    11-4291
    Alexander v. Murdoch


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                           AMENDED SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 16th day of November, two thousand twelve.

    PRESENT:
                GERARD E. LYNCH,
                RAYMOND J. LOHIER, JR.,
                                     *
                      Circuit Judges.
    _____________________________________

    Martin Alexander,

                            Plaintiff-Appellant,

                    v.                                               11-4291

    Keith Rupert Murdoch, et al.,

                            Defendants-Appellees,

    News Corporation, Inc.,

                            Defendants.

    _____________________________________



            *
              The Honorable Jon O. Newman, originally a member of the panel, recused himself
    shortly after oral argument. The two remaining members of the panel, who are in agreement,
    have determined the matter. See 28 U.S.C. § 46(d); 2d Cir. IOP E(b); cf. United States v.
    Desimone, 140 F.3d 457 (2d Cir. 1998).
FOR PLAINTIFF-APPELLANT:                      Martin Alexander, pro se, Youngstown, OH.

FOR DEFENDANTS -APPELLEES:                    Dale M. Cendali, Joshua L. Simmons, Kirkland &
                                              Ellis LLP, New York, NY.

       Appeal from a judgment of the United States District Court for the Southern District of

New York (Paul A. Crotty, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Martin Alexander, proceeding pro se, appeals from the district court’s

judgment granting the defendants’ motion to dismiss his amended complaint in his action for

copyright infringement and related claims. We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the issues on appeal.

       We review the grant of a motion to dismiss de novo, accepting all factual allegations as

true and drawing all reasonable inferences in the plaintiff’s favor. Harris v. Mills, 572 F.3d 66,

71 (2d Cir. 2009). A complaint must plead “enough facts to state a claim to relief that is

plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although factual

allegations in the complaint are assumed to be true, this tenet is “inapplicable to legal

conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Finally, because Alexander is

proceeding pro se, we construe his complaint liberally. Harris, 572 F.3d at 72.

       Here, an independent review of the record and relevant case law reveals that the district

court properly granted the defendants’ motion to dismiss. As an initial matter, the district court

did not err in declining to convert defendants’ motion to dismiss into a motion for summary

judgment under Rule 56. When a motion to dismiss concerns a claim of copyright infringement,

the district court may analyze the works in question to evaluate an allegation of substantial

similarity. Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 64 (2d Cir.

                                                  2
2010). Alexander complains that the district court inappropriately considered other materials

that were submitted by the defendants and not relied upon in the complaint, such as plot

summaries and character descriptions. Nothing in the record suggests that the district court

analyzed Alexander’s copyright infringement claim in reliance on defendants’ supplemental

materials rather than on the primary source materials. To the extent the district court considered

defendants’ materials at all, it properly treated them as advocacy, rather than as factual

allegations.

       The analysis of Alexander’s copyright infringement claim is straightforward. Whether

the “ordinary observer” or “more discerning observer” test is employed, the appropriate inquiry

is whether the copying of protectable elements “is quantitatively and qualitatively sufficient to

support a finding of infringement.” Nihon Keizai Shimbun, Inc. v. Comline Bus. Data, Inc., 166

F.3d 65, 70 (2d Cir. 1999) (internal quotation marks omitted). In applying this test, “we

examine the similarities in such aspects as the total concept and feel, theme, characters, plot,

sequence, pace and setting.” Williams v. Crichton, 84 F.3d 581, 588 (2d Cir. 1996). As applied,

for the reasons thoroughly articulated by the magistrate judge, the sparse and minor similarities

between the allegedly infringing work—the television series “Modern Family”—and the

copyrighted work—the pilot treatment for the television series “Loony Ben”—are insufficient to

establish infringement.

       To the extent the works share a common concept, they do so only “[a]t the most general

level.” Walker v. Time Life Films, Inc., 784 F.2d 44, 49 (2d Cir. 1986). A claim of substantial

similarity must be based on “something more than mere generalized ideas or themes.” Id. at 48-

49 (internal quotation marks omitted). In addition, specific overlapping character traits and plot

aspects identified by Alexander reflect superficial and de minimis details, Warner Bros., Inc. v.


                                                 3
Am. Broad. Cos., 720 F.2d 231, 242 (2d Cir. 1983) (copyright does not prohibit “literal copying

of a small and usually insignificant portion of the plaintiff’s work”); involve general abstractions

insufficiently developed to merit protection, see Nichols v. Universal Pictures Corp., 45 F.2d

119, 121-22 (2d Cir. 1930); or are “standard[ ]in the treatment of [the] given topic” of modern

family life, and are therefore unprotectable scènes à faire, Hoehling v. Universal City Studios,

Inc., 618 F.2d 972, 979 (2d Cir. 1980) (internal quotation marks omitted). We therefore affirm

for substantially the same reasons stated by the district court in its July 2011 decision and by the

magistrate judge in his May 2011 report and recommendation.

          In addition to appealing the district court’s summary judgment ruling, Alexander moves

to impose sanctions against the defendants pursuant to Fed. R. Civ. P. 11(b). Rule 11 sanctions

are more appropriately sought in district courts. See O’Malley v. New York City Transit Auth.,

896 F.2d 704, 709 (2d Cir. 1990). In any event, Alexander’s motion is premised on allegations

of misconduct that are either wholly unsupported by the record or demonstrably false.

Alexander’s disagreement with the defendants’ and district court’s assessment of the merits of

his claims does not justify the baseless and extreme accusations of misconduct in his motion and

briefs.

          We have considered all of Alexander’s remaining arguments on appeal and find them to

be without merit. Accordingly, the judgment of the district court is AFFIRMED, and

Alexander’s motion for sanctions is DENIED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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