Abrams v. Scribner's Inc.

• Court: District Court, District of Columbia
• Decided: December 27, 2018
• Docket: Civil Action No. 2018-1648
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ____________________________________ ) ALVIN ABRAMS, ) ) Plaintiff, ) ) v. ) Civil Action No. 18-1648 (ABJ) ) SCRIBNER'S INC., et al., ) ) Defendants. ) ____________________________________)

MEMORANDUM OPINION

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

2 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

3 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

1 Even if plaintiff had failed to respond at all, the Court could not treat the motion as conceded, but would have to make its own assessment under Federal Rule of Civil Procedure 56. In Winston & Strawn, LLP v. McLean, the Court of Appeals held that “[u]nder the Federal Rules of Civil Procedure, a motion for summary judgment cannot be ‘conceded’ for want of opposition.” 843 F.3d 503, 505 (D.C. Cir. 2016). The Court underscored that the “District Court ‘must always determine for itself whether the record and any undisputed material facts justify granting summary judgment.’” Id., quoting Grimes v. Dist. of Columbia, 794 F.3d 83, 95 (D.C. Cir. 2015).

4 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 there is a genuine issue for trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 323

(1986).

The mere existence of a factual dispute is insufficient to preclude summary judgment.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A dispute is “genuine” only if a

reasonable fact-finder could find for the non-moving party; a fact is “material” only if it is

capable of affecting the outcome of the litigation. Id. at 248; Laningham v. U.S. Navy, 813 F.2d

1236, 1241 (D.C. Cir. 1987). In assessing a party’s motion, the court must “view the facts and

draw reasonable inferences ‘in the light most favorable to the party opposing the summary

judgment motion.’” Scott v. Harris, 550 U.S. 372, 378 (2007) (alterations omitted), quoting

United States v. Diebold, Inc., 369 U.S. 654, 655 (1962) (per curiam).

Where the action is brought by a pro se plaintiff, a district court has an obligation “to

consider his filings as a whole before dismissing a complaint,” Schnitzler v. United States, 761

F.3d 33, 38 (D.C. Cir. 2014), because such complaints are held “to less stringent standards than

formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972).

ANALYSIS

Defendant contends that venue is improper in this Court because plaintiff, a Connecticut

resident, “fails to state that either of the parties is [a] resident in or doing business in the District

of Columbia; or that any of the facts alleged in the Complaint occurred in the District of

5 Columbia.” Def. HOA’s Statement of P. & A. in Supp. of its Mot. for Summ. J. [Dkt. # 31-4]

(“Def.’s Mem.”) at 4.

More importantly, however, defendant argues that plaintiff lacks standing to bring this

suit because the “Court cannot grant the relief demanded against HOA.” Id. at 6. Because

“federal courts are courts of limited jurisdiction,” Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375, 377 (1994), and “Article III standing is a prerequisite to federal court jurisdiction,”

Am. Library Ass’n v. FCC, 401 F.3d 489, 492 (D.C. Cir. 2005), the Court will begin and end its

analysis there.

Article III, section 2 of the Constitution permits federal courts to adjudicate only “actual,

ongoing controversies.” Honig v. Doe, 484 U.S. 305, 317 (1988). “To state a case or

controversy under Article III, a plaintiff must establish standing.” Ariz. Christian Sch. Tuition

Org. v. Winn, 536 U.S. 125 (2011); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992).

Standing is a necessary predicate to any exercise of federal jurisdiction, and if it is lacking, then

the dispute is not a proper case or controversy under Article III, and federal courts do not have

subject matter jurisdiction to decide the case. Dominguez v. UAL Corp., 666 F.3d 1359, 1361

(D.C. Cir. 2012). “When there is doubt about a party’s constitutional standing, the court must

resolve the doubt, sua sponte if need be.” Lee’s Summit v. Surface Transp. Bd., 231 F.3d 39, 41

(D.C. Cir. 2000).

To comply with the Article III standing requirements, a plaintiff must show that: “(1) [he]

has suffered an ‘injury in fact’ that is (a) concrete and particularized and (b) actual or imminent,

not conjectural or hypothetical; (2) the injury is fairly traceable to the challenged action of the

defendant; and (3) it is likely, as opposed to merely speculative, that the injury will be redressed

by a favorable decision.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., 528 U.S. 167, 180-

6 81 (2000). “The plaintiff, as the party invoking federal jurisdiction, bears the burden of

establishing these elements.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016). “The

absence of any one of these three elements defeats standing.” Newdow v. Roberts, 603 F.3d

1002, 1010 (D.C. Cir. 2010).

Defendant asserts that plaintiff cannot establish the redressability element of standing.

Def.’s Mem. at 4. In support of it motion, defendant presents a sworn declaration from Karen

Gormandy, the Executive Assistant at HOA Enterprises, Ltd. Decl. of Karen Gormandy

[Dkt. # 31-2] (“Decl. Gormandy”). She avers that “HOA ceased acting as agent to the F. Scott

Fitzgerald Smith Trust . . . on or about February 9, 2018,” approximately four months before

plaintiff filed the suit. Id. ¶ 4. She explains that “HOA does not act for the Fitzgerald Trust and

has no authority to do so,” nor does the company have an “ownership interest in the copyright to

The Great Gatsby.” Id. ¶¶ 4–6. Accordingly, she declares that “HOA has no authority to grant

or deny any license to the copyright in The Great Gatsby.” Id. ¶ 7.

Plaintiff’s pleadings, which focus primarily on the Court’s alleged improprieties, point to

no facts that would give rise to a genuine dispute with respect to defendant’s authority over the

copyright for The Great Gatsby. Buried in his pleadings, plaintiff asserts that the “HOA

president, Phyllis Westberg represented to him on numerous occasions after February 9, 2018

that HOA was acting as agent to F. Scott Fitzgerald Smith Trust (the “Fitzgerald Trust”) as

evidenced by the following email.” Pl.’s Opp. at 14. But plaintiff neglects to attach the email,

and none of the other emails found elsewhere in the pleadings undermine the Gormandy

declaration. At the summary judgment stage of the proceedings, plaintiff “can no longer rest on

. . . ‘mere allegations,’ but must ‘set forth’ by affidavit or other evidence ‘specific facts.’”

Swanson Grp. Mfg. LLC v. Jewell, 790 F.3d 235, 240 (D.C. Cir. 2015), quoting Lujan, 504 U.S.

7 at 561. “Conclusory allegations,” such as those raised by plaintiff, are insufficient to establish

standing. Id.

Because plaintiff has failed to establish redressability, and thus Article III standing, the

Court will grant summary judgment in favor of defendant and dismiss the case since it lacks

subject matter jurisdiction. The Court agrees with defendant that the alleged injury cannot be

“redressed by a favorable decision” in this case because defendant has no authority to grant or

deny any license to The Great Gatsby. Friends of the Earth, Inc., 528 U.S. at 180-81. Since the

absence of this element alone defeats standing, and thus subject matter jurisdiction, the Court

need not go further in analyzing the other standing elements or the venue issue. See Newdow,

603 F.3d at 1010.

CONCLUSION

For the reasons stated, defendant’s motion for summary judgment is granted and the case

will be dismissed with prejudice for lack of subject matter jurisdiction. A separate order will

issue.

AMY BERMAN JACKSON United States District Judge

DATE: December 27, 2018