UNITED STATES DISTRICT COURT 

EASTERN DISTRICT OF MICHIGAN 

NORTHERN DIVISION 

R.S. SCOTT ASSOCIATES, INC., 

 Plaintiff, Case No. 14-cv-13338 

v Honorable Thomas L. Ludington 

TIMM CONSTRUCTION COMPANY LLC, and 

REX D. REITTENBACH, 

 Defendants. 

__________________________________________/ 

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION 

TO DISMISS AND CANCELING HEARING 

 On August 27, 2014, Plaintiff R. S. Scott Associates, an architectural and engineering 

firm, filed suit against Defendants Timm Construction Company and Rex Reittenbach alleging 

copyright infringement, unjust enrichment, and breach of contract. Plaintiff contends that 

Defendants improperly infringed on its copyrighted architectural plans when they facilitated the 

expansion of St. Paul Lutheran Church in 2012. 

 On October 31, 2014, Defendants filed a motion to dismiss Plaintiff’s Amended 

Complaint for lack of subject matter jurisdiction and for failure to state a claim for which relief 

may be granted. Defendants’ motion will be denied in part and granted in part. Defendants’ 

motion to dismiss for lack of subject matter jurisdiction will be denied, as will their motion to 

dismiss Plaintiff’s copyright claim. However, because the Copyright Act preempts Plaintiff’s 

unjust enrichment claim, and because Plaintiff has not sufficiently pleaded a breach of contract 

claim, these claims will be dismissed. 

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I 

 Plaintiff is an architectural and engineering firm located in Michigan. In June 2009, 

Plaintiff submitted a bid packet for the construction of a new sanctuary for St. Paul Lutheran 

Church1

 in Hubbard Lake, Michigan. Resp. 1. As part of its bid packet, Plaintiff prepared 

technical drawings and an architectural rendering of the proposed sanctuary. Am. Compl. ¶ 8, 

ECF No. 10. St. Paul Lutheran Church paid Plaintiff for the plans submitted. Mot. Dismiss 1, 

ECF No. 12.2

 St. Paul Lutheran Church also solicited bids from construction companies, and Defendant 

Timm Construction, LLC, submitted the lowest bid. Mot. Dismiss 1. Although Defendant 

Timm Construction submitted the lowest bid, budgeting constraints kept St. Paul Lutheran 

Church from beginning the construction project. Id. Therefore, St. Paul Lutheran Church put its 

expansion plans on hold for two years while it continued to raise funds for construction. Id. 

 Around July 2011, the St. Paul Lutheran Building Committee contacted Defendant Timm 

Construction about a revised expansion project that would cost about 25% less than the original 

project. Id. On September 14, 2011, Defendant Timm Construction submitted a proposal to the 

Building Committee Chairperson. Am. Compl. Ex. C. In January 2012, Defendant Timm 

Construction sent a letter to Plaintiff summarizing the proposals it had sent to the Building 

Committee. Am. Compl. Ex. B. 

 Plaintiff claims that the proposal “included detailed plans directly copied from the plans 

drafted by Plaintiff . . . .” Resp. 1. Because Plaintiff believed that Defendant Timm 

 

1

 The Amended Complaint refers to “St. Paul’s Lutheran Church.” However, it appears that church’s name is “St. 

Paul Lutheran Church,” and therefore that spelling will be used throughout this opinion and order. See 

http://www.yellowpages.com/hubbard-lake-mi/mip/saint-paul-lutheran-church-3894287. 2

 All facts cited in the Amended Complaint are accepted as true, in accordance with Rule 12(b)(6). Lambert v. 

Hartman, 517 F.3d 433, 439 (6th Cir. 2008). Defendants’ motion provides additional factual details, however, that 

provide a helpful overview of the background of the case. Therefore, although not necessarily accepted as true, 

these factual statements are included for context. 

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Construction had stolen its plans, it declined to cooperate with Defendant Timm Construction in 

constructing the proposed sanctuary. Id. 

 Because Timm Construction’s proposals were still outside the Building Committee’s 

budget, it sought the services of another architect, Defendant Rex Reittenbach. Mot. Dismiss 2. 

On March 8, 2011, the Building Committee agreed to proceed with Defendant Timm 

Construction’s proposal. Id. at 3. Construction of the facility expansion commenced in lateApril 2012, and concluded on December 31, 2012. Id. 

 During construction, in June 2012, the Building Inspector notified Defendant Timm 

Construction that Plaintiff had requested a copy of Defendant Reittenbach’s construction 

drawings. Id. Defendant Timm Construction provided the drawings to Plaintiff in July 2012. 

