United States District Court, D. South Carolina, Florence Division
Bryan Harwell United States District Judge.
matter is before the Court for consideration of Plaintiff
Kenneth Ray Bates' (“Plaintiff”) objections
to the Report and Recommendation (“R & R”) of
United States Magistrate Judge Thomas E. Rogers,
See R & R [ECF No. 8]; Pl.'s Objs. [ECF No.
10]. The Magistrate Judge recommends that the Court summarily
dismiss Plaintiff's complaint without prejudice and
without issuance and service of process. R & R at 8.
Magistrate Judge makes only a recommendation to the Court.
The Magistrate Judge's recommendation has no presumptive
weight, and the responsibility to make a final determination
remains with the Court. Mathews v. Weber, 423 U.S.
261, 270-71 (1976). The Court must conduct a de novo review
of those portions of the R & R to which specific
objections are made, and it may accept, reject, or modify, in
whole or in part, the recommendation of the Magistrate Judge
or recommit the matter with instructions. 28 U.S.C. §
Court must engage in a de novo review of every portion of the
Magistrate Judge's report to which objections have been
filed. Id. However, the Court need not conduct a de
novo review when a party makes only “general and
conclusory objections that do not direct the [C]ourt to a
specific error in the [M]agistrate [Judge]'s proposed
findings and recommendations.” Orpiano v.
Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In the absence
of specific objections to the R & R, the Court reviews
only for clear error, Diamond v. Colonial Life & Acc.
Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005), and the
Court need not give any explanation for adopting the
Magistrate Judge's recommendation. Camby v.
Davis, 718 F.2d 198, 199-200 (4th Cir. 1983).
proceeding pro se, has filed this action alleging claims
related to the publication and sale of his book Law of
Necessity vs. Criminal Mind of Society on Amazon.com by
Defendants. See Complaint [ECF No. 1]. The
Magistrate Judge recommends summarily dismissing
Plaintiff's complaint for lack of subject matter
jurisdiction because (1) no diversity jurisdiction exists
under 28 U.S.C. § 1332 and (2) no federal question
jurisdiction exists under 28 U.S.C. § 1331. R & R at
objects to the Magistrate Judge's conclusion
that this Court lacks federal question jurisdiction over his
copyright infringement claim. See Pl.'s Objs. at
2-4; R & R at 6-8. The Magistrate Judge makes two
proposed findings regarding the copyright infringement claim.
First, the Magistrate Judge finds Plaintiff's complaint
does not allege ownership of a valid copyright, which is one
of two elements necessary to state a claim for copyright
infringement. R & R at 7; see Feist Publications,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)
(“To establish infringement, two elements must be
proven: (1) ownership of a valid copyright, and (2) copying
of constituent elements of the work that are
original.”). Second, the Magistrate Judge finds Section
411(a) of the Copyright Act requires that a copyright must be
registered before a copyright infringement claim can be
filed-while this requirement is not jurisdictional, it is a
statutory precondition. R & R at 7; see 17
U.S.C. § 411(a) (providing that “no civil action
for infringement of the copyright in any United States work
shall be instituted until preregistration or registration of
the copyright claim has been made”); Reed Elsevier,
Inc. v. Muchnick, 559 U.S. 154, 157-58 (2010) (holding
§ 411(a) is not jurisdictional but is a statutory
precondition to filing a copyright infringement suit).
objections, Plaintiff references and attaches a “self
publishing agreement” that he entered into with ELI
Solutions (a publishing company associated with Defendants).
See Pl.'s Objs. at 3-4; ECF No. 10-1
(agreement). Plaintiff claims he “did in fact pay
[Defendants] $565.00 and $35.00 covering services
outlined” in the agreement, “which also included
[Plaintiff's] copyright and registration obligations with
the [L]ibrary of [C]ongress.” Pl.'s Objs. at 3. The
agreement provides in relevant part that, “The author
maintains that he or she is the sole author of work, and
owner of the copyright and all of the contents of the
work and has full power to enter into this
Agreement[.]” ECF No. 10-1 at 1 (emphasis added).
Plaintiff further seeks permission to amend his complaint
with these allegations and to “submit documentation
showing [Defendants] are in violation of the copyright
mandates.” Pl.'s Objs. at 4.
Plaintiff alleges ownership of a valid copyright by way
of his objections and attached self publishing
agreement, and therefore he may plausibly state a copyright
infringement claim for purposes of federal question
jurisdiction. Thus, the Court would usually grant Plaintiff
leave to file an amended complaint including this
allegation-except that would not entirely cure his pleading
defect, as discussed below. See generally Fed. R.
Civ. P. 15(a)(2) (“The court should freely give leave
[to amend] when justice so requires.”); Goode v.
Cent. Virginia Legal Aid Soc'y, Inc., 807 F.3d 619,
628 (4th Cir. 2015) (“It is this Circuit's policy
to liberally allow amendment in keeping with the spirit of
Federal Rule of Civil Procedure 15(a).”).
Plaintiff has not indicated in any filings whether he can
satisfy the statutory precondition of 17 U.S.C. §
411(a). See Muchnick, 559 U.S. at 157
(“Subject to certain exceptions, the Copyright Act
(Act) requires copyright holders to register their works
before suing for copyright infringement.”).
Specifically, Plaintiff has not alleged he has a valid
copyright registration or preregistration for his book. His
mere assertion that his book is protected by a valid
copyright is not equivalent to alleging and proving the
existence of a valid copyright registration. See,
e.g., Staggs v. West, 2010 WL 2670979, at *3
(D. Md. June 25, 2010) (“[Plaintiff's] repeated
claim that his sound recording is protected by a valid
copyright is not tantamount to alleging and proving the
existence of a valid copyright registration.”); see
generally Cody Foster & Co. v. Urban Outfitters,
Inc., 2014 WL 12577100, at *2 (D. Neb. Aug. 11, 2014)
(recognizing “ownership of a copyright is not the same
as registration”). More importantly, the
online records of the United States Copyright Office do
NOT contain a copyright registered to
Plaintiff. Thus, this case would be subject to
dismissal based upon Plaintiff's apparent failure to
satisfy the statutory precondition of 17 U.S.C. §
411(a). See generally Glenn v. Vandross, No.
3:12-cv-00763-CMC-SVH, 2012 WL 1719192, at *2 (D.S.C. Apr.
27, 2012) (“Within the Fourth Circuit, district courts
have applied Muchnick in analyzing copyright
infringement claims relating to unregistered works and, where
appropriate, have dismissed such claims.” (internal
quotation marks omitted)), adopted by 2012 WL
1745582 (D.S.C. May 16, 2012).
an abundance of caution, the Court will give Plaintiff
fifteen (15) days from the date of this Order to file an
amended complaint that sufficiently alleges and addresses
both of the deficiencies described above. Otherwise, the
complaint is subject to being dismissed without prejudice to
Plaintiff being able to refile his complaint in state court,
since it appears at present that federal court (a court of
limited jurisdiction) does not have subject matter
jurisdiction over his claims.