Case 4:23-cv-00183-TWP-KMB Document 22 Filed 02/22/24 Page 1 of 10 PageID #: 191

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

CASE NO.: 4:23-CV-00183-TWP-KMB

ALEXANDER BAYONNE STROSS,

PLAINTIFF,

v.

HOMESTEAD PROPERTIES INC DBA

TINY TIMBERS,

DEFENDANT.

PLAINTIFF’S OPPOSITION TO DEFENDANT’S MOTION TO DISMISS AND

INCORPORATED MEMORANDUM OF LAW

Plaintiff Alexander Bayonne Stross (“Stross”) by and through his undersigned counsel,

hereby files this Opposition to Defendant’s Motions to Dismiss Pursuant to Fed. R. Civ. P.

12(b)(1). [DE 17-18]. In support of this Motion, Plaintiff relies upon the accompanying brief.

DATED: February 22, 2024 Respectfully submitted,

/s/ J. Campbell Miller

J. CAMPBELL MILLER
Indiana Bar Number: 38279-49
[email protected]

SRIPLAW, P. A.
231 South Rangeline Road
Suite H
Carmel, IN - 46032
332.600.5599 – Telephone
561.404.4353 – Facsimile

Counsel for Plaintiff Alexander Bayonne Stross

SRIPLAW
CALIFORNIA ◆ GEORGIA ◆ FLORIDA ◆ INDIANA ◆ TENNESSEE ◆ NEW YORK
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UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION

CASE NO.: 4:23-CV-00183-TWP-KMB

ALEXANDER BAYONNE STROSS,

PLAINTIFF,

v.

HOMESTEAD PROPERTIES INC DBA

TINY TIMBERS,

DEFENDANT.

PLAINTIFF’S MEMORANDUM OF LAW IN SUPPORT OF OPPOSITION TO

DEFENDANT’S MOTION TO DISMISS PLAINTIFF’S COMPLAINT

Plaintiff, ALEXANDER BAYONNE STROSS (“Stross”), by and through undersigned

counsel, hereby moves this Court to deny Defendant’s Motion to Dismiss Plaintiff’s Complaint,

and in support thereof, states as follows:

I. INTRODUCTION

Defendant HOMESTEAD PROPERTIES, INC. d/b/a TINY TIMBERS’ (“Tiny

Timbers”) Motion to Dismiss should be denied in its entirety as a matter of law. Tiny Timbers

submitted two separate motions to dismiss, one for lack of subject matter jurisdiction under Fed.

R. Civ. P. 12(b)(1) [DE 15-16], and another for failure to state a claim under Fed. R. Civ. P.

12(b)(6) [DE 17-18]. This response opposes on the factual and legal arguments made in

Defendant’s motion to dismiss and memorandum filed at DE 15-16, which should be dismissed

in its entirety as it misconstrues both the facts asserted in and the law applicable to Plaintiff’s

Complaint.

SRIPLAW
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In short, Defendant moves to dismiss for lack of subject matter jurisdiction arguing that

Plaintiff is not the copyright owner of the image at issue in the Complaint, and that he failed to

provide a Certificate of Registration applicable to the image. As this argument is based solely on

Defendant’s misunderstanding about the vesting of rights in a copyrighted work, and ignores

both facts plainly asserted in the Complaint as well as Defendant’s legal burdens, Defendant’s

Motion fails to establish any jurisdictional insufficiencies that would require the Complaint in

this matter to be dismissed at this stage. Plaintiff sufficiently alleged creation and ownership of

the image, and provided the corresponding Certificate of Registration from the U.S. Copyright

Office establishing prima facie evidence of the information stated therein. That Court has subject

matter jurisdiction over this copyright infringement action. The Motion should be denied in its

entirety.

II. LEGAL STANDARD FOR MOTIONS TO DISMISS

Fed. R. Civ. P. 12(b)(6) authorizes dismissal of a complaint for failure to state a claim

upon which relief can be granted. Fed. R. Civ. P. 12(b)(1) authorizes dismissal of a complaint for

lack of subject matter jurisdiction. “The legal standards on a motion to dismiss under Rule

12(b)(6) and a motion to dismiss under Rule 12(b)(1) are essentially the same.” PropertyThree

Tech. Grp., Inc. v. Apartment Hunters, Inc., No. 1:07-CV-356-RLY-JMS, 2008 WL 11374380,

at *2 (S.D. Ind. May 20, 2008) (citing Motor Transp. Underwriters, Inc. v. Specialty Nat’l Ins.

