El Bey v. United States

In the United States Court of Federal Claims

No. 20-1459

(Filed: March 26, 2021)

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BASIA EL BEY, Administrator of Tribal *

Administration Trust, *

*

Plaintiff, *

Pro se; Copyright Infringement;

*

RCFC 12(b)(6); Failure to State a

v. *

Claim; Motion for Default Judgment

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THE UNITED STATES, *

*

Defendant. *

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Basia El Bey, Las Vegas, NV, pro se.

Joshua A. Mandlebaum, U.S. Department of Justice, Civil Division, Washington, DC, counsel

for Defendant.

ORDER AND OPINION

DIETZ, Judge.

Basia El-Bey, a pro se plaintiff, brings this suit for copyright infringement against the

United States. Before the Court is the government’s motion to dismiss for failure to prosecute

pursuant to Rule 41(b) or, in the alternative, for failure to state a claim pursuant to Rule 12(b)(6).

Because Plaintiff has failed to plead sufficient facts to state a claim for copyright infringement,

the motion to dismiss is GRANTED. Additionally, Plaintiff’s Motion for Default Judgment is

DENIED.

I. BACKGROUND

Basia El-Bey, “Administrator of Tribal Administration Trust,” filed two separate but

identical complaints1 on October 16, 2020, alleging copyright infringement by twenty-three

individuals—identified by name only2—and the United States. See Compl. at 1-2, ECF No. 1.

El-Bey alleges that these individuals, collectively referred to as “Texas” for some unexplained

1

The complaint and all filings by both parties are identical in this case and Basia El Bey v. United States, Case No.

20-1460. Accordingly, the Court files this Order and Opinion in each of the two cases.

2

Though El-Bey provides no information, it appears that some of these individuals may be state-level officials

involved in a related district court case. See Def. Mot. to Dismiss at 4, ECF No. 6; El Bey et al. v. Dominguez et al.,

No. 2:20-cv-073-Z-BQ (N.D. Tex. Mar. 24, 2020).

reason, “used the United States Postal Service to display the copyright without consent of the

owner.” Id. at 2. According to the complaint, these individuals engaged in “unauthorized uses of

the copyright in retaliation” after a March 2020 lawsuit involving “false arrest, wrongful

trespassing, illegal conversion, and negligence.” Id. Further, El-Bey asserts his claim against the

United States as “co-conspirators” in the copyright infringement because it “failed to exercise

their right and ability to supervise Texas” and “to intercede when they had an obligation to do

so[.]” Id. at 3.

El-Bey provides no information about the copyright or its infringement except to say that

he “is the sole owner of the copyright with reference number CLCN-021919828466-APH” and

that “[i]ts assignment is recorded on UCC Filing number 18-7639746344[.]” Compl. at 2. El-Bey

alleges that he sent a cease and desist notice to “Texas” and the United States in July and

September 2020, with a “fee amount of one million dollars if the defendants failed to cease with

their unauthorized use of the copyright.” Id. at 2-3. “Texas” allegedly again displayed the

copyright on October 1, 2020, “showing their willful intent of their unauthorized use of the

copyright.” Id. at 2. As a result of the alleged infringement, El-Bey seeks various forms of relief,

including “[e]ach Defendant . . . to pay money damages in the amount of One Million Dollar

(1,000,000.00), a certain amount of Twenty-four Million (24,000,000.00) Dollars” and “[a]n

immediate order of Injunction against defendants/respondents to prevent further infringements

upon the copyright.” Id. at 4.

