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No. 13-323C
April25,2014 APR 2 5 2014
U.S. COURT OF
JAMES L. DRIESSEN, FEDERAL CLAIMS
* Pro Se Plaintiff; Motion to
Plaintiff, * Dismiss; Lack of Subject Matter
* Jurisdiction; Failure to State a
v. * Claim; Intellectual Property;
. Copyright;lmplied-in-Fact
UNITED STATES, . Contract.
Defendant.
James L. Driessen, Lindon, UT, pro se.
John Fargo, Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice, Washington, D.C., for the defendant. With him was Stuart F.
Delery, Assistant Attorney General, Civil Division, Department of Justice.
ORDER
HORN. J.
FINDINGS OF FACT
EIc se plaintiff James L. Driessen filed a complaint in the United States Court of
Federal Claims' stating" [t]his is a declaratory action asking the court to declare that
' Plaintiff filed his complaint naming the Library of Congress, James Hadley Billington, in
his position at the Library of Congress, the United States Copyright Office, Maria A.
Pallante, and Robert Kasunic, in their positions with the United States Copyright Office,
as defendants. In this court, however, the only proper defendant is the United States,
which plaintiff did not name as a defendant. Rule 10(a) of the Rules of the United States
Court of Federal Claims (RCFC) (2013) states that "[t]he title of the complaint must
name all the parties. . . , with the United States designated as the party defendant."
RCFC 10(a); see also 28 U.S.C $ 1a91(a)(1) (Supp. V 2011). The United States
Supreme Court has indicated for suits filed in the United States Court of Federal Claims
and its predecessors, "[i]f the relief sought is against others than the United States the
suit as to them must be ignored as beyond the jurisdiction of the court." United States v.
Sherwood,312 U.S.584,588 (1941) (citation omitted). Stated differently, "the onlv
proper defendant for any matter before this court is the United States, not its officers,
nor any other individual." Stephenson v. United States,58 Fed. Cl. 186, 190 (2003)
(emphasis in original); see also United States v. Sherwood, 312 U.S. at 588; Hover v.
United States, 113 Fed. Cl. 295, 296 (2013) ("As an initial matter, it is well settled that
Plaintiff is the owner of the exclusive right in copyright and thereby oblige the Copyright
Office (hereafter 'Office') to perform a permissive registration under the copyright code."
Plaintiff requests the court declare that he is "a laMul purchaser and owner of content
media," and therefore, is entitled to "exclusive rights to lawful enjoyment, including
displaying, viewing, and transmission of the same for home viewing, within the bounds
of copyright law" and declare that there is "no physical or ethereal length of cord which
[sic] too long which could prohibit such lawful enjoyment. . within any distance."
(emphasis in original). Plaintiff also alleges "that Congress has authorized the
[Copyright] Office through the Library of Congress,['] to provide means for permissive
registration of any exclusive copyright." (emphasis in original). Further, plaintiff requests
the court to "[r]emand the Plaintiffs request for registration of his exclusive rights to the
[Copyright] Office, with proper instruction to the Office, ordering the Office to develop
and implement the rules and fees for such permissive registration as required by law."
According to Mr. Driessen, Vibme, LLC (Vibme)3 petitioned the Copyright Office
and requested the Copyright Office commence rulemaking to establish a new system of
registration using the "Circle Section" registration mark, which would address
"consumer. . . ownership rights in firslsales of online digital media." The petition for
rulemaking requested that the Copyright Office "clearly establish that consumers have
ownership rights in first-sales of online digital media," and, "if it is determined that
ownership rights for cloud media storage are mechanical or compulsory, then
pursuant to its existing authority under 17 U.S.C. S 408, establish procedures for a
preferred service provider to file an application for supplementary registration on
behalf of consumers . ."The petition for rulemaking also ouflined the reasons
plaintiff suggested for creating a new system of registration, including ,,consumer
demand for digital ownership - at least as it is marketed at present - is beginning to
disappear." The petition for rulemaking stated "[i]t seems difficult to even understand
the industry impetuous [sic] behind these perceived efforts to hide ownership from the
the United states is the only proper defendant in the united states court of Federal
Claims."); Warren v. United States, 106 Fed. Cl. S07, 5'10-11 (2012) (,,1t is weil settled
that the united states is the only proper defendant in the court of Federal claims.");
Mav v. United states, 80 Fed. c|.442,444 ("Jurisdiction, then, is limited to suits against
the United States."), affd, 293 F. App'x 775 (Fed. Cir. 2008).
2 The
Copyright Office is directed by the Register of Copyrights, who reports to the
Librarian of Congress. See 17 U.S.C. g 701(a), (d) (2006).
3
The petition for rulemaking was signed on behalf of Vibme by the president of Vibme,
Maguerite A. Driessen. According to the website for Driessen Law, which can be
accessed at http://www.driessenlaw.com (last visited Apr. 24,2014), Marguerite A.
Driessen is listed as of counsel to Driessen Law, as well as a ,,Drieisen Law
Consultant," and an Associate Professor of Law, Brigham young University, J. Reuben
clark Law school. The website further indicates Ms. Driessen is "not a utah attorney."
The court noes that although Maguerite A. Driessen is listed as the president of Vibme,
in his complaint, Mr. Driessen alleges that "[p]laintiff has previously petitioned the
[Copyright] Office on behalf of his Company (Vibme LLC) for rulemaking."
consumer." The petition for rulemaking also argued that, "[t]he personal media
collection (as a concept) could actually assist in creating better bandwidth optimization."
The petition for rulemaking describes the potential consequences of not granting his
petition, stating, "consumers feel they are left with no choice but to seek to satisfy that
demand outside of industry channels." The petition for rulemaking warned, "[i]f,
however, we allow the fears and prejudices of industry content producers to dictate our
path, the personal media collection will disappear as physical media sources become
obsolete . . . ." The petition for rulemaking further warned that "attempts to deprive
citizens of ownership have had grave, even violent consequences."
