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Reilly v. Badger Coaches, Inc.

United States District Court, W.D. Wisconsin

April 1, 2019




         Plaintiff Jennifer Rondinelli Reilly asserts copyright infringement claims against defendants Badger Coaches, Inc., Badger Tour & Travel, LLC, John Meier, David Meier and James Meier based on their alleged use of two of Reilly's photographs on Badger Coaches' website. Before the court is plaintiff's most recent motion, a motion for judgment on the pleadings or, in the alternative, to strike affirmative defenses. (Dkt. #35.)[1] For the reasons that follow, the court will deny plaintiff's motion for judgment on the pleadings, finding defendants' denials preclude this relief. While motions to strike are typically disfavored, the court will credit some of plaintiff's arguments, and grant that motion in part for the reasons explained below.


         A. Basic Allegations

         In her complaint, plaintiff claims ownership of two photographs, which she created in October 2015 and first published in December 2015, as well as ownership of the copyright for these two photographs with an effective date of January 4, 2016. In addition to providing a screenshot of that registration, plaintiff alleges that she posted these photographs on her website, offering them for licensing, and clearly displayed their copyright management information.

         On or about January 8, 2018, plaintiff further claims to have discovered these same photographs on the Badger Coaches' website,, both without authorization from her. Plaintiff's counsel subsequently sent a letter notifying defendants of this alleged infringement, after which defendants removed the photographs. After attempting to negotiate a settlement payment from Badger Coaches, this lawsuit followed. Plaintiff also claims that each of the individuals named as defendants are officers and co-owners of the two, closely-held business entity defendants, Badger Coaches and Badger Tour & Travel.

         B. Procedural Posture

         In response to the complaint, the three original defendants filed an answer, containing a laundry list of some fifteen affirmative defenses. (Dkt. #10.) As detailed in plaintiff's motion to strike, plaintiff's counsel attempted to raise concerns with this answer, but defendants' counsel was apparently uninterested in engaging. (Pl.'s Opening Br. (dkt. #17) 2-3; Defs.' 2nd Opp'n (dkt. #20) 4-5 (acknowledging email exchange between the parties).) Plaintiff then filed her original motion to strike. (Dkt. #13.) In response, defendants filed an amended answer, which although not changing the basic substance of their answer, did clarify two of the affirmative defenses and added two additional ones. (Dkt. #15.) With that answer mooting her motion to strike, plaintiff promptly filed a second motion, this time to strike the amended answer. (Dkt. #16.) Somewhat inexplicably, defendants then filed a brief in opposition to the original motion to strike, followed by a second opposition brief to plaintiff's second motion to strike the amended answer. (Dkt. ##19, 20.)

         Further complicating the procedural posture, plaintiff also filed an amended complaint, which all five defendants have now answered. The amended answer contains the same affirmative defenses, except one -- the fourth affirmative defense that plaintiff's claims are barred because the works were licensed or otherwise authorized was omitted. (Dkt. #32.) In opposition to plaintiff's most recent motion, defendants reference their earlier briefing on the motions to strike. Accordingly, the court has considered those earlier briefs in ruling on plaintiff's present motion for judgment on the pleadings or, in the alternative, to strike the affirmative defenses.


         I. Motion for Judgment on the Pleadings

         Plaintiff moves for judgment on the pleadings as to both her copyright infringement claim, 17 U.S.C. § 101, as well as her claim under the Digital Millennium Copyright Act, 17 U.S.C. § 1202. Typically, a motion for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) is reviewed under the same standard as Rule 12(b)(6), except that the court considers not only the complaint and documents referenced in the complaint, but all pleadings and documents that are referenced in any pleading. See Gill v. City of Milwaukee, 850 F.3d 335, 339 (7th Cir. 2017). To succeed, plaintiff “must demonstrate that there are no material issues of fact to be resolved, ” even with the court viewing all facts in the light most favorable to defendants. N. Ind. Gun & Outdoor Shows, Inc. v. City of S. Bend, 163 F.3d 449, 452 (7th Cir. 1998). Moreover, given that plaintiff is the party with the burden of proof as to both claims, the motion should be denied “unless it appears beyond doubt that [defendants] cannot prove facts sufficient to support [their] position.” All Am. Ins. Co. v. Broeren Russo Const., Inc., 112 F.Supp.2d 723, 728 (C.D. Ill. 2000)

         A 12(c) motion is nearly pointless here. As detailed in plaintiff's own briefing, defendants have either denied essential allegations in plaintiff's complaint, or have alleged that they lack sufficient information to affirm or deny, which as plaintiff herself points out, is deemed a denial under Federal Rule of Civil Procedure 8(b)(5). See Fed. R. Civ. P. 8(b)(5) (“A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.”). While plaintiff attempts to undercut the weight of defendants' denials, faulting them for serving no discovery, but in doing so, plaintiff ignores that it is her burden to prove the elements of each claim, not defendants' burden to refute those elements. Since plaintiff has not begun to prove her claims simply by alleging them in a complaint, especially one that is not verified, her 12(c) motion is dead in the water.

         More specifically, defendants take issue with plaintiff only providing a screen shot of her registration, rather than attaching a verified copy as an exhibit to her complaint. While this argument may seem hyper technical, defendants correctly point out it is plaintiff's burden to put forth evidence that forecloses a finding in defendants' favor as to her claimed ownership of a valid copyright. At minimum, that evidence requires admission of a copy of the registration and a supporting declaration from plaintiff describing her efforts to create and register her work. While plaintiff responds that “there is no requirement that a copy of a certificate even be produced in a pleading, much less as an exhibit” (Pl.'s Reply (dkt. #38) 2), but this, again, entirely misses the point that she has the burden of proof. Said another way, plaintiff is not opposing a motion to dismiss; instead, she is moving for judgment in her favor on claims for which she bears the burden of proof. Therefore, she cannot simply rely on allegations in a complaint that have been denied by the opposing party.

         Even more specifically, plaintiff's claims require her to prove a number of elements that have been denied -- either outright or under Rule 8(b)(5) -- by defendants: (1) that she owns a valid copyright, which encompasses a finding that the photographs are subject to copyright protection; (2) that defendants used her photographs without her permission; (3) that such copying was in reckless disregard of her rights; (4) that defendants removed her copyright management information or knew that it had been altered; (5) that the individual defendants profited from direct infringement; and (6) that the individual defendants have the right and ability to control infringement. (Pl.'s Opening Br. (dkt. #36) 12, 16, 18-19.) Given her allegations and the nature of copyright law, plaintiff may well be capable to proving each of these elements and defendants may be unable to prove any of their affirmative defenses, but defendants are entitled to hold her to ...

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