 In August 2014, Plaintiff initiated this suit, alleging that Defendants’ design infringed on 

its copyrighted architectural plans. The Amended Complaint also asserts claims for unjust 

enrichment and breach of contract.

II 

 Defendants first contend that this Court lacks subject matter jurisdiction over all of 

Plaintiff’s claims. Defendants note that in its complaint, Plaintiff alleges that “this matter is 

brought under the provisions of the Copyright Act of 1976 and 28 USC § 1332 and 1338 which 

grant this Honorable Federal District Court subject matter jurisdiction.” Am. Compl. ¶ 5 

(emphasis added). Thus, according to Defendants, Plaintiff relied on diversity of citizenship 

jurisdiction as a basis for subject matter jurisdiction. 

 But, as Defendants correctly explain, there is no diversity of citizenship because all 

parties to this suit are Michigan citizens. Indeed, Plaintiff admits that “the wrong statute was 

cited in its jurisdictional statement in the subject Complaint.” Resp. 5. Accordingly, there is no 

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diversity of citizenship jurisdiction pursuant to § 1332. Defendants contend that, due to this mispleading, Plaintiff’s complaint should be dismissed. 

 Whether subject matter jurisdiction exists and whether a plaintiff has correctly identified 

the basis for subject matter jurisdiction in the complaint are two distinct questions. Therefore, it 

will first be determined whether subject matter jurisdiction exists in this case, based on the 

factual allegations in the complaint. If so, then the next question is whether Plaintiff’s mistake 

nonetheless requires dismissal of its complaint. 

 To survive a challenge pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter 

jurisdiction, the pleadings must sufficiently evince a basis for subject matter jurisdiction. But a 

court is not limited to the pleadings; pursuant to Sixth Circuit precedent, a court may also inquire 

into the factual predicates for jurisdiction. See KNC Investments, LLC v. Lane’s End Stallions, 

Inc., 579 F. App’x 381, 383-84 (6th Cir. 2014). When considering a challenge to subject matter 

jurisdiction, a court must assume the factual allegations provided by the plaintiff are true. 

Accordingly, a court should dismiss a plaintiff’s cause of action for lack of subject matter 

jurisdiction “sparingly and cautiously,” and only when no basis for subject matter jurisdiction 

exists. Bowe v. Northwest Airlines, Inc., 974 F.2d 101, 103 (8th Cir. 1992). 

Here, Plaintiff has adequately alleged sufficient facts for the exercise of subject matter 

jurisdiction because it is asserting a claim for violation of the Copyright Act. “Section 301 of the 

Copyright Act broadly preempts state law claims, and federal law vests exclusive jurisdiction 

over such preempted copyright claims in the federal courts.” Ritchie v. Williams, 395 F.3d 283, 

285 (6th Cir. 2005). Because Plaintiff pleaded a copyright claim pursuant to the Copyright Act, 

there is exclusive federal jurisdiction and therefore subject matter jurisdiction. 

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 And because it is apparent from Plaintiff’s Amended Complaint that this Court has 

subject matter jurisdiction, Plaintiff’s Amended Complaint will not be dismissed for misidentifying the correct statute. Indeed, Plaintiff was not completely incorrect—it cited to at least 

one correct statute: 28 U.S.C. § 1338. Section 1338 provides that “[t]he district courts shall have 

exclusive jurisdiction of any civil action arising under any act of Congress relating to . . . 

copyrights . . . Such jurisdiction shall be exclusive of the courts of the states in . . . copyright 

cases.” See also Ritchie, at 286. Therefore, although Plaintiff erroneously pleaded diversity of 

citizenship jurisdiction, Plaintiff also correctly pleaded copyright jurisdiction. Accordingly, 

Defendants’ motion to dismiss pursuant to Rule 12(b)(1) for lack of subject matter jurisdiction 

will be denied. 

III

Defendants next contend that Plaintiff’s copyright infringement claim should be 

dismissed pursuant to Rule 12(b)(6) for failure to state a claim. Specifically, Defendants contend 

that the copyright infringement claim lacks sufficient factual matter to state a plausible claim for 

relief. 

Under Rule 8(a)(2) of the Federal Rules of Civil Procedure, a complaint must provide “a 

short and plain statement of the claim showing that the pleader is entitled to relief” so as to “give 

the defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell 

Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 

(1957) and Fed. R. Civ. P. 8(a)(2)). While this notice pleading standard does not require 

“detailed” factual allegations, it does require more than the bare assertion of legal conclusions. 