Vibme then submitted a second petition to the Copyright Office titled 'PETITION
FOR WATVER OR SUSPENSTON OF RULES (OR CONSOLTDATTON MOTTON tN THE
ALTERNATIVE) RE: DOCKET 20'11-07." (emphasis and capitalization in originat). As
explained by the Copyright Office, in a letter to Maguerite A. Driessen, Vibme
"requested that the Copyright Office consolidate the rulemaking with [the] office's
rulemaking pursuant to 17 U.S.C. g 1201(a)(1)(C)," or, in the alternative, that the office
"suspend the section 1 201 rulemaking until the conclusion of the rulemaking" requested
in Vibme's prior petition. In the same letter to Maguerite A. Driessen, the Copyright
Office denied the petitions for rulemaking. Subsequently, in a third petition, Vibme
requested reconsideration of its proposals and a final notice.a A final decision by the
Copyright Office denying the two petitions, as well as the request for reconsideration,
was set forth in a subsequent letter to Mr. Driessen. As the Copyright Office noted in
that final decision:
Under the copyright law, the exclusive rights in copyrighted works are
set forth in sections 106 and 1 06A of the copyright law. Limitations to
those exclusive rights are set forth in sections 107 through 122 of the
copyright law. The first sale doctrine, which permits the owner of physical
copies to transfer possession of the copy, is set out in section 109 of the
copyright law. Section 109 clarifies that the first sale right is a limitation
on the exclusive right of distribution. The first sale doctrine does not limit
the exclusive right of reproduction. As the Office stated in its Section
104 Report to Congress, a report mandated by the Digital Millennium
Copyright Act, the first sale doctrine is inapplicable when the disposition
of a copy or phonorecord of a work implicates the reproduction right, as
is the case when a copy or phonorecord of a work is transmitted over the
Internet. See, http://www.copvriqht.qov/reports/studies/dmca/dmca studv.
html. Thus, from the perspective of the Copyright Office, a fundamental
premise in your rulemaking request is flawed.
Nowhere in section 109 is the Copyright Office authorized to establish a
registration system for ownership rights in the firsfsale of online digital
media. Moreover, as explained in the Section 104 Report to Congress,
4 The
request for reconsideration was filed on behalf of Vibme bv Mr. Driessen in his
capacity as attorney for Vibme.
because the transfer of a copy or phonorecord online implicates the
reproduction right, the first sale doctrine is generally inapplicable. See,
http:i/www.copvriqht.qov/reportsistudies/dmca/dmca study.html.
In absence of express authorization from Congress, the Copyright
Office finds no discretion to consider the matters advanced in your
petitions. This decision constitutes final agency action on your
requests.
Thereafter, Mr. Driessen filed an application to register his "material objects" with
the Copyright Office. In his complaint plaintiff indicates that he "requested that the
[Copyright] Office would grant the registration of exclusive first sale distribution rights,s
with the fair use time-shifting, space-shifting, and place-shifting rights, joined with the
transmitting for the private home viewing right from an authorized copy of . . . material
objects." Plaintiff requested the Copyright Office to protect the following "media material
objects:" "The Dark Side of the Moon (music album CD) - quantity 2," "Short Circuit
(motion picture DVD) - quantity 2," and "The Outlaw Josey Wales (motion picture
Bluray) - quantity 2." Plaintiff claimed that his company's patented technology helps
make these specific copies
such authorized coov of the work, of which it is known that there are millions.
(emphasis in original). According to plaintiff, he "requested that the [Copyright] Office
would determine procedures, policies, and fees for such registration, but was ignored,"
and, subsequently, was "finally denied a request for rulemaking."
After filing his various petitions and applications at the Copyright Office, plaintiff
filed suit in the United States Court of Federal Claims. Defendant resoonded with a
motion to dismiss for lack of subject matter jurisdiction and for failure to state a claim.
Specifically, defendant claims that this court does not have jurisdiction to consider
plaintiffls request for non-monetary requested relief, which is not a claim based on to a
money mandating statute. Defendant also argues that plaintiff's claims should be
dismissed for failure to state a claim upon which relief can be granted.
5
Black's Law Dictionary defines the first-sale doctrine as "[t]he rule that the purchaser
of a physical copy of a copyrighted work, such as a book or CD, may give or sell that
copy to someone else without infringing the copyright owner's exclusive distribution
rights. With regard to that physical copy, the copyright owner's distribution right is said
to be exhausted. 17 USCA 109(a)." Black's Law Dictionary 711 (gth ed.2009); see
also Kirtsaenq v. John Wilev & Sons. lnc., 133 S. Ct. 1351, 1363 (2013) (discussing the
common-law origin of the first sale doctrine).
6
Plaintiff included the cover page of his patent, as well as a typewritten explanation of
all the claims to this court as an exhibit to his response to defendant's motion to
dismiss. According to plaintiff, the patent granted on May 7,2013, US Patent No.
8,438,111, covers a technology that purports to perform "impairment, serialization, and
recordation" of physical media copies.
DtscusstoN
Plaintiff filed his complaint in this court plo se. When determining whether a
complaint filed by a pro se plaintiff is sufficient to invoke review by a court, pro se
plaintiffs are generally entitled to liberal construction of their pleadings. See Haines v.
Kerner, 404 U.S. 519,520-21 (requiring that allegations contained in a pro se complaint
be held to "less stringent standards than formal pleadings drafted by lawyers"), reh'q
denied, 405 U.S. 948 (1972); see also Erickson v. Pardus, 551 U.S. 89, 9a (2007);
Huqhes v. Rowe,449 U.S. 5,9-10 (1980); Estelle v. Gambte,429 U.S. 97, 106 (1976),
reh'o denied, 429 U.S. 1066 (1977). Defendant argues, citing Holtz v. Rockefeller & Co.,
lnc.,25B F.3d 62, 82n.4 (2d Cir.2001), that plaintiff, who is an attorney, should not be
allowed the more lenient pro se status which is typically accorded to a non-attorney, pro
se plaintiff. The court notes that plaintiff, although not a member of this court's bar, is a
member of the utah bar.' The court agrees that a pro se plaintiff who is also a licensed
attorney should not be accorded the extra protections allowed to one who is not trained
in the law, especially in this case because, according to the information on the law firm
website, Mr. Driessen "has become a recognized expert in the field of intellectual
property."
It is well established that "'subjeclmatter jurisdiction, because it invorves a
court's power to hear a case, can never be forfeited or waived."' Arbauqh v. y & H
Coro., 546 U.S. 500, 514 (2006) (quoting United States v. Cotton, 535 U.S. 625, 630
(2002)). "[F]ederal courts have an independent obligation to ensure that they do not
exceed the scope of their jurisdiction, and therefore they must raise and decide
jurisdictional questions that the parties either overlook or elect not to press." Henderson
gx rel. Henderson v. Shinseki, 131 S. Ct. 1197, 1202 (2011); see also nertzt6rp. t,.