II. PROCEDURAL HISTORY

On December 14, 2020, the government filed its motion to dismiss for failure to

prosecute or, alternatively, failure to state a claim, pursuant Rules 41(b) and 12(b)(6),

respectively, of the Rules of the United States Court of Federal Claims (“RCFC”). See Def. Mot.

to Dismiss at 1, ECF No. 6. First, the government argues that a Rule 41(b) dismissal is

appropriate because El-Bey’s filing his complaint as “Administrator of Tribal Administration

Trust” violates the directive of RCFC 83.1(a)(3) that “[a]n individual who is not an

attorney . . . may not represent a corporation, an entity, or any other person in any proceeding

before this court.” Id. at 6 (quoting RCFC 83.1(a)(3)).3 Alternatively, the government argues

that, under RCFC 12(b)(6), El-Bey has failed to state a claim upon which relief can be granted

because he has pleaded insufficient factual allegations. Id. at 7. Specifically, the government

argues that El-Bey has not shown that he has a registered copyright, identified what the copyright

protects, or explained how the copyright was infringed. Id. at 7-8. In his response, El-Bey merely

reasserts his allegation, without any further factual enhancement, that “Texas started to use the

3

Because the Court dismisses this case on Rule 12(b)(6) grounds, it need not decide the government’s 41(b)

argument. In his response to the government’s motion, El-Bey addresses only the 41(b) argument, stating that

“:Basia: El-Bey: [sic] is the claimant in this case listed as plaintiff, not a trust.” Pl.’s Resp. at 1, ECF No. 10. The

Complaint’s lack of information regarding ownership of the alleged copyright prevents the Court from determining

whether El-Bey has brought this claim in his individual capacity or on behalf of a trust—information about the

existence and nature of which trust is, itself, lacking. As discussed in this Opinion, El-Bey’s failure to establish

ownership of a valid copyright contributes to his failure to state a claim, regardless of whether the alleged copyright

is owned by himself or a trust. As such, in either instance, dismissal under Rule 12(b)(6) is appropriate.

copy-right/copy-claim through the United States postal services for their personal gain without

consent, which is fraud and piracy.” Pl.’s Resp. at 1, ECF No. 10. El-Bey spends the rest of his

response questioning the use of the term “sovereign citizen” in the government’s motion and

demanding that the government answer a series of nonsensical questions. Id. at 2-3.

Following El-Bey’s response, the government elected not to file a reply by the January

22, 2021 deadline, thereby standing on its original motion. See Order, ECF. No 9. On March 19,

2021, the Clerk’s office received from El-Bey a motion for default judgment and supporting

affidavit, which were filed by leave of the Court. See Order, ECF No. 11. Though the bulk of the

motion again takes issue with the government’s use of the term “sovereign citizen” in its motion

to dismiss, it appears that El-Bey seeks entry of a default judgment based on the government’s

decision not to file a reply to El-Bey’s response to the government’s motion to dismiss. See Pl.’s

Mot. for Default J., ECF No. 12.

III. LEGAL STANDARDS

To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “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, 677-78 (2009) (quoting Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he tenet that a court must accept as true all of

the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678; see also

Twombly, 550 U.S. at 555 (requiring a pleading to offer “more than labels and conclusions”).

Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Iqbal, 556 U.S. at 678. Rather, a plaintiff must plead sufficient

factual matter to “raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at

555.

The pleadings of a pro se plaintiff are “liberally construed” and “held to less stringent

standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)

(internal quotation marks omitted). The liberal reading afforded to a pro se plaintiff’s complaint

“may explain [the complaint’s] ambiguities, but it does not excuse its failures.” Henke v. United

States, 60 F.3d 795, 799 (Fed. Cir. 1995). Moreover, “[a]lthough pro se plaintiffs are given some

leniency in presenting their case, their pro se status does not immunize them from pleading facts

upon which a valid claim can rest.” Stroughter v. United States, 89 Fed. Cl. 755, 760 (2009)

(citing Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); Constant v. United

States, 929 F.2d 654, 658 (Fed. Cir. 1991)).

IV. DISCUSSION

A. Defendant’s Motion to Dismiss

El-Bey’s copyright claim does not contain sufficient factual allegations to survive the

Rule 12(b)(6) standard. The Court of Federal Claims has exclusive jurisdiction over copyright

infringement claims against the United States. 28 U.S.C. § 1498(b). Outside the statutory

exceptions which are inapplicable in this case, registration of a copyright is required to bring a

claim for copyright infringement. 17 U.S.C. § 411(a); see also Reed Elsevier, Inc. v. Muchnuck,

