United States District Court, D. Columbia
August 29, 2005.
DAVID L. WHITEHEAD, Plaintiff,
TWENTIETH CENTURY FOX FILM CORP., INC., Defendant.
The opinion of the court was delivered by: GLADYS KESSLER, District Judge
Plaintiff, David L. Whitehead, brings this action pro se
against Defendant, Twentieth Century Fox Film Corp., Inc.
("Twentieth Century Fox"), alleging copyright infringement in
violation of 17 U.S.C. §§ 101 et seq.. This matter is before
the Court on Defendant's Motion to Dismiss the Complaint. Upon
consideration of the Motion, Opposition, and the entire record
herein, and for the reasons stated below, Defendant's Motion is
Plaintiff, an author, poet, and playwright, contends that
Defendant unlawfully infringed on his copyrighted musical play
"God v. Satan" in the creation and production of its motion
picture THE PASSION OF THE CHRIST (Newmarket Film Group 2004). That film,
Plaintiff claims, is a "direct cop[y] of [his] copyrighted
materials." See Compl. at 5. To his copyright claim, Plaintiff
also appends federal claims under the Lanham Act,
15 U.S.C. §§ 1501 et seq., and the Racketeer Influenced and Corrupt
Organizations Act (RICO), 18 U.S.C. §§ 1961 et seq., as well
as several state law claims including negligence, fraud, and
breach of fiduciary duties. Compl. at 1. In addition to
$850,000,000 in damages, Plaintiff seeks impoundment of all
products related to THE PASSION OF THE CHRIST Id. at 20.
Plaintiff initiated this action in the Superior Court of the
District of Columbia ("the Superior Court") on June 30, 2005. On
July 25, 2005, Defendant properly removed the matter to this
On August 1, 2005, Defendant Twentieth Century Fox filed its
Motion to Dismiss the Complaint.
Twentieth Century Fox claims that Plaintiff has failed to state
a claim upon which relief can be granted and asks this Court to
dismiss the case pursuant to Fed.R.Civ.P. 12(b)(6).
Defendant's Mot. Dismiss at 1. Without addressing the merits of
Plaintiff's allegations, Defendant argues that because Plaintiff
has been enjoined "from commencing any action in this Court
without first obtaining leave to file,"*fn2 and because Plaintiff
did not seek such leave before bringing the instant case, this
action cannot proceed in this Court. Id. at 3.
Defendant alleges that Plaintiff filed this case in the
Superior Court knowing that jurisdiction was improper there and
with the expectation that it would be removed to this Court.
Id. at 5. In essence, Defendant characterizes Plaintiff's
filing in the Superior Court as mere subterfuge, an attempt to
circumvent "the intent and spirit of Judge Roberts' order"
barring Plaintiff from maintaining any actions in this Court
without first seeking leave to do so. Id. at 6.
Pursuant to Fed.R.Civ.P. 12(b)(6), "a complaint should not
be dismissed for failure to state a claim unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." Conley v. Gibson,
355 U.S. 41, 45-46 (1957). See also Scheuer v. Rhodes,
416 U.S. 232, 236 (1974) ("The issue is not whether a plaintiff will
ultimately prevail but whether the claimant is entitled to offer
evidence to support the claims."). As noted supra, the factual
allegations of the complaint must be liberally construed in favor
of the plaintiff. EEOC, 117 F.3d at 625.
Viewing the facts in the light most favorable to Plaintiff, the
Court finds that this action should be dismissed for failure to
state a claim upon which relief can be granted. For the reasons
discussed infra, Plaintiff had to have known at the time he
filed this action in the Superior Court that only a federal court
could exercise subject matter jurisdiction over his copyright
infringement claim and that Defendant would, of necessity, remove
the matter to this Court. See Sears, Roebuck & Co. v. Stiffel
Co., 376 U.S. 225, 231 (1964) (noting that 28 U.S.C. § 1338(a)
vests the federal courts with exclusive jurisdiction over patent
and copyright cases). As a result, the Court agrees with
Twentieth Century Fox that Plaintiff's actions in this case were
calculated to evade the injunction issued against him in 2003 and
that that injunction bars further proceedings in this matter.