Friend, 559 u.s. 77, 94 (2010) ("courts have an independent obligation to determrne
whether subject-matter jurisdiction exists, even when no party challenges it." (citing
Arbauqh v. Y & H Corp., 546 U.S. at 514)); Special Devices. Inc. v. OEA. Inc., 269 F.3a
1340, 1342 (Fed. cir. 2001) ("[A] court has a duty to inquire into its jurisdiction to near
and decide a case." (citing Johannsen v. Pav Less Druq Stores N.W.. Inc., g1g F.2d
160, 161 (Fed. Cir. 1990))); View Enq'q. Inc. v. RoboticVision Svs., Inc., 11S F.3d 962,
963 (Fed. cir. 1997) ("[c]ourts must always look to their jurisdiction, whether the parties
raise the issue or not."). "The objection that a federal court lacks subjecfmatter
jurisdiction . . . may be raised by a party, or by a court on its own initiative, ai any srage
in the litigation, even after trial and the entry of judgment." Arbauqh v. y & H Coip., 546
U.S. at 506; see also Rick's Mushroom Serv.. Inc. v. United States, S2l F.3d i33g,
'1346 (Fed. Cir. 2008) ("[A]ny party may challenge, orthe court may raise
sua sponte,
subject matter jurisdiction at any time." (citing Arbauqh v. y & H corp., s46 U.s. at 506;
Folden v_ United States, 379 F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en oanc
9enied (Fed. Cn. 2004), cert. denied, 54S U.S. 1127 (2005); anO fanninc,, pf,ittips &
Molnarv. West, 160 F.3d 717,720 (Fed. Cir. 1998))); pikulin v. Uniied States, gZ fed.
' lt appears that plaintiff was part of a law firm bearing his name, Driessen Law, in
Lindon, Utah. see Driessen Law, available at http://www.driessenlaw.com flast visited
Apr. 24, 2014\. According to the information available on the website, however.
"Driessen law firm is dissolved" and is "taking no new cases." See id.
Cl.71,76, appeal dismissed,425 F. App'x 902 (Fed. Cir. 2011). In fact, "[s]ubject
matter jurisdiction is an inquiry that this court must raise sua sponfe, even where . . .
neither party has raised this issue." Metabolite Labs., Inc. v. Lab. Corp. of Am.
Holdinqs, 370 F.3d 1354, 1369 (Fed. Cir.) (citing Textile Prods.. Inc. v. Mead Corp., 134
F.3d 1481, 1485 (Fed. Cir.), reh'q denied and en banc suqqestion declined (Fed. Cir.
1998)), reh'q and reh'q en bancdenied (Fed. Cir.2004), cert. qranted in part,546 U.S.
975 (2005), cert. dismissed as imorovidentlv oranted, 548 U.S. 124 (2006). .The
objection that a federal court lacks subject-matter jurisdiction . . . may be raised by a
party, or by a court on its own initiative, at any stage in the litigation, even after trial and
the entry of judgment." Arbauoh v. Y & H Coro., 546 U.S. at 506; see also Centr. pines
Land Co., L.L.C. v. United States, 697 F.3d 1360, 1364 n.1 (Fed. Cn.2012) ("An
objection to a court's subject matter jurisdiction can be raised by any party or the court
at any stage of litigation, including after trial and the entry of judgment."); Rick's
Mushroom Serv.. Inc. v. United States,521 F.3d 1338, 1346 (Fed. Cir.2008) (.tAlny
party may challenge, or the court may raise sua sponte, subject matter jurisdiction at
any time." (citing Arbauqh v. Y & H Coro., 546 U.S. at 506; Folden v. United States, 379
F.3d 1344, 1354 (Fed. Cir.), reh'q and reh'q en banc denied (Fed. Cir.2b%), cert.
denied, 545 U.S. 1127 (2005); and Fanninq. Phiilips & Molnar v. West, 160 F.3d VL
QQfea Cir. 1998))); Pikulin v. United States,97 Fed. Ct.71,76, appeat dismissed,
425 F. App'x 902 (Fed. Cn.2011).
Pursuant to the RCFC and the Federal Rules of Civil Procedure, a plaintiff need
only state in the complaint "a short and plain statement of the grounds for the court,s
jurisdiction," and "a short and plain statement of the claim showing that the pleader is
entitled to relief." RCFC 8(aX1), (2) (2013); Fed. R. Civ. p. B(aX1), (2) (2014); see arso
Ashcroft v. lqbal, 556 U.S. 662, 677-78 (2009) (citing Beil Ail. Coro. v. Twombtv, Sba
u s. 544, 555-57, 570 (2007)). "Determination of jurisdiction starts with tfie complaint,
which must be well-pleaded in that it must state the necessary elements of the plaintiff's
9la1r1 1n!e091dent of any defense that may be interposed.'; Holrev v. united states,
124 F.3d 1462, 1465 (Fed. cir.) (citing Franchise Tax Bd. v. consti Laborers Vacation
Trust,463 U.S. 1 (1983)), reh'q denied (Fed. Cir. tgSZ); See@
9omm. v. United states, 97 Fed. cl. 203, 208 (2011); Gonzalez-MccauttevJnv. c,ro-
lnc. v. United states, 93 Fed. cl. 710, 713 (2010). "conclusory allegations of law ano
unwarranted inferences of fact do not suffice to support a claim." g1ag[lgyf__qhrc!
corp., 136 F.3d 1317, 1322 (Fed. cir. 1998); see also Mczeal v. sprint NErtel corpl
501 F.3d_1354, 1363 n.9 (l9A C1 2007) (Dyk, J., concurring in part, dissenfiryin part;
(quoting c. wright and A. Miiler, Federal practice and procedlre g tzao
1sa eoizoo+yy.'
"A plaintiffs factual allegations must'raise a right to relief aOove tne speculative level'
and cross 'the line from conceivable to plausible."' Three s consultinq v. United states,
]04 Fed Cl. 510, 523 (2012) (quoting BeltAl. Corp. v. Tw@,
No. 2012-5104,2014WL 1394969 (Fed. Cir. npr.41 lU+ es stated in Ashcroft v.
lqbal, "[a] pleading that offers 'labels and conclusions' or 'a formulaic recitation-Ji tiE
elements of a cause of action will not do.' sso u.s. at s55. Nor does a complaint suffice
if it tenders 'naked assertion[s]' devoid of 'further factual enhancement."' Ashcroft v.
lqbal, 556 U.S. at 678 (quoting Bell Afl. Corp. v. Twomblv, SS0 U.S. at 555).
