STEVEN D. MERRYDAY, District Judge.
A July 18, 2008, order (Doc. 90) dismisses the third amended complaint (Doc. 69). The order dismisses for lack of personal jurisdiction the plaintiff's claims against the University of Aquila and INFN. The order dismisses the claims against Cornell for failure to state a claim and grants the plaintiff leave to amend the third amended complaint on or before August 22, 2008. An August 20, 2008, order (Doc. 93) denies the plaintiff's motion to reconsider the order dismissing the third amended complaint.
On August 22, 2008, the plaintiff filed the fourth amended complaint (Doc. 94), which again names the University of Aquila and INFN as defendants. The University of Aquila and INFN move (Doc. 99) to dismiss the plaintiff's claims in the fourth amended complaint for lack of personal jurisdiction. Cornell and Skorton move (Doc. 100) to dismiss the claims against them for failure to state a claim.
Personal Jurisdiction over the University of Aquila and INFN
The July 18, 2008, order granting the University of Aquila's and INFN's motions to dismiss for lack of personal jurisdiction finds that the plaintiff failed to allege sufficient facts to show that the defendants fall within Florida's long arm statute, section 48.193, Florida Statutes. The order also states that due process of law mandates dismissal of the plaintiff's claims against the University of Aquila and INFN.
In the fourth amended complaint, the plaintiff alleges that "[t]he conduction of vast business by defendants INFN and [the University of Aquila] in the state of Florida is so internationally well known, that the plaintiff felt no need for documentation in the Third Amended Complaint." (Doc. 94, ¶ 15) "As a mere indication" of the University of Aquila's and INFN's substantial activities in Florida, the plaintiff submits various documents from unidentified websites purporting to establish that the University of Aquila and INFN conduct business in Florida. (Doc. 94, exh. R) For example, Exhibit R1, apparently a printout from a Harvard website, identifies a scholarly article titled "High Resolution Spectroscopy of BΛ12 by Electroproduction." (Doc. 94, exh. R) The webpage lists several dozen authors and lists several dozen institutions under the heading "Affiliation." Among the "affiliated" institutions are INFN and Florida International University. However, the fact that an author from INFN may collaborate with an author from a university in Florida fails to establish that INFN conducts business in Florida. The fourth amended complaint also fails to resolve any of the due process concerns raised in the July 18, 2008 order. Finally, the plaintiff fails to oppose the University of Aquila and INFN's motion to dismiss.
Accordingly, the plaintiff fails to establish (1) that either the University of Aquila or INFN conducts substantial business in Florida and (2) that haling these defendants into Florida court comports with due process. For the reasons stated above and in the July 18, 2008, and the August 20, 2008, orders, the University of Aquila and INFN's motion (Doc. 99) to dismiss is
Failure to State a Claim
Cornell and Skorton move (Doc. 73) to dismiss each claim for failure to state a claim pursuant to Rule 12(b)(6), Federal Rules of Civil Procedure. Against Cornell, the plaintiff asserts claims of copyright infringement (count one), conversion (count two), breach of fiduciary duty (count three), "discrimination under public support" (count four), "misuse of public funds" (count five), and temporary injunction (count six). Additionally, the plaintiff asserts the vicarious liability of Skorton (count seven), Petronzio (count nine), and di Orio (count eleven). The plaintiff files a two-page memorandum (Doc. 102) in opposition to Cornell's motion to dismiss.
To state a claim for copyright infringement pursuant to the Copyright Act, 17 U.S.C. §§ 106 and 501, a plaintiff must prove (1) ownership of a valid copyright and (2) copying by the defendant of original elements of the work.
The fourth amended complaint alleges that the plaintiff owns the copyrights in exhibit C and that the copyrights were properly filed before Cornell's alleged infringement. However, the plaintiff's allegation of infringement falls short. The plaintiff alleges that Cornell "published in their electronic archives `arXiv' works by Cardone, Mignani and Marrani as per exhibit G infringing the plaintiff's copyrights as listed in exhibit C." Exhibit G contains pages of various articles downloaded from Cornell's archives. Each page contains the plaintiff's handwritten remarks such as "fraud in title," "incredible scientific dishonesty and fraud," "not
Florida law defines conversion as "an unauthorized act which deprives another of his property permanently or for an indefinite time."
Breach of Fiduciary Duty
The plaintiff alleges that Cornell breached a fiduciary duty by publishing fraudulent papers by other scientists and by denying the plaintiff the opportunity "to upload his own papers in the same section of the arXiv." (Doc. 94, ¶ 59) "A fiduciary relation exists between two persons when one of them is under a duty to act for or to give advice for the benefit of another upon matters within the scope of that relation."
Discrimination Under Public Support
The plaintiff alleges that he "has been a victim of severe discrimination" by Cornell in violation of 5 U.S.C. § 2302. (Doc. 94, ¶ 62) However, section 2302 applies to government employees. The plaintiff alleges neither that Cornell is a government employer nor that Cornell ever employed the plaintiff. Accordingly, the plaintiff fails to state a claim for "discrimination under public support."
Misuse of Public Funds
The plaintiff alleges that Cornell discriminated against the plaintiff by preventing the plaintiff from "uploading his works in the desired section of the arXiv." The plaintiff alleges that this discrimination constitutes a "clear misuse of public funds" in violation of section 112.313, Florida Statutes. (Doc. 94, ¶ 64) Section 112.113 imposes standards of conduct for "public officers, employees of agencies, and local government attorneys." The plaintiff fails to allege that Cornell is a public officer, employee, or local government attorney for the state of Florida. Accordingly, the plaintiff fails to state a claim for misuse of public funds.
The plaintiff alleges that he has suffered irreparable harm as a result of Cornell's publication of the plagiarizing works. (Doc. 94, ¶ 73) However, for the reasons stated above, the plaintiff fails to allege a legal basis for a temporary injunction and fails to state a claim.
In count seven, the plaintiff asserts Skorton's liability respondeat superior for the actions of Cornell. The plaintiff alleges that "Skorton must assume the primary responsibility for the above identified illegal acts under the doctrine of Respondeat Superior that makes an employer liable for the torts and illegal actions committed by its employees unless duty [sic] corrected." (Doc. 94, ¶ 76)
An employer is vicariously liable for a tortious act of an employee committed within the scope of the employee's employment.
Skorton is an employee of Cornell—Cornell is not an employee of Skorton. Because Cornell is not an agent of Skorton, the plaintiff fails to allege liability respondeat superior against Skorton. For the same reason, the plaintiff also fails to state a claim against either Petronzio or di Orio.
The balance of the fourth amended complaint asserts claims against Phua and World Scientific for copyright infringement (count twelve), conversion (count thirteen), and temporary injunction (count fourteen). The plaintiff's claims against Phua and World Scientific suffer from the same shortcomings as the plaintiff's claims against the other defendants. Plagiarism cannot form the basis of a claim for copyright infringement, and copyright infringement cannot form the basis of a claim for conversion. Accordingly, the plaintiff fails to state a claim against Phua and World Scientific.
A pleading drafted by a
Accordingly, the University of Aquila and INFN's motion (Doc. 99) is