Id. Rule 8 “demands more than an unadorned, the defendant-unlawfully-harmed me accusation.” 

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it tenders ‘naked 

assertion[s]’ devoid of ‘further factual enhancement.’” Id.

In other words, a complaint must contain sufficient factual matter, accepted as true, to 

state a claim that is plausible on its face. A claims is plausible on its face if the “plaintiff pleads 

factual content that allows the court to draw the reasonable inference that the defendant is liable 

for the misconduct alleged.” Center for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 

369 (6th Cir. 2011) (quoting Twombly, 550 U.S. at 556). “Determining whether a complaint 

states a plausible claim for relief [is] . . . a context-specific task that requires the reviewing court 

to draw on its judicial experience and common sense.” Iqbal, 556 U.S. at 697. “[W]here the 

well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, 

the complaint has alleged—but has not ‘show[n]’—‘that the pleader is entitled to relief.” Id. 

(citing Fed. R. Civ. P. 8(a)(2)). 

A 

 Defendants contend that Plaintiff’s copyright claim does not present a plausible claim. 

“To establish copyright infringement, a plaintiff must show: ‘(1) ownership of a valid copyright, 

and (2) copying of constituent elements of the work that are original.” Ellis v. Diffie, 177 F.3d 

503, 506 (6th Cir. 1999). “The first prong tests the originality and non-functionality of the work, 

. . . both of which are presumptively established by the copyright registration. The second prong 

tests whether any copying occurred (a factual matter) and whether the portions of the work 

copied were entitled to copyright protection (a legal matter).” Lexmark Intern., Inc. v. Static 

Control Components, Inc., 387 F. 3d 522, 534 (6th Cir. 2004) (internal citations omitted). 

 Plaintiff has made a prima facie showing of the first element—ownership of a valid 

copyright—by attaching a registered copyright to the Amended Complaint. Under copyright 

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law, a registered copyright is entitled to a presumption of validity. 17 U.S.C. § 411(a). (“In any 

judicial proceedings the certificate of a registration made before or within five years after first 

publication of the work shall constitute prima facie evidence of the validity of the copyright and 

of the facts stated in the certificate.”) 

 In regards to the second element—copying original elements of the work—Plaintiff 

alleges that Defendants “ha[ve] intentionally copied and/or substantively copied/used, and 

infringed Plaintiff’s original and unique, copyrighted architectural designs/expressions in 

drafting/preparing construction drawings for the sanctuary at St. Paul Lutheran Church . . . .” 

Am. Compl. ¶ 15. Although this proposition states a legal conclusion, the complaint goes on to 

identify seventeen specific instances in which Plaintiff alleges Defendants’ design infringed on 

Plaintiff’s copyrighted work. See id. at ¶ 16 (“a. The general geometry of the building envelope 

is substantially similar in diameter and proportions. Defendants’ drawings are almost identical in 

length and width. The structural frame, the internal layout of the drawing is basically a mirror 

image of Plaintiff’s copyrighted drawings.”). Construing the Amended Complaint in the light 

most favorable to Plaintiff, these citations to specific instances of alleged infringement suggest 

that Plaintiff has a plausible claim for relief that Defendants copied Plaintiff’s copyrighted work. 

Plaintiff has identified the work produced by Defendants that infringed upon the copyrighted 

work (the St. Paul Lutheran Church expansion plans) and described the 17 ways that Defendants 

infringed upon the copyrighted work. See Nat’l Bus. Dev. Servs., Inc. v. Am. Credit. Educ. and 

Consulting, Inc., 299 F. App’x at 512 (upholding dismissal where there was neither an 

identification of a work produced by the defendants that infringed upon the plaintiff’s 

copyrighted work, nor a description of the manner in which the defendants’ works infringed 

upon the plaintiff’s work.”). Defendants will be able to challenge the claim that these design 

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elements were copied from Plaintiff’s plans, but at this point Plaintiff has sufficiently pleaded a 

claim for copyright infringement. 

B 

 Defendants make a variety of assertions that Plaintiff has not properly pleaded a claim for 

copyright infringement. First, Defendants claim that Plaintiff did not identify the deposit 

materials filed with the application to register the claim of copyright. It is unclear why 

Defendants contend that these materials would need to be disclosed in the Amended Complaint. 