When deciding a case based on a lack of subject matter jurisdiction or for failure
to state a claim, this court must assume that all undisputed facts alleged in the
complaint are true and must draw all reasonable inferences in the non-movant's favor.
See Erickson v. Pardus, 551 U.S. 89, 94 (2007) ("ln addition, when ruling on a
defendant's motion to dismiss, a judge must accept as true all of the factual allegations
contained in the complaint." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56 (citing
Swierkiewicz v. Sorema N. A.,534 U.S.506,508 n.1 (2002)))); Scheuerv. Rhodes,416
U.S. 232, 236 (1974) ("Moreover, it is well established that, in passing on a motion to
dismiss, whether on the ground of lack of jurisdiction over the subject matter or for
failure to state a cause of action, the allegations of the complaint should be construed
favorably to the pleader."), abroqated on other qrounds by Harlow v. Fitzqerald, 457
U.S.800 (1982), recoqnized by Davis v. Scherer,468 U.S. 183, 190 (1984); United Pac.
lns. Co. v. United States,464 F.3d 1325, 1327-28 (Fed. Cir. 2006); Samish Indian
Nation v. United States,419 F.3d 1355, 1364 (Fed. Cir.2005); Boise Cascade Corp. v.
United States, 296 F.3d 1339, 1343 (Fed. Cir.), reh'o and reh'q en banc denied (Fed.
Cn.2002), cert. denied, 538 U.S. 906 (2003).
The Tucker Act grants jurisdiction to this court as follows:
The United States Court of Federal Claims shall have jurisdiction to render
judgment upon any claim against the United States founded either upon
the Constitution, or any Act of Congress or any regulation of an executive
depaftment, or upon any express or implied contract with the United
States, or for liquidated or unliquidated damages in cases not sounding in
tort.
28 U.S.C. S 1491(a)(1). As interpreted by the United States Supreme Court, the Tucker
Act waives sovereign immunity to allow jurisdiction over claims against the United
states (1) founded on an express or implied contract with the United states, (2) seeking
a refund from a prior payment made to the government, or (3) based on federal
constitutional, statutory, or regulatory law mandating compensation by the federal
government for damages sustained. see united States v. Navaio Nation, s56 u.s. 297,
289-90 (2009); United States v. Mitchell,463 U.S. 206,216 (1983); see also Greenlee
Cnty..,Ariz. v. Unlted States, 487 F.3d 871, B7S (Fed. Cir.), ICh! and 19h! CLberc
dgligd (Fed. Cn. 2007), cert. denied, 552 U.S. 1142 eo}il: patmer v. UniteC Stateq
168 F.3d 1310, 1314 (Fed. Cir. 1999).
"Not every claim invoking the constitution, a federal statute, or a regulation is
cognizable under the Tucker Act. The claim must be one for money damages against
the united states. . . ." United states v. Mitchell, 463 u.s. at 216; see ilso United
States v-White Mountain Apache Tribe, 537 U.S. 465,472 (2003); Smith \,. United
States, 709 F.3d 1114, 1116 (Fed. Cir.), cert. denied, 134 S. Ct. 2S9 (2013)i
R.adioShack Coro. v. United States,566 F.3d 1358, 1360 (Fed. Cir.2009); Rick;s
Mushroom serv.. Inc. v. United states, szl F.3d at 1343 ("[p]laintiff must . . . identify a
substantive source of law that creates the right to recovery of money damages against
the united states."). In ontario Power Generation. Inc. v. United states, the United
States Court of Appeals for the Federal Circuit identified three types of monetary claims
for which jurisdiction is lodged in the United States Court of Federal Claims. The court
wrote:
The underlying monetary claims are of three types. First, claims
alleging the existence of a contract between the plaintiff and the
government fall within the Tucker Act's waiver. Second, the Tucker
Act's waiver encompasses claims where "the plaintiff has paid money over
to the Government, directly or in effect, and seeks return of all or part of
that sum." Eastport S.S. lCorp. v. United States, 178 Ct. Cl. 599' 605-06']
372 F.2d [1002,] 1007-08 [(1967)] (describing illegal exaction claims as
claims "in which the Government has the citizen's money in its pocket"'
(quoting Claop v. United States,127 Ct Cl 505, 117 F. Supp 576' 580
(1954)) . . . . Third, the Court of Federal Claims has jurisdiction over those
,'money has not been paid but the plaintiff asserts that hejs
claims where
nevertheless entitled to a payment from the treasury." Eastport S'S , 372
.
F.2d at 7 Claims in this third category, where no payment has been
madetothegovernment,eitherdirectlyorineffect,requirethatthe
..particu|arprovisionof|awre|iedupongrantsthec|aimant,express|yorby
implication, a right to be paid a certain sum." ld ; see also Te-stan [Y'
United staiesl ,izqu.s.l3s2,l4o1-02 [1976] (.Wherethe United states is
the defendant and the plaintiff is not suing for money improperly exacted
or retained, the basis of the federal claim-whether it be the constitution, a
statute,oraregu|ation-doesnotcreateacauseofactionformoney
damagesun|ess,astheCourtofC|aimshasstated'thatbasis.initse|f..
can tiirly be interpreted as mandating compensation Uf I"^F9:F|
'Governmentforthedamagesustained."'(quotingEastportSS'372F'2d
at 1009)). This category is commonly referred to as claims brought under
a "money-mandating" statute.
ontario PowerGeneration. lnc. v. United states,369_F.3d 1298, 1301 (Fed. cir.2004);
, 104 Fed Cl l01, 106(2012)
Toprovethatastatuteorregulationismoney-mandating,a,p|aintiffmust
"'can fairly be
demonstraie that an independent sourde of substantive law relied upon
v'
inierpreteo as mandating compensation by the F_ederal Government."' United States
f..t"ulio N"tion,556 U.Slat29b (quoting Unite€tatesv. Tes-tan,424 U.S. at.400); see
: , 537 U S at 472; United States v'
, 533 F 3d.1374' 1383
G-O.Cir. 2008), cert. OedCd, -sSS US.11SS (ZOO9) The source _of lawY Navaio
granting
monetary relief must Oe OG-tinct from the Tucker Act itself. See United,Slateg
"substantive rights; [it is simply
1a! , 5so U.s. at 290 (The Tucker Act does not create
provision[] that operate[s] to waive sovereign immunity for claims
"firrisoictionul sources of law (e.g., itatutes or contracts)."). "'lf the statute is not
pieiniseO on other
.on"V-."nO"ting, the Court of fiO6rat Claims lacks jurisdiction, and the dismissal
should be for lac-k of subiect matter jurisdiction."' Jan's Helicopter serv" lnc. v' Fed'
Aviation Admin., 525 F.3d 1299, 1308 (Fed. Cir.2008) (quoting Greenlee Cntv.. Ariz. v.
