business contacts in Colorado sufficient to render it “at home” in this forum.

[See generally #32]

In the response to the Motion, Plaintiff asserts Defendants are conducting

business in Colorado, and in support argues, “[o]n October 14, 2024, [Defendants]

released one of Juice WRLD’s unreleased songs ‘Cavalier,’ one of the infringing songs.

The song was released across the internet including in Colorado.” [#56 at 3] But this

representation demonstrates that the infringing songs were distributed worldwide, with

no particular emphasis on Colorado. And the Tenth Circuit has “emphasiz[ed] that

general jurisdiction over a web site that has no intrinsic connection with a forum state

requires commercial activity carried on with forum residents in such a sustained manner

that it is tantamount to actual physical presence within the state.” Shrader v. Biddinger,

633 F.3d 1235, 1246 (10th Cir. 2011). Plaintiff has failed to make such a showing, as

neither the Complaint nor the response provides any information regarding which

websites or platforms published the infringing songs, or the frequency with which those

songs were accessed by Colorado residents. And Plaintiff does not address whether

Defendants posted the infringing songs on websites that are specifically directed to

Colorado residents or businesses. The Court therefore has no information to conclude

how Defendants and those websites interact with Colorado. Thus, the Court finds that

Plaintiff has failed to establish that Defendants have sufficient contacts with Colorado

such that Colorado has general jurisdiction over Defendants.

2. Specific Jurisdiction

“Specific jurisdiction calls for a two-step inquiry: (a) whether the plaintiff has

shown that the defendant has minimum contacts with the forum state; and, if so, (b)

whether the defendant has presented a ‘compelling case that the presence of some

other considerations would render jurisdiction unreasonable.’” Old Republic Ins. Co.,

877 F.3d at 904 (quoting Burger King, 471 U.S. at 476-77). “[T]he ‘minimum contacts’

test for specific jurisdiction encompasses two distinct requirements: first, that the out-of-

state defendant must have ‘purposefully directed’ its activities at residents of the forum

state, and second, that the plaintiff's injuries must ‘arise out of’ defendant's forum-

related activities.” Shrader, 633 F.3d at 1239 (quotation omitted).

Plaintiff argues that Defendant committed an intentional tort—copyright

infringement—that caused harm in Colorado. [See generally #32] In determining

personal jurisdiction for tort-based actions, courts apply a “purposeful direction” test.

Niemi v. Lasshofer, 770 F.3d 1331, 1348 (10th Cir. 2014) Under that test, the court

may exercise personal jurisdiction over a non-resident defendant where there is

evidence of: “(a) an intentional action . . . that was (b) expressly aimed at the forum

state . . . with (c) knowledge that the brunt of the injury would be felt in the forum state.”

Id.; see also Ullom v. Doctors Collection Serv., Inc., No. 17-cv-0740-WJM-STV, 2018

WL 619755, at *3 (D. Colo. Jan. 30, 2018) (“A plaintiff must establish not only that

defendants foresaw (or knew) that the effects of their conduct would be felt in the forum

state, but also that defendants undertook intentional actions that were expressly aimed

at that forum state.” (quotation omitted)). The focus of this analysis is on “the

relationship among the defendant, the forum, and the litigation,” not the relationship

between Plaintiff and Defendant. Calder v. Jones, 465 U.S. 783, 788 (1984) (quotation

and emphasis omitted). As the Supreme Court has explained:

[M]ere injury to a forum resident is not a sufficient connection to the forum.

Regardless of where a plaintiff lives or works, an injury is jurisdictionally

relevant only insofar as it shows that the defendant has formed a contact

with the forum State. The proper question is not where the plaintiff

experienced a particular injury or effect but whether the defendant's

conduct connects him to the forum in a meaningful way.

Walden v. Fiore, 571 U.S. 277, 290 (2014) Thus, in order for Plaintiff to successfully

show that Defendants’ alleged copyright infringement creates personal jurisdiction,

Plaintiff must show that Defendant purposefully directed its conduct toward Colorado.

To show that Defendant purposefully directed its infringing actions toward

Colorado, Plaintiff states that he and Jarad Higgins played video games together; Mr.

Higgins knew Plaintiff lived in Colorado; and “on October 14, 2024, [Defendants]

released one of the alleged infringed songs – “Cavalier,” on several platforms. All the

platforms have reached Colorado.” [#56 at 2-3 (“The song was released across the

internet including in Colorado.”)]

