UN ITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF

FLORID A

CA SE N O . 9:20-CV -81280

M elissa Arnette Elliott

V s.

Terry W illiams

FILED BY D.C.

û2T 2 1 2222

ANGELA E. NOBLE

GLEBK U S. DIST G'IT s. n. oF Fl.k. - Fc Nuo.

Defendant's M otion to Dism is-s or Transfer Plaintiff s First Amended Complaint

This motion is being filed pursuant to Rules 12b (2), and 12b (6) .

FRCP 12 b

(b) How TO PRESENT DEFENSES.

Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if

one is required. But a pal'ty may assert the following defenses by m otion:

(1) lack of subject-matterjurisdiction;

(2) lack of personal jurisdiction;

(3) improper venue;

(4) insufficient process',

(5) insuftkient service of process;

(6) failure to state a claim upon which relief can be granted; and

(7) failure to join a party under Rule 19.

The Southern District of Florida Lacks Personal Jurisdiction over the Defendant

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The court lacks specitic personal jurisdiction over me as is alleged in the FAC and the plaintiff

can produce no evidence to support specific jurisdiction in the Southern District of Florida

regarding the sound recordings/ songs at issue in the FAC.(See W aite v. All Acquisition Corp.,

No. 16-15569 (1 1th Cir. 20l 8)) The songs in controversy giving rise to the plaintiff's claims

were created in PA (specific jurisdiction) (ld.)

See (FAC paragraphs 22-24, 25, 28, 40) where plaintiff concedes to creating sound recordings in

my home studio. See also PA court Order stating the studio was located in Philadelphia, PA (D1

9 Exhibit C at 2).

The plaintiff s claim s could have only been properly brought in the district of Delaware where 1

reside or am çûat home'' (ld) or the Eastern District of PA where the songs giving rise to the

plaintiff's claims were recorded (ld). Certainly, the plaintiff's counsel is aware of how personal

jurisdiction works, which is why counsel misrepresented that jurisdiction was proper.

The plaintiff misrepresents in paragraphs 44-62 of the FAC that comm unications on my behalf

were sent to the plaintiff in Florida. The comm unications cam e from m y acquaintance who 1

directed to contact the plaintiff s m anagement com pany, which she did. Shortly thereafter,

Counsel's partner Sim ran Singh of Singh, Singh, Trauben L4w firm , began a series of email

correspondence between February 201 7 and August 2017 with her (Gary). The law firm is

located in Beverly Hills, CA- not Florida. There were no events giving rise to the plaintiffs

claims that happened in the state of Florida, and the plaintiff bear the burden of proving

jtlrisdiction is proper. (Citation omitted)

ln light of the deliberate misrepresentations to the court regarding jurisdiction, I ask that the

court dismiss the plaintiffs case with prejudice for lack of personal jurisdiction. and issue an

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order barring the plaintiff from daiming in any legal proceeding that the songs in my collection

a<e not qo-owned, joint works, or that my vopyright registrations are invalid. Legally the plaintiff

should be prohibited from asserting that there was no intent to create joint works with me and

that the song copyrights are not co-owned.

The FAC-Fail-s to State a Plausible Claim

The plaintiffs FAC fails to state a claim because on its face it is a direct contradiction of the

original pleading. The court may takejudicial notice of public records particularly documents filed

in this case (Citation Omitted). The defendant can't in one pleading state she never had any

intention to have anyjoint works or recordings with me then switch the story to state that she only

intended to jointly own our published material and any unpublished material she solely owns the

lyrics, vocal arrangements and melodies to. lt just is not plausible. See Original Complaint

paragraph 60 in Com parison to FAC paragraph 38.

60- ttplaintiff never, at any time, intended to be a joint author with Defendant

W illiam s of any m usical works or recordings.''

38. ttplaintiff Elliott also never, at any time, intended to share any rights of

authorship with Defendant W illiam s in the lyrics, vocal arrangements and m elodies

embodied in any of the Unpublished Recordings. . .''