United States, 487 F.3d at 876); Fisher v. United States, 402 F.3d 1167, 1173 (Fed. Cir.
2005) (The absence of a money-mandating source is "fatal to the court's jurisdiction
under the Tucker Act."); Peoples v. United States, 87 Fed. Cl. 553, 565-66 (2009).
The United States Court of Federal Claims has limited jurisdiction in copyright
cases and may hear cases only when the copyright owner brings an infringement action
against the United States. See 28 U.S.C. S 1498(b) (2006). Pursuant to 28 U.S.C. S
1498(b),6 the United States includes "a corporation owned or controlled by the United
States, or. . . a contractor, subcontractor, or any person, firm, or corporation acting for
the Government and with the authorization or consent of the Government." 28 U.S.C. S
1498(b). Section 1498(b) "codifies a limited waiver of sovereign immunity for copyright
infringement claims against the government and establishes this court as the exclusive
forum to hear such claims." Blueport Co.. LLP. v. United States, 76 Fed. Cl.702,711
(2007), atf d,533 F.3d 1374 (Fed. Cir. 2008), cert. denied, 555 U.S. 1153 (2009); see
also Gavlord v. United States,678 F.3d 1339, 1340 (Fed. Cir.2012); Aviation Software,
lnc. v. United States, 101 Fed. Cl.656, 662(201't); Bovle v. United States,44 Fed. Cl.
60, 62-63 (1999) ("[T]he exclusive action which may be brought for such infringement
shall be an action by the copyright owner against the United States in the Court of
Federal Claims." (quoting 28 U.S.C. S 1498(b)), affd,200 F.3d 1369 (Fed. Cir.2000).
A valid copyright infringement action must be based on both "'(1) ownership of a
valid copyright and (2) copying of constituent elements of the work that are original."'
Cohen v. United States, 105 Fed. C|.733,74041 (2012) (quoting Feist Publ'ns. Inc. v.
Rural Tel. Serv. Co.,499 U.S.340,361 (1991)), aff'd,528 F. App'x 996 (Fed. Cir.
2013); see also Roberson v. United States, No. 13-844C, 2014WL 1004310, at.5 (Fed
Cl. Mar. 14,2014). The above-captioned case is not a copyright infringement action
brought by the owner of a valid copyright. Instead, plaintiffs complaint alleges that the
Copyright Office refused to register his exclusive rights. Mr. Driessen seeks a
declaratory judgment and asks the court for four types of relief:
a. Declare Plaintiff is a lawful purchaser and owner of content media, and
that as a lawful ourchaser and owner of a content media material
object, Plaintiff has excluslve rights to laMul enjoyment, including
displaying, viewing, and transmission of the same for home viewing,
within the bounds of copyright law;
o 28 U.S.C. S 1498(b) states in part, "whenever the copyright in any work protected
under the copyright laws of the United States shall be infringed by the United States, by
a corporation owned or controlled by the United States, or by acontractor,
subcontractor, or any person, firm, or corporation acting for the Government and with
the authorization or consent of the Government, the exclusive action which may be
brought for such infringement shall be an action by the copyright owner against the
United States in the Court of Federal Claims . . . ."
b. Declare that there is no physical or ethereal length of cord which too
long which [sic] could prohibit such lawful enjoyment, as mentioned
above, within any distance;
c. Declare that Congress has authorized the Office through the Library of
Congress, to provide means for permissive registration of any
exclusive copyright; and
d. Remand the Plaintiff's request for registration of his exclusive rights to
the Office, with proper instruction to the Office, ordering the Office to
develop and implement the rules and fees for such permissive
registration as required by law.
(emphasis in original).
Plaintiff has not based his claims on a provision of law over which this court has
jurisdiction. Plaintiff's alleged basis for his claims is Article l, $ 1 of the Constitution,
which vests general legisiative powers in Congress. See U.S. Const Art. l, S 1t
Plaintiff also ielies on Title 17 of the United States Code, which, plaintiff alleges, the
Copyright Office can use to support the rulemaking he requested. Plaintiff asserts that
,'ttlh6 Copyright Office has been given sufficient direction from Congress through Title
ii . . . tor providing registration of exclusive viewing and transmission rights .'"
Plaintiff contends that Congress legislated Title 17 through its Article I authority to
mandate the copyright office's rulemaking. Although the complaint does not reference
a specific section of Title 17, plaintiff attaches Vibme's first petition to the copyright
office for his proposed new type of registration, which claims that there is "a new and
pressing need for the [Copyright] Office to reconsider the legitimate registration of
specifiCownership for consumers who purchase existing first sales rights under $109 of
the United States copyright code (Title 17 of the united states code)." The court
notes, however, that the first-sale doctrine, as reflected in 17 U.S C. 5109 (2006)' does
not provide a purchaser, such as the plaintiff with an exclusive right, but instead applies
to the copyright owner. see Kirtsaenq v. John wilev & sons. lnc., 133 S. Ct._at 1354-
SO. Theiefore, 17 U.S.C. g 109 does not apply to plaintiff. Additionally, the Copyright
Office has the discretion to reject petitions, which it did when rejecting Vibme's petition
for rulemaking, and those decisions are not reviewable in this court. See Gavlord v.
United States,678 F.3d at 1340; Walton v. United States,551 F.3d 1367' 1371 (Fed'
Cir. 2009).
Defendant notes that "[n]owhere in plaintiffls complaint does he allege that any
copyright owner in the digital media that he has sought to register has ever threatened
nim-witn suit for copyright infringement in relation to his use of the media that alleges
[sic] he has lawfully'purchased Moreover, as discussed above, under 28 U.S C S
l'
iaS;StO), the Court of Federal Claims has jurisdiction only in cases of -copyright
infringement against the United States. See Gavlord v. United states, 678 F.3d at
1340. ln this case, plaintiff does not allege, and does not have the ability to allege,
e
Notably plaintiff does not mention Article l, $ 8 in his complaint.
