Bradford v. Nationwide Ins, et al

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 19-50555
Summary Calendar

MARK BRADFORD,

Plaintiff - Appellant

v.

NATIONWIDE INSURANCE COMPANY OF AMERICA; NATIONWIDE
MUTUAL INSURANCE COMPANY; ON YOUR SIDE NATIONWIDE
INSURANCE AGENCY, INCORPORATED; NATIONWIDE GENERAL
INSURANCE COMPANY; NATIONWIDE INSURANCE COMPANY OF
FLORIDA; DOES 1 THROUGH 999, INCLUSIVE; PCM LOGISTICS, L.L.C.,

Defendants - Appellees

Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:17-CV-1067

Before JOLLY, JONES, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Mark Bradford appeals the dismissal with prejudice of his copyright
infringement claims, contending that he sufficiently stated his claims and that,
if not, he should be allowed to amend his complaint. We AFFIRM the
judgment.

*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
United States Court of Appeals
Fifth Circuit
FILED
March 12, 2020

Lyle W. Cayce
Clerk
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No. 19-50555
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Bradford is a software developer who alleged in his original complaint
many claims, including copyright infringement,
1
against the defendants. The
district court granted motions to dismiss this claim for failure to allege
infringement of any right under 17 U.S.C. § 106, but the court also granted
Bradford leave to amend the complaint. He amended and reiterated his claim
in a First Amended Complaint. Yet the district court found his pleadings no
more intelligible because Bradford alleged a copyright in the WinSketch
Nationwide Insurance product but pled proof only of copyright registrations for
two other WinSketch-named products, registered in 1995 and 2004.
Accordingly, the district court granted motions to dismiss, this time with
prejudice, because Bradford had failed to allege plausibly that he owned a valid
copyright to the newer product allegedly copied. Bradford then brought a
Rule 59(e) motion, requesting, inter alia, leave to amend his complaint again.
Finally, he sought conversion of that motion, if denied, into a Rule 60(b)
motion, contending that he had newly discovered evidence of copyright
registration. The district court denied relief, and Bradford timely appealed.
Review of a dismissal under Rule 12(b)(6) is de novo. Lindquist v. City
of Pasadena, 525 F.3d 383, 386 (5th Cir. 2008). Review of a denial of Rule 59(e)
relief or of Rule 60(b) relief is for abuse of discretion. Schiller v. Physicians
Res. Grp., Inc., 342 F.3d 563, 566 (5th Cir. 2003) (Rule 59(e)); In re Isbell
Records, Inc., 774 F.3d 859, 869 (5th Cir. 2014) (Rule 60(b)).
A copyright infringement claim has two elements: “(1) ownership of the
copyrighted material and (2) copying by the defendant.” Computer Mgmt.
Assistance Co. v. Robert F. DeCastro, Inc., 220 F.3d 396, 400 (5th Cir. 2000).
On appeal, Bradford contends that he adequately alleged ownership of

1
Over the course of litigation, Bradford has abandoned his other claims after the court
rejected them.
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No. 19-50555
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copyrighted material that Nationwide and other defendants infringed.
Specifically, he maintains that he plausibly alleged a copyright registration to
the source code used in the product allegedly used by defendants. He criticizes
the district court for failing to compare his redacted source-code exhibit,
attached only to his original complaint, which allegedly show that all of the
WinSketch-named products bear identical source code and therefore that the
registrations he owns were valid copyrights for the WinSketch Nationwide
Insurance product.
2
But even if the district court had this duty, which is
dubious, Bradford’s exhibit simply fails to name which product or copyright
registration the source code pertains to.
The deficiencies pointed out by the district court go to more than mere
semantics or misbranding. Inconsistencies in Bradford’s own pleadings
undermine the plausibility of his contention that the Winsketch Nationwide
Insurance product is identical for copyright purposes with his two registered
copyrights.
3

Bradford’s other arguments fail, too. He alleges that the court should
have allowed “limited discovery of the alleged[ly] infringing source codes side
by side,” but his briefing on this point is unintelligible, leaving the point waived
therefore. Bradford challenges denial of leave to amend again, but did not seek
such leave before final judgment, and was on notice, from the court’s first
dismissal, of the need to make plausible allegations that he owned a copyright

2
On their face, these allegations of identical source code for two copyrighted products
make little sense, and fail to strengthen the plausibility of Bradford’s allegations, because
“[a]s a general rule only one copyright registration can be made for the same version of a
particular work.” 37 C.F.R. § 202.3 (2019).

3
As the district court noted, Bradford’s pleadings contend, for instance, that
WinSketch 7.8.3 is within his registered products, but his declaration asserts it never existed.
He also asserts in his brief that “there are a few versions of the [WinSketch] software but all
use a substantial majority of the same source code if not all.”
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to the code underlying the WinSketch Nationwide Insurance program. To the
extent an amendment would have been based on post-judgment
correspondence with the Copyright Office, it is futile because the
correspondence is self-serving (Bradford telling the Copyright Office the new
copyright is based on identical source code with his previous registrations) and
immaterial (post-dating events in litigation). Finally, he alleges judicial bias
in vague terms without having petitioned for recusal. Cf. Avdeef v. Royal Bank
of Scot., P.L.C., 616 F. App’x 665, 671 n.5 (5th Cir. 2015) (deeming judicial
impropriety claims waived for failure to petition for recusal). Bradford’s
contentions do not establish that the court abused its discretion in denying
post-judgment relief.
The district court’s dismissal with prejudice is AFFIRMED.
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