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Bell v. Hess

United States District Court, S.D. Indiana, Indianapolis Division

March 9, 2018

RICHARD N. BELL, Plaintiff,
v.
JAY L. HESS, Individually not as an employee of Indiana University, Defendant.

          ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE PLEADINGS

          TANYA WALTON PRATT, United States District Judge.

         This matter is before the Court on Defendant Jay L. Hess' (“Hess”) Motion for Judgment on the Pleadings filed pursuant to Federal Rule of Civil Procedure 12(c) (Filing No. 40). After discovering unauthorized use of his photograph of the Indianapolis skyline, Plaintiff Richard N. Bell (“Bell”) filed this action, seeking damages and declaratory and injunctive relief under copyright laws. Bell asserted a claim for copyright infringement and unfair competition. Hess filed his Motion for Judgment on the Pleadings, asserting that Bell's claim is barred by Eleventh Amendment sovereign immunity. For the reasons that follow, Hess' Motion is granted.

         I. BACKGROUND

         The following facts are not necessarily objectively true, but as required when reviewing a motion for judgment on the pleadings, the Court accepts as true all factual allegations in the complaint and draws all inferences in favor of Bell as the non-moving party. See Emergency Servs. Billing Corp. v. Allstate Ins. Co., 668 F.3d 459, 464 (7th Cir. 2012).

         Bell is an attorney and professional photographer who lives in McCordsville, Indiana. This dispute centers on a photograph taken by Bell of the Indianapolis, Indiana skyline (“Indianapolis Photo”). After taking the Indianapolis Photo in 2000, Bell first published it on the internet on August 29, 2000, by uploading it to a Webshots account. It was later published on a website created by Bell at www.richbellphotos.com. Bell registered the copyright of the Indianapolis Photo with the United States Copyright Office on August 4, 2011, approximately eleven years after he first published the photograph on the internet. Bell has sold licenses of the Indianapolis Photo, has retained sole ownership of the copyright, and has used the photograph to promote his photography business (Filing No. 38 at 2-3, ¶¶ 5, 7-13).

         Defendant Jay L. Hess is the Dean of the Indiana University Medical School. Bell alleges that he is suing Hess individually, and not in his capacity as the Dean of the Medical School. “Hess intentionally permitted subordinates to create and control a website with the domain name of pediatrics.IU.edu.” Id. at 3, ¶ 6. Bell asserts, “Hess intentionally authorized employees under his control of the I.U. Medical School to publish the ‘Indianapolis Photo' in advertising which appears on a website owned by Indiana University even though the Defendant Hess individually knew he had no rights or authority to publish the Indianapolis Photo.” Id. at 2, ¶ 6. Bell alleges that Hess individually “permitted employees of the I.U. Medical School to publish the ‘Indianapolis Photo' in advertising which appears on a website owned by Indiana University at http://pediatrics.iu.edu/residency even though the Defendant Hess knew he nor anyone else he directed had the [] rights or authority to publish the Indianapolis Photo.” Id. at 1, ¶ 1.

         “Hess individually failed to properly supervise his subordinates who created a website for the World Wide Web at pediatrics.IU.edu to promote and advertise the Indiana University School of Medicine Residency Program and used the Indianapolis Photo on the website pediatrics.IU.edu” (Filing No. 38 at 4, ¶ 14). The Indianapolis Photo was wrongfully published on IU Medical School's website to attract prospective physicians to the pediatric program. Hess individually permitted employees of the Medical School and residency program to download the Indianapolis Photo from the internet without permission from Bell and then copy it onto a webserver controlled by http://pediatrics.iu.edu/residency. Hess had the ability to control and supervise the content of the website and to control and supervise the access of third-party internet users to that website. Third-party internet users were able to access the website and copy the Indianapolis Photo onto their own computers. Id. at 4, 7, ¶¶ 15-17, 29.

