Say that three times fast and you may not fall into one, specifically, pleading multiple claims and incorporating by reference all previous allegations. This is a big problem where claim one is a copyright claim, and claim two asserts a claim for unfair competition. Some attorneys lazily slap on the label unfair competition, incorporate by reference all prior allegations, and then make the bald statement that defendant’s conduct constitutes unfair competition. In such circumstances, a Rule 12(b) motion to dismiss may be granted, see Meeco Mfg. Co. v. True Value Co., 2007 WL 1051259 (W.D. Wash. April 4, 2007); Blue Nile, Inc. v. Ice.com, Inc., 2007 WL 172613 (W.D. Wash. Jan. 18, 2007). Claiming that one is entitled to plead in the alternative will cut it: one has no right to plead a preempted state claim in the alternative, Meeco Mfg., 2007 WL 1051259, at*3; Moser Pilon Architects, LLC v. HNTB Corp., 2006 WL 2331013, at *11 (D. Conn. Aug. 8, 2006).
The contrary opinion in Ulloa v. Universal Music and Video Distribution Corp., 2004 WL 840279 (S.D. N.Y. 2004) and 303 F. Supp.2d 409 (S.D.N.Y. 2004), are baffling. Plaintiff asserted claims for copyright, infringement, declaration of joint ownership Lanham Act § 43(a), and unjust enrichment. The first two claims could be pled in the alternative, i.e., if defendant was not a joint author, it was an infringement. Defendant rightly argued that the unjust enrichment claim was preempted, but the court held, laconically, that plaintiff was entitled plead it “in the alternative to [its] copyright infringement claim.” 303 F. Supp.2d at 419. Pleading in the alternative is not the issue, however. The issue is whether the claim pled in the alternative was preempted, as it most arguably was. On a motion for reconsideration, the court attempted to explain its decision, but only dug a deeper hole by stating: “Although Plaintiff is not entitled to bring an unjust enrichment claim that is identical to her copyright infringement claim, the Court's previous opinion explicitly stated that the unjust enrichment claim was construed as a claim in the alternative to the copyright claim and further stated that the unjust enrichment claim was not preempted ‘[i]f a jury finds that Plaintiff has no copyright in the composition or sound recording of the Vocal Phrase'—because, as an employee under the work for hire doctrine, the employer would be the copyright author—‘or that she licensed her copyrights to Defendants,’ ” 2004 WL 840279 at *1846–1847. This passage misses the point: ownership (or a lack thereof) is not related to preemption. Ulloa is erroneously decided.
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"pleading multiple claims and incorporating by reference all previous allegations. This is a big problem where claim one is a copyright claim, and claim two asserts a claim for unfair competition. Some attorneys lazily slap on the label unfair competition, incorporate by reference all prior allegations, and then make the bald statement that defendant’s conduct constitutes unfair competition."
To survive the pre-emption motion the plaintiff must show they are making a claim that requires some extra element to be proven beyond what is required for the copyright claim. Isn't the problem simply that the pleader may fail to plead that extra element? It shouldn't matter whether they plead it before the copyright claim and then incorporate it by reference, or wait until after the copyright count and then plead the additional element. If they leave it out of both places, then they've failed to plead a necessary element of their claim and it should be struck. If they argue there is no extra element, then the claim is preempted. Neither seems to me to be particularly related to how they plead, as much as it is to what they plead.
Anonymous,I agree heartily. I put the copyright-unfair competition sequence in that order because it is the typical one; the real point, as you point out is that the pleader fails to add anything to the state claim beyond what is in the copyright claim, particularly any element that qualititatively changes the nature of the claim.
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