559 U.S. 154, 166 (holding that copyright registration is a nonjurisdictional precondition to suit).

Thus, “[t]o prove copyright infringement, a plaintiff must show (1) ownership of a valid

copyright and (2) copying by the alleged infringer.” Jennette v. United States, 77 Fed. Cl. 126,

131 (2007) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). In an

infringement suit against the United States, the alleged infringer may be the United States itself

or “any person, firm, or corporation acting for the Government and with the authorization or

consent of the Government . . . .” 28 U.S.C. § 1498(b). As such, a suit against the government, if

based on alleged infringement by a different party, requires the plaintiff to prove an additional

element—that the alleged infringer acted on behalf of and with the authorization or consent of

the government. 4 See id.

The allegations of copyright infringement in El-Bey’s complaint amount to nothing more

than the conclusory statements, devoid of any factual enhancement, that he owns a copyright and

that it was infringed upon. First, El-Bey asserts no facts to support his claim that he holds a valid

copyright. The complaint contains only a copyright “reference number” without a certificate of

registration or any description of what the copyright protects. See Compl. at 2. Further, in his

response to the government’s motion to dismiss, El-Bey does not address the government’s

contention that the registration number is inauthentic. See Def. Motion to Dismiss at 2; Pl.’s

Resp. Second, El-Bey provides no factual allegations surrounding the alleged infringement

except to state that the infringers “used the United States Postal Service to display the copyright

without consent[.]” Compl. at 2. Finally, El-Bey provides no facts about the individuals alleged

to have committed the infringement, much less any that would support a finding that they acted

on behalf of and with the authorization or consent of the United States. In fact, the United States’

only involvement, according to the complaint, was its failure to supervise and intervene to

prevent the infringement. Id. at 3. Such an allegation, without any facts regarding the direct

involvement of the United States, is speculative and insufficient to maintain a claim.

In sum, El-Bey has not pleaded sufficient facts to support any element required to state a

plausible claim for copyright infringement against the United States. As such, pursuant to RCFC

12(b)(6), the claim must be dismissed.

B. Plaintiff’s Motion for Default Judgment

The government’s decision not to file a reply to El-Bey’s response to the motion to

dismiss does not warrant entry of a default judgment. Rule 55 permits entry of a default

4

El-Bey appears to seek relief from each of the alleged infringers individually, not just the United States. See

Compl. at 1 (seeking “money damages in excess of One Million Dollars against each defendant”). This Court’s

jurisdiction is confined to reviewing claims for money damages against the United States, not any individual. Brown

v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). As such, any claim against these individuals would be

dismissed for lack of jurisdiction. The Court, therefore, liberally construes El-Bey’s assertion that the infringers are

“agent[s] and assign[s] of the United States,” Compl. at 2, to mean that they acted on behalf of and with the

authorization of the government, as required to bring a claim under 28 U.S.C. § 1498(b).

judgment only if a party against whom relief is sought “has failed to plead or otherwise defend”

against the claim. RCFC 55(a). El-Bey filed his complaint on October 16, 2020. See Compl.,

ECF No. 1. The government satisfied the responsive pleading requirements by filing its motion

to dismiss on December 14, 2020. See RCFC 12(a)(4); Def. Mot. to Dismiss, ECF. No. 6. The

decision not to file a reply is not grounds for default, as replies to responses to 12(b) motions are

permissive, not mandatory. See RCFC 7.2(b)(2) (“A reply to a response may be filed within 14

days after service of the response.”) (emphasis added); see also ECF No. 9 (“If the government

does not file a reply, the Court will interpret that as an affirmative decision to stand on its

December 14, 2020 Motion to Dismiss.”). Because Plaintiff has not stated proper grounds for

default judgment, the motion is denied. The government need not respond to the motion.

V. CONCLUSION

For the reasons stated above, Defendant’s Motion to Dismiss is GRANTED.

Accordingly, Plaintiff’s Complaint is DISMISSED without prejudice. Plaintiff’s Motion for

Default Judgment is DENIED. The Clerk of Court is directed to enter judgment accordingly.

IT IS SO ORDERED.

s/ Thompson M. Dietz

THOMPSON M. DIETZ, Judge