To survive a Rule 12(b)(6) motion to dismiss, çta complaint must ( q contain sufficient factual

matter, accepted as true, to tstate a claim to relief that is plausible on its face.''' Am . Dental Ass'n

v. Cigna Corp., 605 F.3d 1283, 1289 (1 1th Cir. 2010) (quoting Bell Atl. Corp. v. Twombly, 550

U.S. 544, 570 (2007)). EtA claim has facial plausibility when the plaintiff pleads factual content

that allows the court to draw the reasonable inference that the defendant is liable for the m isconduct

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alleged.'' Brooks v. W arden, 800 F.3d 1295, 1300 (1 1th Cir. 2015) (quotation marks omitted). The

court may also consider public records (Citation Omitted)

lt is not plausible that the plaintiff did not intend to jointly own all of the material with (including

the unpublished material) me when her story has changed from one complaint to the next.

This is also evident in reviewing the plaintiffs declaration as a defendant in m y pending action in

PA, where she previously asserted a lack of intent to have any joint material with me whether

published or unpublished ( See 2:2018-cv-054 1 8 (paed)N1QA, Declaration of M elissa Elliott at

paragraph 24- D1 50). In the declaration she states she came to my home studio to rehearse

preexisting lyrics. In the FAC here she states she does have published songs created with me. (FAC

at 64). The court is not bound to accept the plaintiffs claims as true when they are not plausible.

Given the plaintiffs conflicting and directly contradictory statements regarding intent, the court

should not accept the plaintiff s claims as true, but rather the claims are proven false.

W ith intent not being an issue, and the plaintiff's own testimony being that she did record the

songs with me in my studio (FAC paragraphs 22-24, 25, 28, 40,), then joint ownership can be

established.

17 U.S.C. j 101 states, tçA joint work' is a work prepared by two or more authors with

the intention that their contributions be merged into inseparable or interdependent parts of

a unitary whole.''. 17 U.S.C. j 201(a) states, tf opyright in a work protected under this

title vests initially in the author or authors of the work. The authors of ajoint work are

co-owners of copyright in the work.'' See M .G .B. Homes v. Am eron Homes, 903 F.2d

1486, 1492 (11th Cir. 1990)

As a matter of law, the plaintiff s declaratory judgment claim for sole copyright

ownership fails, absent a written agreement that would allow an inseparable work to be

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separated as the plaintiff describes. See 17 U.S.C. j 204(a) A transfer of copyright

ownership, other than by operation of law, is not valid unless an instrum ent of

conveyance, or a note or mem orandum of the transfer, is in writing and signed by the

owner of the rights conveyed or such owner's duly authorized agent.

The plaintiff Fails to state her claim .

Plaintiffs FAC is Time Barred

The plaintiff's claims are time barred. (Please first see M otion to Strike (D1 10) for additional

timeliness issues with the FAC)

The Eleventh Circuit recognizes a 3-year statute of limitations on Copyright Claim s. The

Eleventh Circuit has further held that a claim concerning Copyright ownership accrues only

once. (See W ebster v. Guitars- No. 19- 1 0013 (1 1th Cir. 2020) Holding that an ownership claim

accrues when the plaintiff learns, or should as a reasonable person have learned, that the

defendant was violating (her) ownership rights.

See D1 6 Exhibit B., which is correspondence on m y behalf inform ing the plaintiff s counsel

(law firm) that l claimed copyrights to a11 the joint works in my sound recording collection with

credits for writing, music and sound recording . The correspondence is from February 2017. ln

the correspondence counsel acknowledges the existence of his client's alleged potential

ownership claim, and m y rights as a co- writer, producer and engineer of all of the songs were

asserted at that tim e.

See plaintiffs FAC, paragraphs 44-62, where the plaintiff introduces this series of

com munications on the face of the FAC.

