United States District Court, District of Columbia
BERMAN JACKSON, United States District Judge
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
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.
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
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.
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].
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.
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.
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].
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.
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
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