     Case: 15-30472       Document: 00514055205         Page: 1     Date Filed: 06/29/2017




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                           United States Court of Appeals

                                       No. 15-30472
                                                                                    Fifth Circuit

                                                                                  FILED
                                                                              June 29, 2017

MELVA LEONA VALLERY,                                                         Lyle W. Cayce
                                                                                  Clerk
               Plaintiff - Appellant

v.

AMERICAN GIRL, L.L.C., a wholly owned subsidiary of Mattel Toys,

               Defendant - Appellee




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:13-CV-5066


Before KING, JOLLY, and PRADO, Circuit Judges.
PER CURIAM:*
       Melva Leona Vallery asserts a claim of copyright infringement against
American Girl, LLC (“American Girl”). Specifically, Vallery alleges that the
nine books in the American Girl series featuring “Marie-Grace” and “Cecile” in
antebellum New Orleans infringe the copyright on Vallery’s unpublished
novel, “Baba Grace and the Necklace,” set partially in Reconstruction-era New
Orleans. Observing that the works are “wholly dissimilar,” the district court



       * Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5th Cir.
R. 47.5.4.
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found that Vallery did not plead a valid claim of copyright infringement,
upheld the magistrate judge’s order denying Vallery’s motion to file an
amended complaint as “futile,” and dismissed Vallery’s claims against
American Girl with prejudice. We AFFIRM.
                                            I.
       In July 2013 Vallery, proceeding pro se and in forma pauperis (“IFP”),
filed suit against American Girl, alleging copyright infringement. Vallery
claimed that American Girl infringed the copyright on her book “Baba Grace
and the Necklace.”         Vallery further alleged “more than 100 substantial
similarities” between her unpublished book and the nine American Girl books
in the “Marie-Grace” and “Cecile” series. Vallery later obtained counsel and
amended her complaint to include as a defendant Evelyn Coleman, the author
of the American Girl book “The Cameo Necklace,” which Vallery argues is
strikingly similar to “Baba Grace and the Necklace.” 1
       In January 2014, Vallery filed through counsel a notice of voluntary
dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil
Procedure.       Vallery then moved pro se to reopen the case.            In Vallery’s
memorandum in support of her motion to reopen the case, she explained that
she had entered “Baba Grace and the Necklace” in the Amazon/CreateSpace
Breakout Novel Writers’ Contest in spring 2011. The Contest included 10,000
entries, and her manuscript did not make the first cut. Expressing her intent
to finish all three books of a trilogy in which “Baba Grace and the Necklace”
would be the first, Vallery acknowledged that she has not published her book.
       The district court granted Vallery’s motion to reopen the case. At this
time, Vallery’s counsel formally withdrew. Vallery then filed a motion for