10
infringement because he is not the copyright owner. Rather, plaintiff merely claims to
have "first sale distribution rights, with the fair use time-shifting, space-shifting, and
place-shifting rights, joined with the transmitting for private home viewing rights from an
authorized copy." since copyright ownership, and infringement by the United states,
are threshold issues for jurisdiction in copyright actions in this court, this court does not
have jurisdiction over plaintiff's claims.
Plaintiff also asserts that the copyright office violated the Fourteenth
Amendment to the United States Constitution. lt is well established, however, that the
Eoual Protection Clause of the Fourteenth Amendment is not a money-mandating
provision which establishes jurisdiction in this court. See LeBlanc v. Unitgd States' 50
F.3d 1025, 1028 (Fed. cir. 1995) (A claim under the Equal Protection clause of the
Fourteenth Amendment is not sufficient for jurisdiction in the United States Court of
Federal claims because it does not "mandate payment of money by the government."
(citing Canuth v. United States,224 Ct. CL 422, aa5 (1980))); Potter v' United. States,
108 Fed. Cl.544,548 (2013) (finding that "this Court lacks jurisdiction over violations
under the Due Process Clauses of the Fifth and Fourteenth Amendments . . . because
they do not mandate payment of money by the government.") (internal citations omitted)
(modifications in original); Wanen v. United States, 106 Fed. C|.507' 511 (2012)
(notOing that, since the "Fourteenth Amendment guarantee of equal protection" is not
money- mandating, "[a]ccordingly, the court lacks jurisdiction over these claims.");
pleasint-Bev v. United States, 99 Fed. Ct. 363, 367 (2011) appeal disnissed,464 F.
Appr azs (Fed. cir. 2012) ("However, this court does not have jurisdiction over claims
based on either the Thirteenth Amendment or Fourteenth Amendment because neither
mandates the payment of money damages.").
In addition, plaintiffls request for declaratory relief does not fall within the types of
claims over which this court has jurisdiction. See Ontario Power Generation, lnc. v.
United States, 369 F.3d at 1301. The United States Court of Federal Claims does not
frave iurisOlction to grant the general equitable relief requested by plaintiff under the
Federal Declaratory Judgment Act, 28 U.S.C. S 2201 ,to force the copyright office to
act on his request.
The language of 28 U.S.C. $ 2201 provides, in relevant part:
In a case of actual controversy within its jurisdiction . . . any court of the
United States, upon the filing of an appropriate pleading, may declare the
rights and other legal relations of any interested party seeking such
declaration, whether or not further relief is or could be sought' Any such
declaration shall have the force and effect of a final judgment or decree
and shall be reviewable as such.
As stated by the United States Court of Appeals for the Federal Circuit:
The Court of Federal Claims has never been granted general authority to
issue declaratory judgments, and to hold that the Court of Federal Claims
11
may issue a declaratory judgment in this case, unrelated to any money
claim pending before it, would effectively override Congress's decision not
to make the Declaratory Judgment Act applicable to the Court of Federal
Claims.
Nat'l Air Traffic Controllers Ass'n v. United States, 160 F.3d 714, 716-17 (Fed. Cir.
1998); see also United States v. Tohono O'Odham Nation, 131 S. Ct. 1723,'1729
(2011) (The United States Court of Federal Claims "has no general power to provide
equitable relief against the Government or its officers."); Massie v. United States, 226
F.3d 1318, 1321 (Fed. Cir.2000) ("Except in strictly limited circumstances, see 28
U.S.C. S 1491(b)(2), there is no provision in the Tucker Act authorizing the Court of
Federal Ctaims to order equitable relief." (citing United States v. Kinq, 395 U.S. 1, 4
(1969) ("cases seeking relief other than money damages from the court of claims have
neverbeen.withinitsjurisdiction''')and'920
F.2d 903, 906 (Fed. Cir. 1990))); James v. Caldera, 159 F.3d 573,580 (Fed. Cir. 1998)
("[T]he Court of Federal Claims has no power'to grant affirmative non-monetary relief
unless it is tied and subordinate to a money judgment."' (quoting Austin v. United
States. 206 Ct. Cl. 719, 723, cerl. denied,423 U.S. 911 (1975)), reh'q denied (1999);
Westlands Water Dist. v. United States, 109 Fed. Cl. 177,192 (2013)'; Halim v. United
States, 106 Fed. C|.677,685 (2012); Smalls v. United States,87 Fed. C|.300' 307
(2009); Prvor v. United States, 85 Fed. Cl. 97, 103 (2008) ("Apart from ordering relief
under 28 U.S.C. SS M91(a)(2) or (bX2), the Court of Federal Claims has no power to
grant a declaratory judgment. . . . The court of Federal claims cannot adjudicate a
complaint that seeks only declaratory relief." (citing Nat'l Air Traffic Controllers Ass'n v.
United states, 160 F.3d aI 717)). As plaintiffs requested relief is not related to a
monetary claim against the United States, it does not meet the criteria under 28 U.S.C.
$ 1491 and this court cannot grant declaratory relief in this case.
Trying to shift the focus of his case, although not asserted. in plaintiffs complaint,
plaintiff alleges in response to the defendant's motion to dismiss'' that the court should
address "the fundamental principle that individuals have rights against the government"
and "[t]he present Complaint sounds in contract." According to Mr. Driessen, he "has
sufficiently pleaded that digital ownership is real and plausibly an exclusive right."
Plaintiff tries to allege that the Copyright Office violated an implied contract with the
public through its denial of the application for copyright registration through his
company, Vibme. Plaintiff states that the Copyright Office "did not merely deny an
10
lt is generally improper for a party to raise new claims not included in its complaint in
anoppositiontoamotiontodismiss. SeeWriohtv.Ernst&YounqLLP'152F.3d169'
178 (2d Cir. 1998) (citing llT v. Cornfeld, 619 F.2d 909,922 (2d Cir. 1980) (party cannot
amend its complaint through statements in motion papers)). Plaintiff attempts to argue
that the contract claims were "explicitly" raised in the complaint, however, the complaint
only states: "The Court has subjecLmatter jurisdiction pursuant to 28 U.S.C. $ 1491
because this action is against the United States founded either upon the Constitution, or
any Act of Congress or any regulation of an executive department, or upon any express
or implied contract with the United states." Nevertheless, because both parties
addressed the contract claims, so too does the court.