In Shrader, the Tenth Circuit observed that internet activities such as internet

posting are “peculiarly non-territorial” because “the internet operates ‘in’ every state

regardless of where the user is physically located” and “when a person places

information on the Internet, he can communicate with persons in virtually every

jurisdiction.” 633 F.3d at 1240 (quotation omitted). The Tenth Circuit cautioned that if

courts are to conclude that, as a general matter, “a person's act of placing information

on the Internet subjects that person to personal jurisdiction in each State in which the

information is accessed, then the defense of personal jurisdiction, in the sense that a

State has geographically limited judicial power, would no longer exist.” Id. (quotation

omitted). As a result, “it is necessary to adapt the analysis of personal jurisdiction to

this unique circumstance by placing emphasis on the internet user or site intentionally

directing his/her/its activity or operation at the forum state rather than just having the

activity or operation accessible there.” Id. (emphasis in original).

In particular, Shrader instructs that we are to examine whether the defendant

“deliberately directed its message at an audience in the forum state and intended harm

to the plaintiff occurring primarily or particularly in the forum state.” Id. at 1241; but see

Old Republic, 877 F.3d at 917 n.35 (“[T]he ‘intending harm’ language in Shrader” should

not be taken “literally to mean that the defendant must actually intend to harm forum

state residents. . . . We instead ask whether the defendant intended its online content

to create effects specifically in the forum state.”). Addressing websites such as Internet

forums, the Tenth Circuit said that “merely posting information on the internet does not,

in itself, subject the poster to personal jurisdiction wherever that information may be

accessed. . . . Rather, . . . postings may give rise to personal jurisdiction if they are

directed specifically at a forum state audience or otherwise make the forum state the

focal point of the message.” Shrader, 633 F.3d at 1244. In Dudnikov, for example, the

plaintiffs sufficiently demonstrated personal jurisdiction through allegations and record

evidence that defendants sent a copyright infringement notice to eBay for the express

purpose of cancelling an auction by a Colorado business. 514 F.3d at 1075–76.

For purposes of the jurisdictional analysis, the Court accepts as true that Jarad

Higgins infringed Plaintiff’s copyright and that distribution of the allegedly infringing song

did make its way to Colorado. However, the Court's review of the Complaint and

Plaintiff’s response to the Motion highlights the “geographically-neutral content . . .

[and] geographically-neutral nature of the forum.” Shrader, 633 F.3d at 1245-46; [#56 at

2-3 (“The song was released across the internet including in Colorado.”)] The Court thus

concludes that Defendants targeted the infringing songs “at a nation-wide or world-wide

audience . . . with no inherent interest in or tie to” Colorado. Id. at 1246. Without proof

of intentional action purposefully directed toward Colorado and evidence that Colorado

residents engaged with Defendants, the Court cannot find specific personal jurisdiction

over the copyright infringement claim simply because the infringing songs were

distributed widely on the internet. Allison v. Wise, 621 F. Supp. 2d 1114, 1121 (D. Colo.

2007) (“[T]he . . . [c]omplaint evidences nothing more than that the economic impact of

[the defendant's] alleged copyright infringement is felt by plaintiff here in Colorado. Such

a circumstance is based on the mere fortuity that plaintiff happens to reside here, and is

patently insufficient to permit the assumption of personal jurisdiction over [the

defendant] in this forum.”); Impact Products., Inc. v. Impact Products., LLC, 341 F.

Supp. 2d 1186, 1191 (D. Colo. 2004) (“[T]hat [the defendant] may have infringed on [the

plaintiff’s] mark outside of Colorado, and did so knowing that [the plaintiff] was a

Colorado resident and that this infringement would have effects in Colorado, is not

sufficient to demonstrate ‘express aiming’ at this forum under the Calder test.”); see also

Cont'l Appliances, Inc. v. Thomas, No. C-12-1310 EMC, 2012 WL 3646887, at *3 (N.D.

Cal. Aug. 23, 2012) (“[R]ecent decisions [of the Ninth Circuit] make clear that an

allegation of copyright infringement with knowledge that the plaintiff resides in the forum

is insufficient, on its own, to establish express aiming.” (quotation omitted)).