Co., No. 1:06–cv–219–LJM–WTL, 2006 WL 1843339, at *2 (S.D. Ind. June 30, 2006).

To survive a motion to dismiss, “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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)) (emphasis added). “In reviewing the

sufficiency of a complaint under the plausibility standard announced in Twombly and Iqbal, [the
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court accepts] the well-pleaded facts in the complaint as true.” McCauley v. City of Chicago, 671

F.3d 611, 616 (7th Cir. 2011) (citing Iqbal, 129 S.Ct. at 1951).

Fed. R. Civ. P. 8(a) requires a pleading to include “a short and plain statement of the

grounds for the court’s jurisdiction.” If this short and plain statement, taken as true, establishes

that the court has subject matter jurisdiction over the claim, then the motion to dismiss for lack of

subject matter jurisdiction should be denied. The Seventh Circuit has explained that this rule

“reflects a liberal notice pleading regime, which is intended to ‘focus litigation on the merits of a

claim’ rather than on technicalities that might keep plaintiffs out of court.” Brooks v. Ross, 578

F.3d 574, 580 (7th Cir. 2009) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002)).

III. ARGUMENT

a. Subject-Matter Jurisdiction

Defendant argues that this case should be dismissed for lack of subject matter

jurisdiction, raising questions about whether Plaintiff is the copyright owner of the Work and

asserting that Plaintiff failed to prove that the Work was registered pursuant to 17 U.S.C. § 411.

Plaintiff’s factual allegations in the Complaint, that he owns the Work and that he registered it

with the United States Copyright Office, are sufficient to establish this Court’s subject-matter

jurisdiction over these claims.

United States District Courts have original subject matter jurisdiction over all civil

actions arising under the Constitution or any Act of Congress relating to copyrights. 28 U.S.C.

§§ 1331 and 1338(a). Claims of copyright infringement arise under the Copyright Act, 17 U.S.C.

§§ 101 et seq. To institute a civil action under the Copyright act, a plaintiff must be “the legal or

beneficial owner of an exclusive right under a copyright, subject to the requirements of [17

U.S.C. § 411].” 17 U.S.C. § 501(b). Section 411 provides that “no civil action for infringement

of copyright in any United States work shall be instituted until preregistration or registration of
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the copyright claim has been made.” 17 U.S.C. § 411. In short, to bring an action for copyright

infringement in a United States District Court, the plaintiff must own the copyright and have

registered the work with the United States Copyright Office.

Plaintiff’s factual allegations in the Complaint satisfy these requirements. First, Plaintiff

alleges in the Complaint that he created the photograph at issue in this action, entitled

“cv_240310_19” (herein the “Work”), in 2010. DE 1 (the “Complaint”) at ¶ 11. To rebut this,

Defendant points to examples where the Work was displayed online prior to Plaintiff’s April

2010 effective date of registration. But this argument confuses copyright ownership with the

registration process at the U.S. Copyright Office. “Copyright protection subsists . . . in original

works of authorship fixed in any tangible medium of expression,” and “vests initially in the

author or authors of the work.” 17 U.S.C. §§ 102 and 201. In other words, Plaintiff’s copyrights

to the Work immediately and automatically existed when he first created the Work, not when he

registered it. Plaintiff further alleges that “at all relevant times he was the owner of the

copyrighted Work at issue in this case.” Id. at ¶ 15. The factual allegations of the Complaint,

when taken as true for the purposes of a motion to dismiss, establish that Plaintiff is the owner of

the Work.

Second, Plaintiff asserts in the Complaint that he “registered the Work with the Register

of Copyrights on April 9, 2010, and was assigned registration number VAu 1-103-498.”

