Dugan

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF OKLAHOMA

ALEXANDRA DUGAN, )

)

Plaintiff, )

)

v. ) Case No. CIV-25-157-SLP

)

)

EXERGEN CORPORATION, a )

Massachusetts Corporation, )

)

Defendant. )

O R D E R

Before the Court is Defendant Exergen Corporation’s Motion to Partially Dismiss

Plaintiff’s First Amended Complaint and Brief in Support [Doc. No. 31] (the Motion).

Plaintiffs filed a Response [Doc. No. 37] and the matter is at issue.1 For the reasons that

follow, Defendant Exergen Corporation’s (Exergen’s) Motion is granted in part and denied

in part.

I. Introduction

This action arises out of Exergen’s and Boston Digital Enterprises, LLC’s (Boston

Digital’s)2 unauthorized use of copyrighted photographs created by Plaintiff. See generally

First Am. Compl. [Doc. No. 25]. Plaintiff brings the following claims against Exergen:

violation of the Digital Millenium Copyright Act, 17 U.S.C. §§ 1201 et seq. (Count 1);

direct copyright infringement under the Copyright Act, 17 U.S.C. §§ 501 et seq. (Counts 2

1 Citations to the parties’ briefing submissions reference the Court’s ECF pagination.

2 On March 26, 2026, the Court dismissed Plaintiff’s claims against Boston Digital for lack of

personal jurisdiction pursuant to Fed. R. Civ. P. 12(b)(2). See generally Order [Doc. No. 46].

and 5)3; contributory copyright infringement (Counts 3 and 6); vicarious copyright

infringement (Counts 4 and 7); breach of contract (Counts 8 and 9); and fraud (Count 104).

Exergen has moved, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss some of

Plaintiff’s claims for failure to state a claim. First, Exergen asserts that Plaintiff has failed

to plead facts necessary to support her fraud claim (Count 10) under both Rule 9(b) and

Rule 12(b)(6). Second, Exergen asserts that Plaintiff has not alleged sufficient facts to

support her breach of contract (Counts 8 and 9), contributory copyright infringement

(Counts 3 and 6), and vicarious copyright infringement claims against Exergen (Counts 4

and 7). Exergen has not moved for dismissal of Plaintiff’s DMCA claim and direct

copyright infringement claims (Counts 1, 2 and 5).

II. Standard of Review

To withstand a motion to dismiss under Rule 12(b)(6), “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) (citing Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). A facially plausible complaint contains “factual content that allows

the court to draw the reasonable inference that the defendant is liable for the misconduct

alleged.” S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014) (quoting Iqbal, 556 U.S. at

3 Plaintiff brings two distinct copyright claims as a result of two separate copyrighted images

being allegedly appropriated by Boston Digital and Exergen. See generally First Am. Compl.

[Doc. No. 25] at ¶¶ 36-3.

4 The First Amended Complaint contains two claims labeled as “Claim 9”, the latter being

Plaintiff’s fraud claim. See First Am. Compl. [Doc. No. 25] at ¶¶ 104-114. To avoid confusion,

the Court refers to the fraud claim as Count 10.

678). While the complaint need not contain “detailed factual allegations,” it must include

“more than labels and conclusions” or a “formulaic recitation of the elements of a cause of

action” to avoid dismissal. Twombly, 550 U.S. at 555. The Court views the allegations in

the light most favorable to the Plaintiff and draws all reasonable inferences in the Plaintiff’s

favor. See, e.g., Brown v. City of Tulsa, 124 F.4th 1251, 1263 (10th Cir. 2025).

III. Factual Allegations of the Complaint

The Court summarizes the facts of the Amended Complaint pertinent to the claims

at issue in Exergen’s Motion. Plaintiff Alexandra Dugan is a professional photographer.

See First Am. Compl. [Doc. No. 25] at ¶ 1. Exergen is a medical device manufacturer. See

id. at ¶ 2. Boston Digital is a company that provides advertising and marketing services.

