Ruocco v. Deveau Et Al. (D. Mass. 25-cv-13475).

Plaintiff Amy Ruocco, acting pro se, accused Sandra Deveau, Sara Hazel, and Xavier Group KW Coastal & Lakes and Mountains of infringing Ruocco’s copyright in photographs of a house that Ruocco previously had sold to the defendants. Ruocco says that the defendants used these photographs in connection with promoting rentals of the house through Airbnb. One week after filing an Answer, Deveau (also acting pro se) moved to dismiss the complaint or for judgment on the pleadings in the alternative. Ruocco responded in part by asserting that Deveau’s motion was untimely – under Rule 12(b), a motion to dismiss must be asserted before a responsive pleading (here, the Answer) is filed. Judge Kobick agreed, and denied the motion to dismiss. She converted the motion into one for judgment on the pleadings under Rule 12(c). Judge Kobick then noted that Deveau’s motion failed to develop any argument for judgment in her favor – the elements of copyright infringement were not identified, and there was no assertion that the complaint failed to plead facts supporting infringement. Judge Kobick refused to consider Deveau’s argument, asserted for the first time in her reply, that Ruocco had suffered no actual damages and was precluded from recovering statutory damages, as new argument cannot be brought in a reply brief. She also noted that the Complaint did sufficiently allege actual damages by asserting “loss of licensing revenue and harm to market value” and Deveau’s “wrongful profits.” Accordingly, Judge Kobick denied the motion for judgment on the pleadings.

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