Complaint at ¶ 12. He also attaches a copy of the certificate of registration to the Complaint as

Exhibit 1. Id., Exhibit 1. These factual allegations, which the court must take as true for the

purposes of a motion to dismiss, are more than sufficient to establish this Court’s subject matter

jurisdiction over this action. See e.g., See South Southall v. Force Partners, LLC, No. 1:20-CV-

03223, 2021 WL 3883082, at *2 (N.D. Ill. Aug. 31, 2021) (denying defendant’s motion to

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dismiss for lack of subject matter jurisdiction). Plaintiff’s certificate of registration establishes

prima facie evidence of the copyrights validity. Columbia Pictures Indus., Inc. v. Landa, 974 F.

Supp. 1, 7 (C.D. Ill. 1997) (citing Wildlife Express Corp. v. Carol Wright Sales, Inc., 17 F.3d

502, 507 (7th Cir. 1994)). The copyright act provides that:

In any judicial proceeding the certificate of a registration made before or

within five years after first publication of the work shall constitute prima
facie evidence of the validity of the copyright and of the facts stated in the
certificate.

17 U.S.C. § 410(c). The factual allegations of the Complaint, when taken as true for the purposes

of a motion to dismiss, establish that Plaintiff properly registered the Work with the U.S.

Copyright Office.

At the pleading stage, Plaintiff is not required to “get into nit-picky allegations like

whether the photograph was indeed part of the deposited materials.” Id. (citing Hurst v. Hantke,

634 F.3d 409, 411 (7th Cir. 2011) (noting that the Federal Rules of Civil Procedure do not

“require a plaintiff to attach evidence to his complaint”); Ino, Inc. v. Needle & Threads of West

Palm Beach, Inc., 2020 WL 7343037, at *4 (E.D.N.Y. Dec. 14, 2020) (holding that a plaintiff is

not required to attach copies of registration certificates or provide registration numbers to survive

a motion to dismiss)). Stross’ Complaint in this action is more than sufficient to meet these

pleading standards.

Courts have made it clear that should a defendant choose to challenge the prima facie

evidence established by the inclusion of a certificate of registration, the time to do so is not at the

motion to dismiss stage, but instead as part of its investigations into the facts through the

discovery process. See, e.g., Iantosca v. Elie Tahari, Ltd., 2020 U.S. Dist. LEXIS 171512, *11

(S.D.N.Y 2020) (“It is the Defendant's obligation, during discovery, to contact the USCO and

request deposit copies to be used to rebut the validity of the copyright registration”) (citing

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Goodman v. Universal Beauty Prods. Inc., No. 17-cv-1716 (KBF), 2018 U.S. Dist. LEXIS

39176, 2018 WL 1274855, at *5 (S.D.N.Y. Mar. 9, 2018) (same)); Mercer Publ. Inc. v. Smart

Cookie Ink, LLC, 2012 U.S. Dist. LEXIS 192461, *4 (W.D.Wa., 2012)(“If Defendants wish to

pursue their invalidity argument with recourse to deposit copies, they may certainly do so, but it

is their burden to develop this theory by obtaining those copies from the Copyright Office”); and

Thomas v. Artino, 723 F. Supp. 2d 822, 830 (D. Md. 2010) (deposit copies not required to prove

copyright validity). The certificate of registration attached to the Complaint as Exhibit 1, even

without the deposit materials, is sufficient to establish subject matter jurisdiction.

Plaintiff’s complaint sufficiently alleged ownership of the Work and provided a copyright

registration for the Work. These factual assertions, taken as true, are sufficient to establish this

Court’s subject-matter jurisdiction over this action and Defendant’s motion to dismiss the

Complaint should be denied in its entirety.

b. Defendant’s Argument that this Claim Falls Outside the Applicable Statute
of Limitations is without Merit.

Defendant’s Motion further argues that Plaintiff’s claims fall outside the three-year

statute of limitations provided under 17 U.S.C. § 507(b). Defendant cites to Chicago Bldg.

Design, P.C. v. Mongolian House, Inc., to support its argument that Plaintiff’s complaint was

filed outside of the statute of limitations. Motion, at p. 9, citing Chicago Bldg. Design, P.C. v.