See id. at ¶ 3.

In May of 2024, Exergen retained Boston Digital to, among other tasks, provide

design services for Exergen’s website. See id. at ¶ 7. On June 12, 2024, Plaintiff was

introduced by a business associate to Dylan Wilson (Wilson), the Creative Director at

Boston Digital, and another Boston Digital employee. See id. at ¶ 8. On June 17, 2024,

Wilson called Plaintiff and explained that “Defendants5 needed photographs of Exergen’s

pediatric thermometers being used in a clinical environment.” See First Am. Compl. [Doc.

No. 25] at ¶ 10.

5 While Boston Digital has been dismissed from the matter, the Court uses term “Defendants” to

refer to Boston Digital and Exergen as Plaintiff used the term throughout the First Amended

Complaint and her response brief to Exergen’s Motion. See generally id; Resp. [Doc. No. 37].

The photoshoot occurred at a pediatric clinic in Edmond, Oklahoma on June 19,

2024, where Plaintiff took photos and videos as requested by Wilson. See id. at ¶ 12. On

June 27, 2025, Plaintiff emailed Wilson regarding the photoshoot and that she would

provide photo proofs to the Defendants. See id. at ¶ 14. Plaintiff provided Wilson with a

link to an image gallery (the Proof Gallery) to view the photo proofs on July 8, 2024. See

id. at ¶ 15. Each of the images in the Proof Gallery contained a watermark with Dugan’s

initials and “embedded metadata listing [Plaintiff] as the copyright owner.” See id. at ¶ 16.

The Proof Gallery provided employees of Defendants with the ability to view the images,

but did not allow the employees to “download, copy, or modify the images without a

numeric pin.” See id. at ¶¶ 17-18. On July 9, 2024, Wilson contacted Ms. Dugan and

requested five high-resolution photographs of the proofs contained in the Proof Gallery

(the Dugan Photographs) for use in a Boston Digital internal presentation for Exergen. See

id. at ¶ 19. The Dugan Photographs contained copyright management information

indicating it was Plaintiff’s copyrighted work. See id. at ¶ 20. On July 11, 2024, Plaintiff

uploaded the Dugan Photographs and videos from the photoshoot to the file-sharing service

WeTransfer. See id. at ¶ 21. Wilson downloaded the Dugan Photographs and videos on

the same day and Boston Digital employees subsequently forwarded the WeTransfer link

to employees of Exergen. See id. at ¶¶ 21-22.

On August 13, 2024, Plaintiff was introduced by a Boston Digital employee to

Michelle Rico (Rico), an Exergen employee. See id. at ¶ 23. Plaintiff provided Rico with

access to the Proof Gallery and indicated that the images “were available for purchasing or

licensing but were not to be used or modified in any manner without [Plaintiff’s] consent.”

See id. at ¶ 24. Rico sent an email to Plaintiff on September 5, 2024, requesting pricing

for four of the images in the Proof Gallery. See id. at ¶ 25. Rico indicated in a September

6, 2024, email that the images would be used primarily for Exergen’s website and social

media, and “that Exegen would likely license the images as opposed to purchasing them

outright.” See id. at ¶ 27. On September 9, 2024, Plaintiff “provided Exergen with a formal

quote for licensing or purchasing the rights to use her photographs.” See id. at ¶ 28. Rico

stated in a follow-up email that “she was forwarding it to others at Exergen for review.”

See id.

On October 2, 2024, Wilson requested access to high-resolution photographs of

the images contained in the Proof Gallery as well as pricing for use of the photographs.

See id. at ¶ 30-31. Wilson indicated in a phone call with Plaintiff that same day “that he

would ‘ping’ Exergen as he expected that Exergen was planning on using the Dugan

Photographs on Exergen’s website.” See id. at ¶ 31. On October 10, 2024, Wilson emailed

Plaintiff and stated he forwarded the Proof Gallery link to employees of Exergen again.