12
application for copyright registration - it denied Plaintiff the very right to file an
application for registration of an exclusive right. Plaintiff has sufficiently pleaded that
digital ownership is real and plausibly an exclusive right."
The Tucker Act allows waiver of the United States' sovereign immunity in cases
when claims against the United States are founded on an express or implied contract
with the United States, when the plaintiff seeks a refund from a prior payment made to
the government, or when the claim is based on federal constitutional, statutory, or
regulatory law mandating compensation by the federal government for damages
sustained. See United States v. Navaio Nation, 556 U.S. at 289-90. However, "[n]ot
every claim invoking the Constitution, a federal statute, or a regulation is cognizable
under the Tucker Act. The claim must be one for money damages against the United
States.. . ." United States v. Mitchell,463 U.S.206,216 (1983). Both the statutory
basis and the monetary nature of the claim are threshold issues when considering
whether the Tucker Act confers jurisdiction upon this court. Although the plaintiffs new
contract claim was not asserted in the complaint, and plaintiff has not requested
monetary damages, even if the court were to consider the contract claim, subject matter
jurisdiction is not established because plaintiff had neither an express nor an implied
contract with the government. "An agreement implied in fact is 'founded upon a meeting
of minds, which, although not embodied in an express contract, is infened, as a fact,
from conduct of the parties showing, in the light of the surrounding circumstances, their
tacit understanding."'Hercules, Inc. v. United States,516 U.S. 417,424 (1996) (quoting
Balt. & Ohio R.R. Co. v. United States, 261 U.S. 592,597 (1923)). The elements of an
implied-in-fact contract are the same as those required for an express contract: (1)
mutuality of intent; (2) lack of ambiguity in offer and acceptance; (3) consideration; and
(4) actual authority to bind the government. See Hanlin v. United States, 316 F.3d
1325, 1328 (Fed. Cir. 2003), see also De Archibold v. United States, 57 Fed. C\.29,32
(2003) (citing Trauma Serv. Grp. v. United States, 104 F.3d at1325); see also Flexfab,
L.L.C. v. United States,424 F.3d 1254, 1265 (Fed. Cir. 2005) (citing Schism v. United
States, 316 F.3d 1259, 1278 (Fed. Cn.2002) (en banc), cert. denied, 539 U.S. 910
(2003)). "The requirements for a valid contract with the United States are: a mutual
intent to contract including offer, acceptance, and consideration; and authority on the
part of the government representative who entered or ratified the agreement to bind the
United States in contract." Total Med. Mqmt., Inc. v. United States,104 F.3d 1314,
1319 (Fed. Cir.) (citations omitted), reh'q denied and en banc suqqestion declined (Fed.
Cir.), cert. denied, 522 U.S. 857 (1997).
Plaintiff "pleads" the existence of an implied contract by alleging "[t]he
government has offered registration (via Congress and the Library'of Congress'), and
Plaintiff has accepted that offer (via requesting the permissive registration of an
exclusive right). Plaintiff is ready, willing, and able to pay the required fee once the
office will supply the procedure for paying the fee for such supplemental registration as
requested." (internal citations and footnote omitted). Using plaintiffs terminology,
however, there never was an offer from the Copyright Office to register plaintiffs
purported "exclusive right." As already noted above, it is not possible for plaintiffs
purported "exclusive right" to be registered as a copyright in the Copyright Office and
13
plaintiff was never granted a copyright by the Copyright Office. Plaintiff, therefore, does
not have such an "exclusive right" for which he can seek protection in this court, or any
other court, and no contractual right could have come into existence or was breached.
Defendant's motion to dismiss also alleges that plaintiff's complaint should be
dismissed for failure to state a claim, because plaintiff's claims are legally unsupported
with no possible remedy. As the court already has found that this court does not have
jurisdiction to entertain plaintiffs claims, the court only briefly addresses defendant's
failure to state a claim argument. A motion to dismiss under RCFC 12(bXO) (2013) for
failure to state a claim upon which relief can be granted "'is appropriate when the facts
asserted by the claimant do not under the law entitle him [or her] to a remedy."' Murdock
v. United States, 103 Fed. Cl.389, 394(2012) (alterations in original) (quoting Perezv.
United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998)). In examining what must be pled
in order to state a claim, under both RCFC 8(a)(2) and Rule (8XaX2) of the Federal
Rules of Civil Procedure, a plaintiff need only state in the complaint "a short and plain
statement of the claim showing that the pleader is entitled to relief." RCFC 8(a)(2); Fed.
R. Civ. P. 8(a)(2); see also Bell Atl. Corp. v. Twomblv, 550 U.S. at 555; TrinCo Inv. Co.
v. United States,722 F.3d 1375, 1380 (Fed. Cir. 2013) ("To avoid dismissal under
RFCF [RCFC] 12(b)(6), a party need only plead'facts to state a claim to relief that is
plausible on its face,' with facts sufficient to nudge 'claims across the line from
conceivable to plausible."') (quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 555)). The
United States Supreme Court in Twomblv stated:
While a complaint attacked by a Rule 12(bX6) motion to dismiss [for
failure to state a claiml does not need detailed factual allegations, a
plaintiff's obligation to provide the "grounds" of his "entitle[ment] to relief'
requires more than labels and conclusions, and a formulaic recitation of
the elements of a cause of action will not do, see Papasan v. Allain, 478
U.S.265,286 (1986) (on a motion to dismiss, courts "are not bound to
accept as true a legal conclusion couched as a factual allegation").
Factual allegations must be enough to raise a right to relief above the
speculative level, see 5 C. Wright & A. Miller, Federal Practice and
Procedure S 1216, pp.235-36 (3d ed. 2004) (hereinafterWright & Miller)
("[T]he pleading mustcontain something more. . . than . . . a statement of
facts that merely creates a suspicion [of] a legally cognizable right of
action"), on the assumption that all the allegations in the complaint are
true (even if doubtful in fact), see, e.9., Swierkiewicz v. Sorema N.A., 534
U.S. 506, 508 n.1 (2002) ("Rule 12(bX6) does not countenance
dismissals based on a judge's disbelief of a complaint's factual
allegations"); Scheuer v. Rhodes, 4'16 U.S. 232,236 (1974) (a weil-
pleaded complaint may proceed even if it appears "that a recovery is very
remote and unlikely") . . . . lWle do not require heightened fact pleading of
specifics, but only enough facts to state a claim to relief that is plausible
on its face.