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At that time the plaintiff learned or as a reasonable person should have learned via her attorneys

who were in direct receipt and dialogue, that I was violating the plaintiff's rights by claiming

authorship for the words, music and sound recordings contained in m y collection of songs with

the plaintiff. Counsel is aware that the plaintiff's claim s are tim e barred considering the

voluminous letters written on m y behalf and by counsel on behalf of the plaintiff as far back as

Febnzary 2017.

For puposes of Rule l2(b)(6), ttla) court is generally limited to reviewing what is within the four

com ers of the complaint on a m otion to dismiss.'' Bickley v. Caremark RX, Inc., 461 F.3d 1325,

1329 n.7 (1 1th Cir. 2006). However, ttwhere the plaintiff refers to certain documents in the

complaint and those documents are central to the plaintiff's claim , then the Court m ay consider

the documents part of the pleadings for purposes of Rule 12(b)(6) dismissal.'' Brooks v. Blue

Cross & Blue Shield of Florida, lnc., 1 16 F.3d 1364, 1369 (1 1th Cir. 1997).

Given that the plaintiff was m ade aware of her claim to ownership in Febnzary 2017, at the latest,

the plaintiff s claim for declaratoryjudgment for copyright ownership should have been tiled by

February 2020.

This action was tiled August 6, 2020- so the plaintiff s claim s are tim e barred. The plaintiff has

not alleged and carmot produce any evidence as to why the lim itations period should be tolled.

The plaintiff has had ample time to legally assert her claim to copyright ownership of a11 of the

lyrics, vocal arrangements and melodies in ourjoint works and my sound recording collection.

She decided not to m ove on her allegedly violated rights while defending against m y claim s at

the PA Eastem Distrid Court from Dec. 2018- Present. The plaintiff has not asserted her

copyright ownership claim while defending in PA prior to expiration of the 3-year lim itations

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period and certainly should not be allowed to assert her time barred claim in anotherjurisdiction

nOW .

M otion to Transfer

This motion is also being filed pursuant, 28 U.S. Code j 1404.

28 U.S. Code j 1404 Change of venue

(a)

For the convenience of parties and witnesses, in the interest of justice, a district court may

transfer any civil action to any other district or division where it m ight have been brought or to

any district or division to which all parties have consented.

I am a pro se litigant residing in Delaware, and am currently the Pro se Plaintiff in an action for a

Declaratory Judgement, and an Accounting. against the plaintiff in this action- M elissa Elliott.

W e have been involved in litigation in The Eastern District of PA, since 2018 (2:201 8-c:,-0541 8

(paedl) . I was recently granted leave in that case, to file a third am ended com plaint against m y

co-owner- M elissa Elliott, to recover an accounting of profits received from her exploitation of

our joint works.

Similarly, l have also been involved in litigation with third parties-W arner M usic et al, Tim othy

M osley, the Estate of the artist Aaliyah, and Blackground Records, in two jurisdictions, PA and

DE, and in DE (1 :2020cv00316) was recently granted leave to file an amended complaint against

W arner M usic Group et al, for an accounting as co-owners via assignment, authorized by M elisa

Elliott.

For the pum ose of convenience to me and to plaintiff Elliott who are currently involved in

pending litigation regarding the material plaintiff Elliott seeks declaratory judgment of sole

ow nership to, the court should transfer the plaintiff's case to the Eastern D istrict of PA or to the

District of Delaware.

In addition, the court should grant my motion to transfer in the interest of justice and for the

purposes of efficiency and consistency across legal proceedings.

See CASE NO. 19-61 I67-CIV-ALTMAN/HUnt (S.D. Fla. Nov. 19, 2019)

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itsection 1404(a) is intended to place discretion in the district court to adjudicate motions for

transfer according to an individualized, case-by-case consideration of convenience and fairness.

A motion to transfer under i 1404(a) thus calls on the district court to weigh in the balance a

number of case-specific factors.'' Stewart Org. v. Ricoh Corp., 487 U.S. 22. 29 (1988) (citation

and internal quotation marks omitted). Those factors include:

(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease

of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts;

(5) the availability of process to compel the attendance of unwilling witnesses', (6) the relative

means of the partles; (7) a forum's familiarity with the governing law; (8) the weight accorded a

plaintiff s choice of forum; and (9) trial efficiency and the interests of justice, based on the

totality of the circum stances.