See id. at ¶ 32. Plaintiff received no further communications from employees of Boston

Digital or Exergen after Wilson’s October 10, 2024 email. See id. at ¶ 33. Furthermore,

Boston Digital nor Exergen “paid for the use and modifications of the Dugan

Photographs[.]” See id. at ¶ 34. As of February 4, 2025, the date the original Complaint

was filed, modified versions of “two of the Dugan Photographs were posted and visible on

Exergen’s website” without permission or authorization from Plaintiff. See id. at ¶¶ 35-

44.

IV. Discussion

A. Fraud Claim (Count 10)

Whenever fraud is alleged, “a party must state with particularity the circumstances

constituting fraud[.]” Fed. R. Civ. P. 9(b). Critical to the “sufficiency of a pleading [under

Rule 9(b)] is the determination of how much detail is necessary to give adequate notice to

an adverse party.” Clinton v. Sec. Benefit Life Ins. Co., 63 F.4th 1264, 1277 (10th Cir.

2023) (cleaned up and citations omitted). A complaint satisfies Rule 9(b) when it

“identifie[s] the parties, the dates, the content of the communications, [and] how they were

allegedly fraudulent.” Tal v. Hogan, 453 F.3d 1244, 1265 (10th Cir. 2006). “Put differently,

a complaint stating the “who, what, where, when, and how” of the alleged fraud gives a

defendant the requisite level of notice required under Rule 9(b).” Clinton, 63 F.4th at 1277.

Here, Plaintiff’s claim against Exergen fails to sufficiently allege facts identifying “who”

at Exergen made a fraudulent statement.

Plaintiff has not sufficiently alleged that employees of Exergen made an intentional

misrepresentation to Plaintiff. The fraud claim is based on an alleged representation that

“Defendants would only use the Dugan Photographs downloaded from WeTransfer for the

sole purpose of an [sic] including them in an internal presentation concerning the Exergen

website.” See First Am. Compl. [Doc. No. 25] at ¶ 110. In the Amended Complaint,

Plaintiff alleges that Wilson, a Boston Digital employee, asked Plaintiff to provide the

Dugan Photographs “for a presentation Boston Digital was giving to Exergen” relating to

the Exergen website. Id. at ¶ 19. There are no allegations that an employee of Exergen

was using the photos for an internal presentation. Plaintiff’s response brief focuses on a

statement by Rico, an Exergen employee, who stated that Exergen would likely license the

Dugan Photographs. See Resp. [Doc. No. 37] at 11; First Am. Compl. [Doc. No. 25] at ¶

2. However, such statement has no meaningful relation to the use of the Dugan

Photographs for Boston Digital’s internal presentation. In the specific context of Plaintiff’s

fraud claim, there are no facts indicating an Exergen employee made a misrepresentation

to Plaintiff. Because of this deficiency, Plaintiff has not stated a particularized or plausible

claim of fraud against Exergen. Accordingly, Plaintiff’s fraud claim against Exergen is

subject to dismissal under Rule 12(b)(6) for failure to satisfy the pleading standards of both

Rule 9(b) and Rule 12(b)(6).

B. Breach of Contract Claims (Counts 8 and 9)

To state a claim for breach of contract under Oklahoma law, a plaintiff must allege:

(1) formation of a contract; (2) breach of that contract; and (3) damages as a direct result

of the breach. See Dig. Design Grp., Inc. v. Info. Builders, Inc., 24 P.3d 834, 843 (Okla.

2001).6 Exergen argues Plaintiff failed to allege facts sufficient to demonstrate the

formation of either of the alleged contracts. See Mot. [Doc. No. 31] at 6-8. “It is an

elementary rule of law that to constitute a contract, there must be an offer by one party and

an acceptance thereof by the other party.” Redwine Resources, Inc. v. Predator Techs.,

L.L.C., 171 P.3d 330, 334 (Okla. Civ. App. 2007) (citing Nat’l Outdoor Advert. Co. v.