Mongolian House, Inc., 770 F.3d 610 (7th Cir. 2014). But in that case the Seventh Circuit

reversed a district court’s decision to dismiss the plaintiff’s complaint for falling outside the

statute of limitations. Chicago Bldg., 770 F.3d at 618.

In Chicago Bldg., the Seventh Circuit stated the general rule that “[w]hen a defendant

charges noncompliance with the statute of limitations, dismissal under Rule 12(b)(6) is irregular,

for the statute of limitations is an affirmative defense.” Id. at 613 (internal quotations omitted).

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The court further explains that for a motion to dismiss to be granted on the basis of non-

compliance with the statute of limitations, the plaintiff must affirmatively plead facts which are

sufficient for the court to determine the action was filed outside the limitations period. Id. at 614.

No such facts exist in Plaintiff’s Complaint.

The Seventh Circuit follows the “discovery rule,” under which the statute of limitations

period does not begin to run until the plaintiff discovers or reasonably should have discovered

the injury giving rise to the claim. See Design Basics, LLC v. Ideal Suburban Homes, Inc., No.

1:16-CV-178-TLS, 2017 WL 1090909, at *2 (N.D. Ind. Mar. 22, 2017). At most, Defendant

argues that Plaintiff actively monitors the internet for unauthorized uses and should have

discovered the infringement earlier than he did. Motion at p. 10 (“To actively seek that many

infringements and then to wait until almost 4 and a half years indicates that Stross was sleeping

on his copyright rights”). But Defendant fails to assert or establish any other date that Plaintiff,

in Defendant’s opinion, “should have discovered” the infringing activity here. This argument

does not reach the point of supporting dismissal, however, as even “storm warnings” or “inquiry

notice” of infringement is not sufficient to start the limitations clock. Chicago Bldg., 770 F.3d at

616 (“The concept of inquiry notice may help to identify the time at which a reasonable plaintiff

can be expected to start investigating a possible violation of his rights, but it does not itself

trigger the statute of limitations”).

The facts alleged by Plaintiff in the Complaint, taken as true, further rebut these

arguments. Plaintiff alleges in his Complaint that “[o]n or about February 10, 2021, [he]

discovered the unauthorized use of his Work on the Website.” Complaint ¶ 18. In other words,

even if Defendant’s characterization of Plaintiff as an active searcher for infringing uses of his

intellectual property are assumed to be true, the facts in the Complaint still show that with this

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active and thorough search, Plaintiff did not discover this infringement until February 10, 2021.

Defendant is unable to explain how or why an active or diligent searcher should have been better

at finding the infringement. Plaintiff discovered the infringement as quickly as could be

expected.

The Complaint was filed on November 9, 2023. [DE 1]. As the Complaint was filed

within three years from the date Plaintiff asserted he discovered the infringement, the Complaint

should not be dismissed for being filed outside the applicable statute of limitations. Nothing else

in the Complaint provides sufficient evidence for the Court to determine the action was filed

outside the limitations period.

As the facts asserted in the Complaint plainly establish that the Complaint was filed

within the three-year accrual period for copyright infringement claims, Defendant’s motion to

dismiss fails to establish any reason for dismissal at this stage.

IV. CONCLUSION

The allegations in Plaintiff’s Complaint, taken as true, establish that Plaintiff created the

Work, is the owner of the Work, and registered the Work with the Register of Copyrights such

that this court has subject-matter jurisdiction over this action. Moreover, Plaintiff’s allegations in

the complaint establish that this lawsuit was filed within the applicable statute of limitations

period and as such Plaintiff has sufficiently stated a claim. Defendant’s motion to dismiss should

be denied in its entirety.

DATED: February 22, 2024 Respectfully submitted,

/s/ J. Campbell Miller

J. CAMPBELL MILLER
Indiana Bar Number: 38279-49
[email protected]

SRIPLAW, P. A.
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231 South Rangeline Road

Suite H
Carmel, IN - 46032
332.600.5599 – Telephone
561.404.4353 – Facsimile

Counsel for Plaintiff Alexander Bayonne Stross

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SRIPLAW
CALIFORNIA ◆ GEORGIA ◆ FLORIDA ◆ INDIANA ◆ TENNESSEE ◆ NEW YORK