14
Bell Atl. Corp. v. Twomblv, 550 U.S. at 555-56, 570 (footnote and other citations
omitted; brackets and omissions in original); see also Ashcroft v. lqbal, 556 U.S. at 678
(citing Bell Atl. Corp. v. Twombly, 550 U.S. at 555-57, 570); Totes-lsotoner Corp. v.
United States, 594 F.3d 1346, 1354-55 (Fed. Cir.), cert. denied, 131 S. Ct. 92 (2010);
Bank of Guam v. United States, 578 F.3d 1318, 1326 (Fed. Cir.) ("ln order to avoid
dismissal for failure to state a claim, the complaint must allege facts 'plausibly
suggesting (not merely consistent with)' a showing of entitlement to relief." (quoting Bell
Atl. Corp. v. Twomblv, 550 U.S. at 557)), reh'q and reh'q en banc denied (Fed. Cir.
2009), cert. denied, 130 S. Ct.3468 (2010); Cambridqe v. United States,558 F.3d
1331, 1335 (Fed. Cir, 2009) ('[A] plaintiff must plead factual allegations that support a
facially 'plausible' claim to relief in order to avoid dismissal for failure to state a claim."
(quoting Bell Atl. Corp. v. Twomblv, 550 U.S. at 570)); Carv v. United States, 552 F.3d
1373, 1376 (Fed. Cir.) ("The factual allegations must be enough to raise a right to relief
above the speculative level. This does not require the plaintiff to set out in detail the
facts upon which the claim is based, but enough facts to state a claim to relief that is
plausible on its face." (citing Bell Atl. Corp. v. Twomblv, 550 U.S. at 555, 570)), reh'q
denied (Fed. Cir.), cert. denied, 557 U.S. 937 (2009); Peninsula Grp. Capital Corp. v.
United States, 93 Fed. Cl. 720, 726-27 (20'10), appeal dismissed, 454 F. App'x 900
(2011); Leqal Aid Soc'v of New York v. United States, 92 Fed. Cl. 285, 292,298,298
n.14 (2010); Hall v. Bed Bath & Bevond, Inc.,705 F.3d 1357,1362 (Fed. Cir.2013)
("the factual allegations must'raise a right to relief above the speculative level' and must
cross'the line from conceivable to plausible."' (quoting Bell Atl. Corp. v. Twomblv, 550
U.S. at s55)).
When deciding whether a plaintiff has failed to state a claim upon which relief can
be granted, the court assumes that the undisputed facts alleged in the complaint are
true and must draw all reasonable inferences in the non-movant's favor. See Cambridoe
v. United States, 558 F.3d at 1335 (citing Paoasan v. Allain,478 U.S.265,283 (1986));
Carv v. United States, 552 F.3d at 1376 (citing Gould. Inc. v. United States, 935 F.2d
1271, 1274 (Fed. Cir. 1991)); Anaheim Gardens v. United States,444 F.3d 1309, 1315
(Fed. Cir.), reh'o denied (Fed. Cir. 2006); Bovle v. United States, 200 F.3d 1369, 1372
(Fed. Cir. 2000); Perez v. United States, 156 F.3d 1366, 1370 (Fed. Cir. 1998), Henke
v. United States, 60 F.3d 795,797 (Fed. Cir. 1995). lf a defendant or the court
challenges jurisdiction or a plaintiff's claim for relief, however, the plaintiff cannot rely
merely on allegations in the complaint, but must instead bring forth relevant, competent
proof to establish jurisdiction. See McNutt v. Gen. Motors Acceptance Corp. of lnd.,
298 U.S. 178, 1 89 (1936); see also Revnolds v. Army_& Air Force Exch. Serv. , 846 F .2d
746,747 (Fed. Cir. 1988). Therefore, although the court must assume that the
undisputed facts alleged in the complaint are true for the purposes of the motion to
dismiss and draws all reasonable inferences in the plaintiffs' favor, the facts alleged in
the complaint must be plausible and not merely naked assertions devoid of a factual
basis. See Ashcroft v. lqbal, 556 U.S. at 678; see also McZeal v. Sprint Nextel Corp..
501 F.3d at 1363 n.9 (mere allegations of law and conclusions of fact are insufficient to
support a claim).
Plaintiff asserts that he has "exclusive rights" because he "owns media material
objects in the form of discs, tapes, and records legally and laMully purchased." The
,tA
Copyright Act, at 17 U.S.C. S 102 (2006), however, only confers protection to the author
of such works, stating "[c]opyright protection subsists, in accordance with this title, in
oriqinal works of authorship fixed in any tangible medium of expression, now known or
later developed, from which they can be perceived, reproduced, or otherwise
communicated, either directly or with the aid of a machine or device." (emphasis
added). The Copyright Act at 17 U.S.C. S 201 further clarifies that "[c]opyright in a
work protected under this title vests initially in the author or authors of the work."
17 U.S.C. S 201 (2006). Indeed, '17 U.S.C. S 202 explicitly states the following about
ownership of material objects:
Ownership of a copyright, or of any of the exclusive rights under a
copyright, is distinct from ownership of any material object in which the
work is embodied. Transfer of ownership of any material object, including
the copy or phonorecord in which the work is first fixed, does not of itself
convey any rights in the copyrighted work embodied in the object; nor, in
the absence of an agreement, does transfer of ownership of a copyright or
of any exclusive rights under a copyright convey property rights in any
material object.
17 U.S.C. S 202 (2006). Mr. Driessen, therefore, fails to state a claim upon which relief
can be granted because the rights plaintiff alleges were violated do not exist. In fact,
Vibme's first petition itself is evidence that plaintiff knew and understood that there was
no protectable right, as Vibme requested the Copyright Office perform rulemaking to
expand the "exclusive rights." Even considering the allegations in plaintiffs complaint
as true for the purposes of the motion to dismiss, and drawing all reasonable inferences
in favor of plaintiff. the court finds that olaintiff has failed to state a claim for which relief
can be granted.
CONCLUSION
For the reasons stated above, the court GRANTS defendant's motion to dismiss.
Plaintiff's complaint is DISMISSED. The Clerk of the Court shall enter JUDGMENT
consistent with this Order.
IT IS SO ORDERED.
Judge
to