Kalkhurst, 418 P.2d 661 (Okla. 1966)). “The consent of the parties [to the contract] must

6 Both parties cite to Oklahoma law for the elements of a breach of contract claim. Accordingly,

the Court will analyze such claims under Oklahoma law.

be mutual, and consent is not mutual unless the parties all agree upon the same thing in the

same sense.” Beck v. Reynolds, 903 P.2d 317, 319 (Okla. 1995) (cleaned up and citations

omitted).

As to the first breach of contract claim, Plaintiff alleges that “Ms. Dugan offered to

provide Defendants with images for use in an internal presentation related to Exergen’s

website, and in return Defendants would propose that Exergen use the Dugan Photographs

on the Exergen website.” First Am. Compl. [Doc. No. 25] at ¶ 99. Assuming, without

deciding, that a contract exists, Plaintiff has not sufficiently alleged facts demonstrating

Exergen’s involvement in any contract as to the use of the Dugan Photographs for Boston

Digital’s internal presentation. Similar to her fraud claim, Plaintiff relies on the alleged

statement of Wilson, a Boston Digital employee, who emailed Plaintiff and asked to use

the Dugan Photographs for a Boston Digital internal presentation about the Exergen

website project. Id. at ¶ 19. Plaintiff does not allege that an Exergen employee was

involved in the usage of the Dugan Photographs for the internal presentation. As such,

Exergen cannot be bound to an alleged contract that it was not a party to. While Plaintiff

argues in her response brief that Wilson was acting as an agent for Exergen in these

communications, the argument is underdeveloped and lacks a logical basis. Plaintiff

alleges that the consideration that the “Defendants” were providing was a promise to

“propose that Exergen use the Dugan Photographs on the Exergen website.” Id. at ¶ 99.

Even if the Court were to assume promises were exchanged between Plaintiff and Boston

Digital, only Boston Digital would propose the use of the Dugan Photographs to Exergen.

Plaintiff asks the Court to find a plausible claim where Exergen entered into a contract

where it agreed to propose to itself. The Court will not do so. Accordingly, the Court finds

that Plaintiff has failed to state a breach of contract claim against Exergen relating to the

usage of the Dugan Photographs for Boston Digital’s internal presentation.

However, Plaintiff has stated a plausible breach of contract claim against Exergen

relating to the use of the images on the Exergen website. Plaintiff alleges that she provided

Exergen employees “with a formal quote for licensing or purchasing the right to use” the

photographs taken at the pediatric clinic. See First Am. Compl. [Doc. No. 25] at ¶ 28.

Exergen employees indicated that Exergen would review the quote. Id. Plaintiff received

no further correspondence from Exergen. See id. at ¶ 29. Exergen asserts in their Motion

that no contract was formed as it was “Exergen’s business decision not to move forward

with licensing or purchasing the images after receiving the formal quote[.]” See Mot. [Doc.

No. 31] at 8. However, Plaintiff argues that Exergen accepted the contract by subsequently

using Plaintiff’s photographs. See Resp. [Doc. No. 37] at 15-16. Modified versions of two

of the Dugan Photographs were present on Exergen’s website after Plaintiff provided the

formal quote to Exergen. See First Am. Compl. [Doc. No. 25] at ¶¶ 35-39. “A voluntary

acceptance of the benefit of a transaction is equivalent to a consent to all the obligations

arising from it so far as the facts are known, or ought to be known to the person accepting.”

Okla. Stat. tit. 15 § 75; see also Okla. Stat. tit. 15 § 70 (“[A]cceptance of the consideration

offered with a proposal, is an acceptance of the proposal.”); Hardin v. First Cash Fin.

Servs., Inc., 465 F.3d 470, 476 (10th Cir. 2006). Plaintiff has plausibly alleged facts

demonstrating Exergen accepted the benefits of a contract by using the Dugan Photographs.