To the extent that Defendants may be claiming that Plaintiff’s copyright was invalid, they are 

entitled to rebut the presumption of validity at a later point. But at this juncture, Plaintiff has 

sufficiently pleaded a claim for ownership of a valid copyright. On the other hand, to the extent 

that Defendants contend that the deposit materials are necessary to compare to Defendants’ 

works, Defendants cites no authority for the proposition that the deposit materials must be 

attached to a complaint. Certainly, the deposit materials, if relevant, will be available in 

discovery. 

 Second, Defendants assert that Plaintiff’s use of “and/or” in its allegations “blur[s] the 

allegations made against” Defendants and “suggests[] that R. S. Scott is guessing, hedging or 

speculating.” Mot. Dismiss 6-7. Defendants contend that this form of “speculation” is precluded 

by the pleading standards set forth in Twombly and Iqbal. 

 When viewed in isolation, the allegations that “Defendant, Timm Construction and/or

Defendant Rex D. Reittenbach, has intentionally . . . infringed Plaintiff’s original and unique, 

copyrighted architectural designs/expressions” indicates some uncertainty regarding whether 

both Defendants committed the copyright infringement. Am. Comp. § 15 (emphasis added). But 

relevant case law counsels a court to view the individual allegations in context of the whole 

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complaint. See In re Packaged Ice Antitrust Litig., 723 F. Supp. 2d 987, 1005-06 (E.D. Mich. 

2010) (holding that a plaintiff’s allegations “must be viewed in the context of the multiple 

additional factual allegations of Plaintiffs’ Complaint which, when viewed as a whole, plausibly 

suggest” a claim for relief); Empire Home Services, L.L.C. v. Empire Iron Works, Inc., 2006 WL 

2269507, at *4 (E.D. Mich. Aug. 8, 2006) (“The court, in determining whether Plaintiff has 

made direct or inferential allegations respecting all the material elements necessary to sustain a 

recovery, will construe Plaintiff’s amended complaint as a whole.”). Moreover, by tying this 

general allegation to those that follow—namely, the seventeen specific instances of alleged 

infringement—the Amended Complaint makes clear that Plaintiffs are alleging that both 

Defendants infringed the copyrighted work—“Defendants’ plans (See Exhibit C) are 

“substantially similar” in that it copies Plaintiff’s unique and original expression/design inter alia

. . . .” Am. Compl. ¶ 16. Reading the complaint as a whole, Plaintiff has sufficiently alleged a 

copyright infringement claim against both Defendants. 

 Finally, Defendants contend that the Amended Complaint is too ambiguous because 

Plaintiff did not attach a copy of the allegedly infringing architectural plans: “There are no plans 

of Mr. Reittenbach attached to the First Amended Complaint.” Mot. Summ. J. 7. Again, 

Defendants cite no authority for the proposition that a plaintiff must attach an alleged infringer’s 

plans to adequately plead a copyright claim. Moreover, the Amended Complaint has sufficiently 

identified the allegedly infringing work—the plans actually used by Defendants in constructing 

the sanctuary. 

 When considering a motion to dismiss pursuant to Rule 12(b)(6), the only question is 

whether a plaintiff “failed to state a claim upon which relief can be granted.” Fed. R. Civ. P. 

12(b)(6). Here, Plaintiff has sufficiently pleaded a claim for copyright infringement by alleging 

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that it owned a valid copyright and by citing specific aspects of its copyrighted work Defendants 

allegedly infringed. “[T]he 12(b)(6) motion does not attack the merits of the case. It merely 

challenges the pleader’s failure to state a claim properly.” Moore v. Johnson, 826 F. Supp. 1106, 

1108 (W.D. Mich. 1993) (citing 5c Fed. Prac. & Proc. Civ. § 1364 (3d ed.)). Therefore, 

accepting all facts as true, and construing the Amended Complaint in the light most favorable to 

Plaintiff, the Amended Complaint states a claim for copyright infringement upon which relief 

may be granted. 

IV

Defendants next contend that Plaintiff’s unjust enrichment claim should be dismissed 

because it is preempted by § 301(a) of the Copyright Act. In determining whether the Copyright 

Act preempts a cause of action under state law, this Court must employ the “extra element test”. 

Wrench LLC v. Taco Bell, 256 F.3d 446, 454 (6th Cir. 2001). That is, if the state claim requires 

an “extra element” beyond those required for copyright infringement, then it is not “equivalent” 

and it is not preempted. Id. If there is no “extra element,” then the claim is equivalent to a 

copyright action and it is preempted by the Copyright Act. Id. 

