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Abrams v. Scribner's Inc.

United States District Court, District of Columbia

December 27, 2018

ALVIN ABRAMS, Plaintiff,
v.
SCRIBNER'S INC., et al., Defendants.

          MEMORANDUM OPINION

          AMY BERMAN JACKSON, United States District Judge

         Pro se plaintiff Alvin Abrams sued defendants, Scribner's Inc. (“Scribner's”) and Harold Ober Associates (“HOA”), seeking a judgment that the book The Great Gatsby by F. Scott Fitzgerald is no longer under copyright, but rather in the public domain. The Court dismissed the case against defendant Scribner's due to plaintiff's failure to properly serve defendant. The remaining defendant, HOA, has moved for summary judgment, arguing among other things, that plaintiff lacks standing to bring the suit. Plaintiff opposes the motion. For the reasons that follow, the Court will grant defendant's motion and will dismiss the case for lack of subject matter jurisdiction.

         BACKGROUND

         On July 6, 2018, plaintiff brought this suit against HOA and Scribner's, seeking a judgment that would allow him to use the text of F. Scott Fitzgerald's The Great Gatsby, which he contends belongs “to the public domain.” Compl. [Dkt. # 1] ¶¶ 14-15. Plaintiff accuses defendants of “falsely creat[ing] the impression that ‘The Great Gatsby' is legally and properly protected in a copyright status, ” and he complains that their conduct has delayed his publication of seven books which require “the extensive use of [the book's] original text.” Id. Plaintiff contends that “after many years of diligent research” he has found “hundreds of secret hidden messages” in the novel, which he wishes to reveal in “anagrammatic translations” for “generations of readers.” Id. ¶ 14.

         After plaintiff filed his complaint, he submitted two supplemental filings seeking default. Aff. by Alvin Abrams [Dkt. # 4]; Aff. for Default by Alvin Abrams [Dkt. # 5]. The Court denied plaintiff's request for default without prejudice on August 21, 2018, because as of that date, plaintiff had not properly served the defendants in accordance to Federal Rule of Civil Procedure 4. Order [Dkt. # 6]. The Court's Order recited the requirements under Rule 4, including the requirement that “plaintiff must serve the summons and complaint within 90 days after the complaint is filed, ” and that service must be effectuated by a person who is “not a party to the action.” Id. at 1-2.

         Thereafter, plaintiff filed numerous duplicative pleadings concerning his attempts to serve defendants, including a Motion for More Definitive Statements from Defendants. [Dkt. # 10]. The Court denied that motion on August 30, 2018, and again stressed plaintiff's obligation to comply with the requirements of Rule 4. Order [Dkt. # 11]. The Court was clear that plaintiff was required to serve defendants by October 4, 2018 or the Court would dismiss the suit without prejudice pursuant to Rule 4(m). Id.

         On October 3, 2018, after reviewing an affidavit plaintiff submitted from a professional process server, the Court found that plaintiff had properly served defendant HOA. See Min. Order (Oct. 3, 2018); Aff. of Service [Dkt. # 15] at 2. However, the Court noted that proof of proper service was still outstanding as to defendant Scribner's, and it denied plaintiff's motion to order service by the U.S. Marshall. Id. The Court re-iterated its warning that failure to properly serve defendant Scribner's by October 4, 2018 would result in dismissal of the case. Defendant HOA filed an answer to the complaint on October 11, 2018. Answer [Dkt. # 17].

         On October 16, 2018, the Court dismissed the suit against Scribner's due to plaintiff's failure to serve defendant properly within 90 days after the complaint was filed pursuant to Rule 4(m). Order [Dkt. # 18]. Plaintiff then filed a motion to recuse the Court from the case. [Dkt. # 24]. The Court denied the motion noting that “the Court has no connection to any party or lawyer in the case that would warrant such an action, nor is there any factual basis to be concerned about the appearance of impropriety in this case notwithstanding any opinions plaintiff may have discovered on the Internet.” Min. Order (Oct. 29, 2018). The Court also set forth a briefing schedule, which ordered the remaining defendant, HOA, to file a dispositive motion by November 16, 2018, and plaintiff to file his response by December 7, 2018. Id.

         HOA filed its motion for summary judgment on November 16, 2018. Def. HOA'S Mot. for Summ. J. [Dkt. # 31] (“Def.'s Mot.”). Pursuant to the ruling in Fox v. Strickland, 837 F.2d 507 (D.C. Cir. 1988) which requires district courts to take pains to advise a pro se party of the consequences of failing to respond to a dispositive motion, the Court issued an order warning plaintiff that defendant had filed a motion for summary judgment and that “the Court may grant the motion and dismiss the case if plaintiff fails to respond.” Order [Dkt. # 33]. The Order also informed plaintiff that his opposition to the motion for summary judgment was due by December 7, 2018, as previously established, and that if he failed to respond by that date the Court may grant the motion and dismiss the case. Id.

         Plaintiff appealed the Court's denial of his motion to recuse, and filed a motion to stay the briefing schedule pending the appeal. Mot. to Stay Pending Appeal [Dkt. # 34]. The Court denied the motion based on plaintiff's failure to show a likelihood of success on the merits on his appeal concerning recusal, and it maintained the established briefing schedule. Order [Dkt. # 35].

         To date, plaintiff has not filed any pleading formally designated as an opposition. He has been in communication with the Clerk of Court nearly every day, filing duplicative pleadings mostly expressing his disdain for the Court. In a submission received by the Court on November 27, 2018 and docketed on December 11, 2018 though, plaintiff stated that he “replies to Judge Amy B. Jackson's Order requiring his reply to a dispositive motion . . . filed on behalf of defendant Harold Ober Associates, Inc.” Mem. in Opp. to Def.'s Mot. [Dkt. # 47] at 2. The document largely repeated plaintiff's unsupported allegations concerning bias on the part of the Court and unfounded accusations that the Court has engaged in improper ex parte communications, but it also included several pages entitled, “Response to Defendant HOA's Statement of Material Facts Not in Dispute.” Id. at 8.

         Therefore, in assessing defendant's motion for summary judgment, the Court will consider the motion along with the complaint, the supplementary materials submitted by the plaintiff, plaintiff's November 27 response to the motion for summary judgment, and the entire record in the case, all viewed in the light most favorable to the plaintiff.[1]

         STANDARD OF REVIEW

         Summary judgment is appropriate “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). To defeat summary judgment, the non-moving party must “designate specific facts showing that ...


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