Accordingly, the Court finds that Plaintiff has alleged a plausible breach of contract claim

against Exergen relating to the usage of Plaintiff’s photographs on Exergen’s website.

C. Secondary Liability for Copyright Infringement (Counts 3, 4, 6, and 7)

Exergen also seeks dismissal of Plaintiff’s claims made on the basis of secondary

liability for copyright infringement. Courts have recognized the “imposition of liability

for copyright infringements on certain parties who have not themselves engaged in the

infringing activity.” E.g., Sony Corp. of Am. v. Universal City Studios, Inc., 464 U.S. 417,

435 (1986); Greer v. Moon, 83 F.4th 1283, 1287 (10th Cir. 2023). Plaintiff alleges claims

against Exergen under both vicarious liability and contributory liability theories relating to

Boston Digital’s alleged copyright infringement.7 Exergen asserts Plaintiff has failed to

allege facts sufficient under either theory.

Vicarious liability requires that the defendant has (1) “an obvious and direct

financial interest in the exploitation of copyrighted materials” and (2) “the right and ability

to supervise” the direct infringer. Greer, 83 F.4th at 1287; (internal quotation marks and

citations omitted); see also Diversey v. Schmidly, 738 F.3d 1196, 1204 (10th Cir. 2013).

Exergen asserts that Plaintiff’s allegations as to both elements are conclusory. The Court

disagrees. As to a direct financial interest, Plaintiff alleges that two modified versions of

the Dugan Photographs were present on the Exergen website for a period of time. See First

Am. Compl. [Doc. No. 25] at ¶¶ 35-40. Plaintiff also alleges that the Dugan Photographs

7 As previously discussed, Plaintiff also raises a direct copyright infringement claim against

Exergen.

depicted such products and were used to promote the products. E.g., id. at ¶¶ 10, 40. The

Court finds that Plaintiff has alleged sufficient facts demonstrating that Exergen received

a direct financial benefit from having two of the Dugan Photographs on its website to assist

in promoting their products. Plaintiff has also sufficiently alleged the second element to

establish vicarious liability. Exergen retained Boston Digital to create a website for

Exergen. See id. at ¶ 5. Plaintiff also alleges in the Amended Complaint that Exergen was

the party who would make the determination on whether to use the Dugan Photographs.

See id. at ¶ 31. Given the relationship between Boston Digital and Exergen, Plaintiff has

plausibly alleged that Exergen did have the ability to control the content that Boston Digital

used on Exergen’s website, including the use of two modified versions of the Dugan

Photographs. Id. at ¶¶ 79, 94. Accordingly, Plaintiff has sufficiently alleged a copyright

infringement claim against Exergen based on a vicarious liability theory.

To establish contributory liability, a plaintiff must allege: (1) direct infringement of

a copyright; (2) the defendant’s knowledge of the direct infringement; and (3) the defendant

contributed to the direct infringement. Greer, 83 F.4th at 1287; Diversey, 738 F.3d at 1204.

“One way of establishing contributory liability is by showing a defendant authorized the

infringing use.” Greer, 83 F.4th at 1287 (internal quotation marks and citations omitted).

Exergen does not dispute Plaintiff has sufficiently alleged a direct copyright infringement

occurred, rather, it argues Plaintiff has alleged no facts as to the other elements. See Mot.

[Doc. No. 31] at 9-10. The Court finds Exergen’s argument underdeveloped and not well-

taken.

“Contributory liability requires that the secondary infringer know or have reason to

know of direct infringement.” A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1020

(9th Cir. 2001) (internal quotations and citations omitted). Plaintiff alleges that she

mentioned on several occasions to Exergen employees that the Dugan Photographs would

need to be licensed or purchased and “were not to be used or modified in any manner

without [Plaintiff’s] consent.” See First Amended Complaint [Doc. No. 25] at ¶ 24, 26.