Under the test articulated in Taco Bell, a district court must first determine whether the 

work is within the scope of copyrightable subject matter as specified in 17 U.S.C. §§ 102-03. Id. 

at 453. Second, the Court must determine whether the state law causes of action in the complaint 

satisfy the equivalency requirement. Id. 

At this stage, neither party disputes that the architectural plans fall within the subject 

matter of the Copyright Act. Therefore, the next step is to analyze the equivalency requirement 

for Plaintiff’s claim for unjust enrichment. Unless Plaintiff’s unjust enrichment claim contains 

an extra element, it will be equivalent to (and therefore preempted by) the Copyright Act. Taco 

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Bell, 256 F.3d at 456 (“[I]f an extra element is required instead of or in addition to the [elements 

of a copyright action] in order to constitute a state-created cause of action, there is no 

preemption, provided that the extra element changes the nature of the action so that it is 

qualitatively different from a copyright infringement claim.”). 

Under Michigan law, claims of unjust enrichment require only a receipt of a benefit and 

some resulting inequity. See, e.g., Barber v. SMH(US), Inc., 509 N.W.2d 791, 796 (Mich. Ct. 

App. 1993). Within the species of unjust enrichment claims, a distinction exists between “an 

action based on a contract implied in law [which] requires no extra element in addition to an act 

of reproduction, performance, distribution or display, [and] an action based on a contract implied 

in fact [which] requires the extra element of a promise to pay for the use of the work.” Wrench 

LLC, 256 F.3d at 459. In other words, when an action for unjust enrichment does not allege a 

promise to pay, it includes “no meaningful ‘extra element’ . . . that removes the reformulated 

claims from the policy of national uniformity established by the preemption provisions of § 

301(a).” Ritchie v. Williams, 395 F.3d 283, 287-88 (6th Cir. 2005) (footnote omitted). In other 

words, if a plaintiff—as part of an unjust enrichment claim under Michigan law—asserts that 

there was a promise to pay, this promise constitutes an “extra element” and the unjust enrichment 

claim is not preempted. 

Thus, in similar cases, district courts have concluded that the plaintiffs’ unjust enrichment 

claims are preempted when the plaintiffs make no assertion of a promise to pay. See Diamond v. 

Gillis, 357 F. Supp. 2d 1003, 1009-10 (E.D. Mich. 2005); National Business Development 

Services, Inc. v. American Credit Educ. & Consulting, Inc., 2008 WL 186367, at *4 (E.D. Mich. 

Jan. 18, 2008) (“Like the plaintiff in Diamond, Plaintiff in this case makes no assertion of a 

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promise to pay. Accordingly, the Court finds that the Copyright Act completely preempts 

Plaintiff’s claim for common law unjust enrichment.”). 

 Like the plaintiff in Diamond and in National Business, Plaintiff has not alleged that 

Defendants promised to pay for the architectural plans. True, the Amended Complaint states that 

“[t]he parties to the contract had the expectation that Defendants would compensate Plaintiff for 

the design/architectural services (see Exhibit D).” Am. Compl. ¶ 34. But exhibit D is not a 

contract or a promise of payment—it is a Preliminary Design and Project Study Phase Report. 

Such an “expectation” of compensation is not equivalent to a promise from Defendants to 

pay for the architectural plans. Diamond, at 1009-10 (plaintiff’s allegation that he produced 

material “with the expectation of appropriate payment for his services” did not constitute a 

promise to pay). Accordingly, Plaintiff has not alleged that Defendants promised to pay it for 

their architectural plans. Thus, the language of the Amended Complaint does not add an “extra 

element” sufficient to overcome preemption. Plaintiff’s claim for unjust enrichment under Count 

Two is preempted by the Copyright Act and will be dismissed. 

Plaintiff nevertheless contends that its unjust enrichment claim does contain extra 

elements: “Plaintiff seeks recovery for Defendants’ failure to attribute the designs to Plaintiff, or 

in the alternative, obtain a license to use those plans.” Resp. 8. But these are not extra elements 

that change the underlying nature of the cause of action. Instead, these are elements that go to 

the heart of a copyright claim. See Diamond, at 1009 (“[A]n action based on a contract implied 

in law requires no extra element in addition to an act of reproduction, performance, distribution 

or display . . . .”). Accordingly, Plaintiff’s unjust enrichment claim is preempted by the 

Copyright Act. 