B. Dismissal or Transfer for Lack of Personal Jurisdiction

As detailed above, Plaintiff has failed to establish jurisdiction over Defendants in

Colorado. Pursuant to 28 U.S.C. § 1631, when a court determines that it lacks personal

jurisdiction, it “shall, if it is in the interest of justice, transfer such action . . . to any other

such court . . . in which the action or appeal could have been brought.” Although

Section 1631 “contain[s] the word ‘shall,’ [the Tenth Circuit] ha[s] interpreted the phrase

‘if it is in the interest of justice’ to grant the district court discretion in making a decision

to transfer an action or instead to dismiss the action without prejudice.” Trujillo, 465

F.3d at 1222-23. “Factors considered in deciding whether a transfer is in the interest of

justice include [1] whether the claims would be time barred if filed anew in the proper

forum, [2] whether the claims alleged are likely to have merit, and [3] whether the claims

were filed in good faith or if, on the other hand, it was clear at the time of filing that the

court lacked the requisite jurisdiction.” In re Cline, 531 F.3d 1249, 1251 (10th Cir.

2008). “[W]here the court determines that it lacks jurisdiction and the interests of justice

require transfer rather than dismissal, ‘[t]he correct course . . . [is] to transfer the action

pursuant to [§ 1631].’” Trujillo, 465 F.3d at 1223 (quoting Ross v. Colo. Outward Bound

Sch., Inc., 822 F.2d 1524, 1527 (10th Cir. 1987)). Weighing these factors, the Court

concludes that the matter should be dismissed without prejudice, rather than

transferred.

First, because neither party addresses the statute of limitations here, and

because the other factors weigh against transfer even if Plaintiff’s claims would not be

time-barred, the Court need not determine the relevant statute of limitations period.

Second, with respect to whether the claims are likely to have merit, “a court is

authorized to consider the consequences of a transfer by taking ‘a peek at the merits’ to

avoid raising false hopes and wasting judicial resources that would result from

transferring a case which is clearly doomed.” Haugh v. Booker, 210 F.3d 1147, 1150

(10th Cir. 2000) (quoting Phillips v. Seiter, 173 F.3d 609, 610 (7th Cir. 1999)). Plaintiff

asserts claims of copyright infringement. [#32] “There are two elements to a copyright

infringement claim: ‘(1) ownership of a valid copyright, and (2) copying of constituent

elements of the work that are original.’” La Resolana Architects, PA v. Reno, Inc., 555

F.3d 1171, 1177 (10th Cir. 2009) (quoting Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499

U.S. 340, 361 (1991)). Here, Defendants contend that Plaintiff fails to adequately plead

copying. [#52 at 9-12] The Court agrees.

“A plaintiff can establish that the defendant copied his program either through the

presentation of direct evidence, or through indirect evidence that shows (1) that the

defendant had access to the copyrighted program, and (2) that there are probative

similarities between the copyrighted material and the allegedly copied material.” Gates

Rubber Co. v. Bando Chem. Indus., Ltd., 9 F.3d 823, 832 (10th Cir. 1993). While a

plaintiff is not required to demonstrate the defendant's actual access to the work,

“evidence that only creates a bare possibility that the defendant had access is not

sufficient.” La Resolana Architects, 555 F.3d at 1178 (quoting Mag Jewelry Co. v.

Cherokee, Inc., 496 F.3d 108, 117 (1st Cir.2007)).

As indirect evidence of copying, Plaintiff alleges that he and Mr. Higgins played

video games together and “while having contact with Juice WRLD and associates close

to Juice WRLD . . . the Defendant was able to obtain access to the Copyrighted Work.”

[#32 at 8-9] As an initial matter, the bald allegation that “Defendant was able to obtain

access to the Copyrighted Work” is a mere conclusion, devoid of facts to support an

inference that Mr. Higgins or any of his unnamed associates directly accessed the

copyrighted works. Moreover, it is unclear how Mr. Higgins had a reasonable

opportunity to view or copy the copyrighted works when playing video games with

Plaintiff. And the Court need not accept unreasonable inferences or unwarranted

deductions of fact. Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007) (“unreasonable

inferences . . . are insufficient to defeat a motion to dismiss”). Nor may this court

“supply additional factual allegations to round out a plaintiff's complaint.” Whitney v.