         In August 2016, Bell discovered through the computer program “Google Images” that the Indianapolis Photo was being used without his permission on the webpage http://pediatrics.IU.edu/residency/how-to-apply. The webpage did not disclose the source of the Indianapolis Photo or otherwise confer credit to Bell. The Indianapolis Photo was used without authorization and without payment. Hess has refused to pay for the unauthorized use of the Indianapolis Photo. Id. at 4-6, ¶¶ 18-20, 24. The Indianapolis Photo no longer appears on the webpage (Filing No. 39 at 18, ¶ 29).

         On September 15, 2016, Bell initiated this action against Defendant Indiana University, asserting a claim for copyright infringement and unfair competition and seeking damages and declaratory and injunctive relief (Filing No. 1). Shortly thereafter, on October 26, 2016, Bell filed his Amended Complaint, removing Indiana University as the defendant and adding Hess as the sole defendant (Filing No. 11). Hess filed an answer to the Amended Complaint and then filed his first motion for judgment on the pleadings, asserting Eleventh Amendment immunity. In response, Bell requested leave of Court to file his Second Amended Complaint, which the Court granted, thereby mooting Hess' first motion for judgment on the pleadings (Filing No. 37). Bell filed his Second Amended Complaint on June 15, 2017 (Filing No. 38). Hess filed his Answer and then filed the pending Motion for Judgment on the Pleadings, again asserting Eleventh Amendment sovereign immunity.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 12(c) permits a party to move for judgment after the parties have filed a complaint and an answer. Rule 12(c) motions are analyzed under the same standard as a motion to dismiss under Rule 12(b)(6). Pisciotta v. Old Nat'l Bancorp., 499 F.3d 629, 633 (7th Cir. 2007); Frey v. Bank One, 91 F.3d 45, 46 (7th Cir. 1996). The complaint must allege facts that are “enough to raise a right to relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although “detailed factual allegations” are not required, mere “labels, ” “conclusions, ” or “formulaic recitation[s] of the elements of a cause of action” are insufficient. Id. Stated differently, the complaint must include “enough facts to state a claim to relief that is plausible on its face.” Hecker v. Deere & Co., 556 F.3d 575, 580 (7th Cir. 2009) (internal citation and quotation marks omitted). To be facially plausible, the complaint must allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 556).

         Like a Rule 12(b)(6) motion, the Court will grant a Rule 12(c) motion only if “it appears beyond doubt that the plaintiff cannot prove any facts that would support his claim for relief.” N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998) (quoting Craigs, Inc. v. Gen. Elec. Capital Corp., 12 F.3d 686, 688 (7th Cir. 1993)). The factual allegations in the complaint are viewed in a light most favorable to the non-moving party; however, the Court is “not obliged to ignore any facts set forth in the complaint that undermine the plaintiff's claim or to assign any weight to unsupported conclusions of law.” Id. (quoting R.J.R. Serv., Inc. v. Aetna Cas. & Sur. Co., 895 F.2d 279, 281 (7th Cir. 1989)). “As the title of the rule implies, Rule 12(c) permits a judgment based on the pleadings alone. . . . The pleadings include the complaint, the answer, and any written instruments attached as exhibits.” Id. (internal citations omitted).

         III. DISCUSSION

         Hess argues that Bell's claim should be dismissed and this case terminated because Hess enjoys sovereign immunity under the Eleventh Amendment. Hess explains that “the Supreme Court ‘has consistently held that an unconsenting State is immune from suits brought in federal courts by her own citizens as well as by citizens of another State.'” Peirick v. Ind. Univ.-Purdue Univ. Indianapolis Ath. Dep't, 510 F.3d 681, 694-95 (7th Cir. 2007) (quoting Edelman v. Jordan, 415 U.S. 651, 662-63 (1974)). This Eleventh Amendment protection “usually bars actions in federal court against a state, state agencies, or state officials acting in their official capacities;” however, three exceptions exist. Id. at 695. If a state waives immunity by consenting to suit in federal court, then the Eleventh Amendment protection will not apply. Furthermore, Congress may abrogate ...


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