United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
JAY L. HESS, Individually not as an employee of Indiana University, Defendant.
ORDER ON DEFENDANT'S MOTION FOR JUDGMENT ON THE
WALTON PRATT, United States District Judge.
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
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).
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).
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.
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.
August 2016, Bell discovered through the computer program
“Google Images” that the Indianapolis Photo was
being used without his permission on the webpage
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, Â¶ 29).
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
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).
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
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 ...