Exergen employees acknowledged the need to license or purchase the works before their

usage, stating Exergen would likely license the images. See id. at ¶ 27. Both the proofs of

the Dugan Photographs and the photographs themselves contained copyright management

information that indicated that the Dugan Photographs were copyrighted material of

Plaintiff. See id. at ¶¶ 16, 20. Plaintiff alleges that Exergen never paid for the use or

modification of the Dugan Photographs. See id. at ¶ 34. Modified versions of two of the

Dugan Photographs were later present on Exergen’s website. See id. at ¶¶ 35-39. The

Court finds that it is reasonable to infer that Exergen knew, or at least constructively knew,

of a direct copyright infringement where copyrighted photographs they had not paid to use

were present on the company’s own website. The Amended Complaint also alleges

sufficient facts to infer that Exergen authorized the copyright infringement. As discussed

above, Exergen is alleged to have controlled Boston Digital’s design of Exergen’s website.

For modified versions of the Dugan Photographs to have been present on the Exergen

website, it can be inferred that employees of Exergen would have needed to approve the

addition of the photographs. Plaintiff has plausibly alleged a copyright infringement claim

against Exergen under a contributory liability theory.

D. Leave to Amend

Plaintiff requested that she be granted leave to amend her pleading should the Court

deem dismissal of her claims proper. Plaintiff’s request is wholly conclusory. Plaintiff

fails to identify any relevant additional factual allegations or governing law that would

deem leave to amend proper.

Plaintiff has not filed a formal motion requesting leave to amend. See Calderon v.

Kansas Dep't of Soc. and Rehab. Servs., 181 F.3d 1180, 1186–87 (10th Cir. 1999)

(Generally, “a court need not grant leave to amend when a party fails to file a formal

motion.”). Nor has Plaintiff complied with this Court's local rule governing amendment of

pleadings. See LCvR 15(a)(2). Under these circumstances, Plaintiff has failed to provide

sufficient notice of the basis for any further amendment. See Calderon, 181 F.3d at 1186–

87 (explaining “a request for leave to amend must give adequate notice to the district court

and to the opposing party of the basis of the proposed amendment before the court is

required to recognize that a motion for leave to amend is before it” and noting the Circuit

has held an informal request to amend made in a response to a motion to dismiss was

insufficient); see also Albers v. Bd. of Cnty. Comm'rs of Jefferson Cnty., Colo., 771 F.3d

697, 706 (10th Cir. 2014) (“[A] bare request to amend in response to a motion to dismiss

is insufficient to place the court and opposing parties on notice of the plaintiff's request to

amend and the particular grounds upon which such a request would be based.”); Barrett v.

Univ. of New Mexico Bd. of Regents, 562 F. App'x 692, 694–95 (10th Cir. 2014) (mere

suggestion in opposition to motion to dismiss that plaintiff should be allowed leave to

amend was insufficient; a “formal motion to amend, accompanied by a proposed amended

complaint, gives the [trial] judge an opportunity to consider whether the new complaint

can pass muster” and “[a] less disciplined approach wastes time and effort”). The Court,

therefore, denies Plaintiff's request for leave to amend.

V. Conclusion

IT IS THEREFORE ORDERED that Defendant Exergen Corporation’s Motion to

Partially Dismiss Plaintiff's First Amended Complaint and Brief in Support [Doc. No. 31]

is GRANTED IN PART AND DENIED IN PART. Plaintiff's fraud claim (Count 10) and

breach of contract claim relating to Boston Digital’s internal presentation (Count 8) against

Exergen are DISMISSED WITHOUT PREJUDICE. The Motion is DENIED as to

Plaintiff's copyright infringement claims against Exergen based on secondary liability

theories (Counts 3, 4, 6 and 7), as well as Plaintiffs breach of contract claim relating to

the usage of the Dugan Photographs on Exergen’s website (Count 9).

IT IS SO ORDERED this 30th day of March, 2026.

SCOTT L. PALK

UNITED STATES DISTRICT JUDGE

14