       1   Coleman, however, was never served and was subsequently removed from the case
caption.
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                                  No. 15-30472
summary judgment and a motion for leave to amend her complaint. The
magistrate judge (“MJ”) denied Vallery’s motion to amend. The MJ found that
any amendment to the complaint would be futile because Vallery was unable
to plead or allege facts sufficient to support a claim of copyright infringement.
Vallery then sought review by the district court. The district court, however,
affirmed the MJ’s order denying Vallery’s motion to amend and dismissing
Vallery’s claims with prejudice. Both the MJ and the district court relied on
case law from this circuit involving the evidentiary standard of establishing a
prima facie case of copyright infringement.
      Vallery timely appealed and moved for leave to proceed IFP. The district
court denied Vallery’s motion to proceed IFP. This Court, however, granted
Vallery’s IFP motion, noting that the district court’s dismissal of Vallery’s
claims based on lack of sufficient factual allegations may have been at odds
with Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002).
                                        II.
      In general, we review a district court’s denial of a motion to file an
amended complaint under an abuse of discretion standard. City of Clinton v.
Pilgrim’s Pride Corp., 632 F.3d 148, 152 (5th Cir. 2010). When the district
court’s denial is based solely on futility, however, “we apply a de novo standard
of review identical, in practice, to the standard used for reviewing a dismissal
under Rule 12(b)(6).” Id. (citing Wilson v. Bruks-Klockner, Inc., 602 F.3d 363,
368 (5th Cir. 2010)). Moreover, “[t]his court may affirm the district court’s
dismissal ‘on any grounds supported by the record.’” Id. at 153 (quoting Hosein
v. Gonzales, 452 F.3d 401, 403 (5th Cir. 2006)).
      Here, because the MJ’s denial of Vallery’s motion to amend was based
on futility, the district court considered—as does this court on appeal—
whether Vallery’s complaint would survive a motion to dismiss under Rule
12(b)(6), which requires the plaintiff to allege sufficient facts to “raise a right
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to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,
555 (2007); see also City of Clinton, 632 F.3d at 153. Further, “all well-pleaded
facts are viewed in the light most favorable to the plaintiff, but plaintiffs must
allege facts that support the elements of the cause of action in order to make
out a valid claim.” City of Clinton, 632 F.3d at 152–53. In short, enough facts
must be pleaded to render the claim “plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). An IFP civil
rights claim must be dismissed if it fails to state a claim upon which relief may
be granted. 28 U.S.C. § 1915(e)(2)(B)(ii).
      Although we do not typically consider material outside of the pleadings
when ruling on a Rule 12(b)(6) motion, the works at issue in copyright disputes
are “central” to the plaintiff’s claim and therefore may be considered. See
Collins v. Morgan Stanley Dean Witter, 224 F.3d 496, 498–99 (5th Cir. 2000)
(“We note approvingly, however, that various other circuits have specifically
allowed that ‘[d]ocuments that a defendant attaches to a motion to dismiss are
considered part of the pleadings if they are referred to in the plaintiff’s
complaint and are central to her claim.’” (quoting Venture Assocs. Corp. v.
Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993))).
      Vallery’s pleading is pro se, and the general rule is that pro se pleadings
are “h[e]ld to less stringent standards than formal pleadings drafted by
lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972). “[L]egal conclusions
masquerading as factual conclusions,” however, are no more permitted in pro
se pleadings than in attorney-drafted pleadings. Taylor v. Books A Million,
Inc., 296 F.3d 376, 378 (5th Cir. 2002) (quoting S. Christian Leadership
Conference v. Supreme Court of the State of La., 252 F.3d 781, 786 (5th Cir.
2001)).