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V

 Defendant Timm Construction3

 lastly contends that Plaintiff’s breach of contract/thirdparty beneficiary claim should be dismissed because the Amended Complaint does not identify 

the specific contract that forms the basis of the claim. In its Amended Complaint, Plaintiff 

alleges that it was a third-party beneficiary of a contract Defendant Timm Construction “entered 

into . . . for the construction of a sanctuary . . . .” Am. Compl. ¶ 37. Plaintiff does not provide a 

copy of the contract or cite to the contract language exactly, and Timm Constructions asserts that 

this failure requires dismissal of the claim. 

 Although both Iqbal and Twombly demand a certain level of specificity in pleading, 

neither case fundamentally altered the basic requirements for pleading a claim for relief. While 

not explicitly provided for in the Federal Rules of Civil Procedure, parties may plead on the basis 

of information and belief “where the facts are peculiarly within the possession and control of the 

defendant or where the belief is based on factual information that makes the inference of 

culpability plausible . . . .” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) 

(internal citations omitted). 

 Here, Plaintiff is a third-party beneficiary to the contract between Defendant Timm 

Construction and St. Paul Lutheran Church. Plaintiff explains that “[p]rior to filing the 

Complaint, Plaintiff had no opportunity to review the actual contract between the Church and 

Defendant Timm Construction for the construction of the sanctuary.” Resp. 9. This is the type 

of situation where the contract at issue is “peculiarly within the possession and control of” 

 

3

 It appears that Count III of Plaintiff’s Amended Complaint alleges a breach of contract claim against Defendant 

Timm Construction, only. As noted, however, Plaintiff does not allege who the parties to the contract at issue were. 

At this point, because only Defendant Timm Construction is mentioned in Count III, it will be presumed that the 

breach of contract claim is against Timm Construction and not against Reittenbach. 

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Defendant Timm Construction. In this instance, the federal rules permit Plaintiff to plead on the 

basis of information and belief that it is a third party beneficiary to the contract. 

 And although “[i]t is a basic tenet of contract law that a party can only advance a claim of 

breach of written contracy by identifying and presenting the actual terms of the contract 

allegedly breached,” Harris v. American Postal Workers Union, 198 F.3d 245, at *4 (6th Cir. 

1999), there is no requirement that a plaintiff actually attach the contract to the complaint. See 2 

JAMES WM. MOORE ET AL., MOORE’S FEDERAL PRACTICE, ¶ 10.05[4] (3d ed. 1999) 

(“Contract claims will not be dismissed for failure to attach the contract to the complaint.”). 

Moreover, Federal Rule of Civil Procedure 10(c), which allows a party to attach a “written 

instrument” to a pleading, “is permissive only, and there is no requirement that the pleader attach 

a copy of the writing on which this claim for relief or defense is based.” 5A CHARLES ALAN 

WRIGHT & ARTHUR R. MILLER, FEDERAL PRACTICE AND PROCEDURE § 1327 (3d 

ed. 2005). Therefore, Plaintiff’s breach of contract claim will not be dismissed for failure to 

state a claim. 

VI

 In its response, Plaintiff appears to request permission to amend its Amended Complaint 

to more fully explain its copyright infringement claim: “As stated herein, Defendant has refused 

to give written consent to allow Plaintiff to amend the Complaint to alleviate any concerns that 

Defendant may have regarding the same. As noted in FRCP 15(a)(2), this Court should freely 

give leave when justice so requires to amend pleadings.” Resp. 6-7. 

 This Court’s rules prohibit requesting specific relief from the Court as a part of a 

response to an opponent’s motion. See Motion Practice Guidelines for Judge Thomas L. 

Ludington, Separate Motion and Brief, available at 

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http://www.mied.uscourts.gov/Judges/guidelines/topic.cfm?topic_id=360 (“Motions may not be 

included within or appended to a response or a reply.”). Accordingly, the portion of Plaintiff’s 

response requesting leave to amend its Amended Complaint will be disregarded. 

VII

 Accordingly, it is ORDERED that Defendants’ Motion to Dismiss (ECF No. 12) is 

GRANTED IN PART AND DENIED IN PART. Plaintiff’s claim for unjust enrichment 

(Count II) is DISMISSED pursuant to Federal Rule of Procedure 12(b)(6) for failure to state a 

claim. 

 It is further ORDERED that the hearing set for January 21, 2015 is CANCELLED. 

s/Thomas L. Ludington 

 THOMAS L. LUDINGTON 

 United States District Judge 

Dated: December 16, 2014 

 

PROOF OF SERVICE 

The undersigned certifies that a copy of the foregoing order was served 

upon each attorney or party of record herein by electronic means or first 

class U.S. mail on December 16, 2014. 

 s/Tracy A. Jacobs 

 TRACY A. JACOBS 

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