Manuel v. Converv s Corp., 430 F.3d 1 132. 1 135 n.1 (1 1th Cir. 2005). ''The plaintiffs choice of

forum should not be disturbed unless it is clearly outweighed by other considerations.'' Robinson

v. Giarmarco dr Bill, P.C., 74 F.3d 253. 260 (1 1th Cir. 1996) (intemal quotation marks omitted).

td @ O. 19-61 167)

Other considerations in this case outweigh the plaintiff's choice of forum . 8 out of 9 of the

factors weigh heavily in favor of transfer. (Supra)

1.M y witnesses and I are located in the Philadelphia/ Delaware region.

2. The location of witnesses and evidence in this case is in the Philadelphia/ Delaware region.

3. It would be more convenient for me tb defend against the plaintiffs case in the Eastern District

of PA where it could have been brought, since the sound recordings at issue in the plaintiff s

complaint, were created in my hom e studio in Philadelphia, PA between 1993 and 1996. - or in

DE where l reside and the claim could have been brought.

4. PA is also where the locus of operative facts are located and witnesses can attest to facts

relating to the sound recordings created during the studio period. 1 am a resident of Delaware

having knowledge of a11 relevant facts relating to the plaintifrs claim .

5. All of my witnesses again are located in the Philadelphia/ Delaware region

6. I am pro se litigant. l have had to pay extra m oney to overnight mail to the Southern District of

Florida Court, while m ore conveniently in the PA District 1 am perm itted to make filings via

em ail, and l live in Delaware with the District Courthouse conveniently accessible to m e. l have

directed my legal research efforts towards the Third Circuit Rules Procedures Laws and Rulings.

The plaintiff is a multi-platinum selling recording artist, and has the m eans to litigate her

complaint in PA pending actionjust as she has defended in that action.

7. The PA and DE District courts are familiar with the governing law s regarding the plaintiff s

claims. ln fact, 1 have a pending declaratory judgement action along with the accounting claim

against the plaintiff in the PA court. The courts in PA and DE have ruled that as a co-owners the

plaintiff and her assignees have a duty to account to me for the profits earned from the use of the

Case 9:20-cv-81280-RKA Document 12 Entered on FLSD Docket 10/02/2020 Page 8 of 11
material at issue in the plaintiffs complaint.- That is why she is seeking the declaratory judgment

nOW .

8. For the purpose of trial efficiency it is more efficient to have one trial at the PA Eastern

District Court where the sam e case is pending against the plaintiff and she has had am ple tim e to

file a counterclaim in that action over the past 2 years. Or alternatively having one trial at the DE

District court along with assignees W arner et al.

Given the totality of the circum stances, and the factors weighing heavily in favor of transfer, the

court should transfer the plaintiffs case to the PA Eastern district court in the interests of

convenience and justice.

For the foregoing reasons, 1 request the court dismiss the plaintiff s complaint with prejudice or

transfer it to the Eastern District of PA or to Delaware where litigation regarding the songs at

issue in the plaintiff s complaint is currently pending.

September 30, 2020

Sincerely,

Terry W illiam s

Pro se Defendant

105 Persim m on Pl.

Bear, DE 19701

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UN ITED STATES DISTRICT COURT FOR THE SOU THERN DISTRICT OF

FLORID A

CA SE NO. 9:20-CV-81280

M elissa Arnette Elliott

V s.

Terry W illiam s

CERTIFICATE OF SERVICE

1, Terry W illinms, do certify that on this day 1 caused a true and correct copy of Defendant's

M otion to Dismiss or Transfer Plaintiff's First Am ended Complaint, on the plaintiff s attom ey,

via regular mail at the address on file.

September 30, 2020

Sincerely,

Terry W illiams

Pro se Defendant

105 Persim mon Pl.

Bear, DE 19701

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