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                                     III.
      Vallery contends that American Girl’s “Marie-Grace” and “Cecile” books
infringed the valid copyright on her novel, “Baba Grace and the Necklace.” A
claim for copyright infringement requires that the plaintiff show “(1)
ownership of a valid copyright, and (2) copying of constituent elements of the
work that are original.” Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S.
340, 361 (1991). In this case, the MJ found that, although Vallery alleges
ownership, she “has not pleaded facts that show that American Girl supposedly
‘copied’ her ‘Baba Grace’ work.” Vallery v. Am. Girl Dolls, No. 13-5066, 2015
WL 1539253, at *2 (E.D. La. Apr. 6, 2015).
      Vallery’s ownership of copyright in her work—the first prong of the
copyright infringement claim—is not disputed in this case. The second prong—
that of unauthorized copying—is disputed. To establish “copying,” a plaintiff
must show “factual copying and substantial similarity.” Guzman v. Hacienda
Records and Recording Studio, Inc., 808 F.3d 1031, 1037 (5th Cir. 2015).
Further, “factual copying may be inferred from (1) proof that the defendant
had access to the copyrighted work prior to creation of the infringing work and
(2) probative similarity.” Id. (quoting Positive Black Talk, Inc. v. Cash Money
Records, Inc., 394 F.3d 357, 368 (5th Cir. 2004), abrogated on other grounds by
Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010)). If “access” cannot be
shown, the plaintiff may prove factual copying by “showing such a ‘striking
similarity’ between the two works that the similarity could only be explained
by actual copying.” Armour v. Knowles, 512 F.3d 147, 152 n.3 (5th Cir. 2007).
      Even if copying is established, it must be legally actionable.        “To
determine whether an instance of copying is legally actionable, a side-by-side
comparison must be made between the original and the copy to determine
whether a layman would view the two works as ‘substantially similar.’”
Creations Unlimited, Inc. v. McCain, 112 F.3d 814, 816 (5th Cir. 1997).
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                                       A.
      The initial question is whether the district court’s dismissal of Vallery’s
complaint at the pleading stage was at odds with Swierkiewicz, 534 U.S. 506.
There, the Supreme Court addressed an employment discrimination claim by
the plaintiff. Swierkiewicz, 534 U.S. at 509. The Second Circuit affirmed the
dismissal of the plaintiff’s claim, holding that employment discrimination
complaints must allege facts to support a prima facie case. Id.; see McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). The Supreme Court, however,
reversed and characterized McDonnell Douglas as “an evidentiary standard,
not a pleading requirement,” Swierkiewicz, 534 U.S. at 510; further, “[t]h[e]
[Supreme] Court has never indicated that the requirements for establishing a
prima facie case under McDonnell Douglas also apply to the pleading standard
that plaintiffs must satisfy in order to survive a motion to dismiss.” Id. at 511.
      The Swierkiewicz issue arises from the district court’s reliance on case
law addressing the establishment of a prima facie case of copyright
infringement at or after the summary judgment stage—not at the pleading
stage. The facts here, however, do not require us to address this alleged error
of the district court in imposing the incorrect standard. Here Vallery bases her
pleading claim on “striking similarity,” a theory that provides an inference of
access that can be determined through a layman’s comparison of the two
works.   Vallery does not allege that American Girl accessed or had an
opportunity to view her unpublished work; and although Vallery mentions her
entry in the Amazon/CreateSpace writing contest, six of the nine Marie-Grace
American Girl books at issue were published in 2010, which was before Vallery
entered the contest. Thus, Vallery could not have alleged facts indicating that
American Girl accessed her work. So, assuming that Vallery proceeded to
discovery, her “striking similarity” allegations would not have been enhanced
by any evidence to inform a comparison between Vallery’s work and American
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Girl’s. Thus, the instant case differs from the situation in Swierkiewicz, where
discovery may have been helpful.
       Further, under the pleading standard of Twombly and Iqbal, Vallery
was required to allege a claim of copyright infringement by circumstantial
evidence that was “plausible on its face.” Twombly, 550 U.S. at 570. Because
Vallery pleaded “striking similarity” and did not allege any other basis for her
claim of copyright infringement, the district court made no reversible error.
                                       B.
      Vallery argues, however, that the district court erred in not allowing
Vallery to amend her complaint. The MJ held, and the district court agreed,
that amending pleadings would be futile because Vallery could not “plead facts
to show that American Girl had direct access to her works.” Vallery, 2015 WL
1539253, at *3.
      Although Vallery’s Amended Complaint surmises that American Girl
may have accessed her manuscript through the Amazon/CreateSpace Contest,
she fails to allege facts to support this contention. Instead, Vallery argues that
access may be inferred through the “striking similarities” between the two
works. When “compar[ing] the works side-by-side and in their entireties,” and
as a “reasonable layman,” however, the MJ found the parties’ works to be
“wholly dissimilar in total concept and feel.” Vallery, 2015 WL 1539253, at *3.
Specifically, the court found that Vallery’s novel was directed toward a more
mature audience: “[I]t includes scenes involving murder, a revenge killing,
demon-fighting, visions, supernatural experiences, and time travel.” Id. The
story is centered on a “magic amulet that once belonged to [protagonist
Louisa’s] grandmother and which [Louisa’s mother] hid when it was in her
possession.” Id. The American Girl novel “The Cameo Necklace,” on the other
hand, is the story of Cecile, who “attends the circus and while there happens
to lose a beautiful (but not magical) cameo necklace that she borrowed from
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her aunt.” Id. at *4. The court observed that “The Cameo Necklace” was
written for young readers, and that it involves Cecile’s visiting the circus,
riding on an elephant, and assisting a runaway slave to escape to freedom. Id.
The district court agreed with the MJ’s position concerning striking similarity
and adopted the MJ’s findings.
      With respect to Vallery’s reference to the Amazon writing contest in her
brief, American Girl argues that “speculation is not a substitute for facts,”
referring to the language from Peel & Co. v. Rug Market, 238 F.3d 391, 394–95
(5th Cir. 2001). Furthermore, as mentioned above, a majority of the American
Girl books at issue were published before Vallery’s entering the CreateSpace
writers’ contest.
       Thus, the district court was correct to conclude that Vallery’s motion to
amend her complaint should be denied on the basis of futility; no amendment
to the complaint could breathe life into her claim. The two works do not bear
such striking similarity that copying may be inferred.
                                            IV.
      In sum, we hold that the district court did not err first, in concluding that
the complaint should be dismissed under the Rule 12(b)(6) standard and,
second, in denying the proposed Amended Complaint on the basis of futility.
Accordingly, we AFFIRM. 2




      2   Vallery’s motion to expedite the appeal is DENIED as moot.
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