State of New Mexico, 113 F.3d 1170, 1173–74 (10th Cir. 1997). Finally, to logically

support a claim that Mr. Higgins copied Plaintiff's work, Mr. Higgins must have had

access to Plaintiff's copyrighted work before the creation of the allegedly infringing work.

And here Plaintiff does not allege any dates associated with the purported access. [See

generally #32] Accordingly, the pleadings fail to set forth any chain of events

connecting the copyrighted works to the Estate. And Plaintiff’s failure to adequately

allege direct infringement against the Estate is, by itself, fatal to his claims for secondary

liability. La Resolana Architects, 555 F.3d at 1181 (“[B]oth contributory and vicarious

infringements require someone to have directly infringed the copyright.”). In sum,

because the Complaint fails to plead access, the claims alleged are unlikely to have

merit.

Finally, as to the third factor, the Court concludes that it was clear at the time of

filing that the Court lacked the requisite jurisdiction, which warrants dismissal as

opposed to transfer.

Accordingly, the Court finds that the interests of justice in this case require

dismissal without prejudice rather than transfer. See Brereton v. Bountiful City Corp.,

434 F.3d 1213, 1216 (10th Cir. 2006) (“A longstanding line of cases from this circuit

holds that where the district court dismisses an action for lack of jurisdiction, as it did

here, the dismissal must be without prejudice.”); Oxendine v. Kaplan, 241 F.3d 1272,

1275 (10th Cir. 2001) (holding that when the plaintiff is proceeding pro se, dismissal

with prejudice is only appropriate “where it is obvious that the plaintiff cannot prevail on

the facts he has alleged and it would be futile to give him an opportunity to amend”

(quotation omitted)); Reynoldson v. Shillinger, 907 F.2d 124, 127 (10th Cir. 1990)

(holding prejudice should not attach to dismissal when plaintiff has made allegations

“which, upon further investigation and development, could raise substantial issues”).5

IV. CONCLUSION

For the foregoing reasons, this Court respectfully RECOMMENDS that

Defendants’ Motion [#52] be GRANTED IN PART, and that Plaintiff’s Amended

Complaint [#32] be DISMISSED WITHOUT PREJUICE.6

5 Defendant sought dismissal with prejudice. [#52 at 2] As these cases demonstrate,

dismissal should be without prejudice. Thus, the Court RECOMMENDS that the Motion

be DENIED to the extent it seeks dismissal with prejudice.

6 Within fourteen days after service of a copy of this Recommendation, any party may

serve and file written objections to the magistrate judge’s proposed findings of fact, legal

conclusions, and recommendations with the Clerk of the United States District Court for

the District of Colorado. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); Griego v. Padilla

(In re Griego), 64 F.3d 580, 583 (10th Cir. 1995). A general objection that does not put

the district court on notice of the basis for the objection will not preserve the objection

for de novo review. “[A] party’s objections to the magistrate judge’s report and

recommendation must be both timely and specific to preserve an issue for de novo

review by the district court or for appellate review.” United States v. 2121 East 30th

Street, 73 F.3d 1057, 1060 (10th Cir. 1996). Failure to make timely objections may bar

de novo review by the district judge of the magistrate judge’s proposed findings of fact,

legal conclusions, and recommendations and will result in a waiver of the right to appeal

DATED: February 28, 2025 BY THE COURT:

s/Scott T. Varholak

Chief United States Magistrate Judge

from a judgment of the district court based on the proposed findings of fact, legal

conclusions, and recommendations of the magistrate judge. See Vega v. Suthers, 195

F.3d 573, 579-80 (10th Cir. 1999) (holding that the district court’s decision to review

magistrate judge’s recommendation de novo despite lack of an objection does not

preclude application of “firm waiver rule”); Int’l Surplus Lines Ins. Co. v. Wyo. Coal

Refining Sys., Inc., 52 F.3d 901, 904 (10th Cir. 1995) (finding that cross-claimant

waived right to appeal certain portions of magistrate judge’s order by failing to object to

those portions); Ayala v. United States, 980 F.2d 1342, 1352 (10th Cir. 1992) (finding

that plaintiffs waived their right to appeal the magistrate judge’s ruling by failing to file

objections). But see, Morales-Fernandez v. INS, 418 F.3d 1116, 1122 (10th Cir. 2005)

(holding that firm waiver rule does not apply when the interests of justice require

review).