Although Plaintiff appears pro se, he is hardly unfamiliar
either with the jurisdiction and procedures of both state and
federal courts generally or with copyright infringement claims in particular. Over the past decade, Plaintiff has filed no fewer
than ninety four civil actions in state and federal courts,
including dozens of federal copyright infringement claims. See
Whitehead v. Wickham et al., No. 15207-04, Mem. Order at 1
(D.C. Super. Ct. Mar. 31, 2005). Of the twenty six actions
Plaintiff has brought in this Court, eleven have involved claims
of copyright infringement.*fn3 See Whitehead v. Paramount
Pictures Corp. et al., 145 F. Supp. 2d at 4.
Plaintiff has found elements of his essays, poems, and plays in
some of the most popular films of the past decade and has
accordingly sued several of the nation's largest film and media
entities in this Court. Each of these cases has been dismissed
and each dismissal has been affirmed on appeal.*fn4 Either
the trial court judge or the U.S. Court of Appeals for the District of
Columbia Circuit has imposed sanctions against Plaintiff or
awarded attorneys' fees to defendants' counsel in most of these
actions.*fn5 In the instant case, Plaintiff again claims
that a major film studio, Twentieth Century Fox, has unlawfully
used his own work in a popular film, THE PASSION OF THE CHRIST.
Plaintiff's extensive experience litigating copyright
infringement claims would itself suggest that he was aware, when
he filed this case in the Superior Court of the District of
Columbia, that the federal courts retain exclusive jurisdiction
over these matters. Even assuming that Plaintiff has not long
known that the Superior Court cannot hear copyright infringement
claims, however, he was placed on full notice of that fact
earlier this year when he filed Whitehead v. Wickham in that
court. See Whitehead v. Wickham et al., No. 15207-04, Mem. Order at 1 (D.C. Super. Ct. Mar. 31,
Whitehead v. Wickham involved a claim by Plaintiff against
author DeWayne Wickham and publisher Random House Incorporated,
in which he alleged that the book Bill Clinton and Black
America (Ballantine Books, 2002) infringed on his copyrighted
essay "Bill Clinton and the Negroes." Despite a claim for damages
in excess of $3,000,000, Plaintiff filed the case in the Small
Claims and Conciliation Branch of the Superior Court. The
jurisdiction of that Branch is limited to claims under $5,000.
See D.C. CODE § 11-1321. The case was referred to Magistrate
Judge Ronald Goodbread who, in ordering the case to be certified
to the Superior Court's Civil Division, issued a lengthy opinion
detailing Plaintiff's extensive litigation experience. See
Whitehead v. Wickham et al., No. 15207-04, Mem. Order at 1
(D.C. Super. Ct. Mar. 31, 2005).
In at least four separate places, Judge Goodbread's opinion
explains in no uncertain terms that Plaintiff's copyright claim
could not be maintained in the Superior Court, that it would
almost certainly be removed to this Court and that, once removed,
it would likely be dismissed because of Judge Roberts' 2003
injunction. See id. at 4, 35, 40-42, and 48. Judge Goodbread
states, for instance, that Plaintiff "knows full well, having
filed every other copyright suit in Article III courts, that he
literally has no business here." Id. at 48. More pointedly, he
warns Plaintiff that he brought his claim against Mr. Wickham and Random House "in a
court in which his action does not properly lie . . . and [that
the case] would only inevitably end up being removed to an
Article III court, which has already guaranteed him that he will
be sanctioned severely for pursuing such misbegotten claims."
Id. at 4.
Judge Goodbread's predictions about the fate of Plaintiff's
action in fact came true. One day after Whitehead v. Wickham
was certified to the Superior Court, the defendants removed the
case to this Court. Two weeks later, Judge James Robertson of
this Court granted the defendants' motion to dismiss. See
Whitehead v. Wickham et al., No. 05-632, Order Granting Def.'s
Mot. Dismiss (D.D.C. Apr. 14, 2005).
There is absolutely no question that Plaintiff has been on
notice since at least April 14, 2005 and undoubtedly long
before*fn6 that only federal courts can exercise subject
matter jurisdiction over copyright matters. Given that reality,
his filing this case in the Superior Court in June 2005 could be
nothing but an attempt to circumvent Judge Roberts' 2003
injunction against him. C.f. Jemzura v. Mikoll, No.
99-CV-710, 2001 WL 1217227 (N.D.N.Y. 2001). Because that
injunction remains valid, and because Plaintiff did not seek leave to file this case in
accordance with it, his action against Defendant cannot proceed
in this Court.
Accordingly, for the foregoing reasons, Defendant's Motion to
Dismiss is granted.
An Order will issue with this Memorandum Opinion.
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