In the United States Court of Federal Claims
No. 20-1460
(Filed: March 26, 2021)
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BASIA EL BEY, Administrator of Tribal *
Administration Trust, *
*
Plaintiff, *
Pro se; Copyright Infringement;
*
RCFC 12(b)(6); Failure to State a
v. *
Claim; Motion for Default Judgment
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THE UNITED STATES, *
*
Defendant. *
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Basia El Bey, Las Vegas, NV, pro se.
Joshua A. Mandlebaum, U.S. Department of Justice, Civil Division, Washington, DC, counsel
for Defendant.
ORDER AND OPINION
DIETZ, Judge.
Basia El-Bey, a pro se plaintiff, brings this suit for copyright infringement against the
United States. Before the Court is the government’s motion to dismiss for failure to prosecute
pursuant to Rule 41(b) or, in the alternative, for failure to state a claim pursuant to Rule 12(b)(6).
Because Plaintiff has failed to plead sufficient facts to state a claim for copyright infringement,
the motion to dismiss is GRANTED. Additionally, Plaintiff’s Motion for Default Judgment is
DENIED.
I. BACKGROUND
Basia El-Bey, “Administrator of Tribal Administration Trust,” filed two separate but
identical complaints1 on October 16, 2020, alleging copyright infringement by twenty-three
individuals—identified by name only2—and the United States. See Compl. at 1-2, ECF No. 1.
El-Bey alleges that these individuals, collectively referred to as “Texas” for some unexplained
1
The complaint and all filings by both parties are identical in this case and Basia El Bey v. United States, Case No.
20-1459. Accordingly, the Court files this Order and Opinion in each of the two cases.
2
Though El-Bey provides no information, it appears that some of these individuals may be state-level officials
involved in a related district court case. See Def. Mot. to Dismiss at 4, ECF No. 8; El Bey et al. v. Dominguez et al.,
No. 2:20-cv-073-Z-BQ (N.D. Tex. Mar. 24, 2020).
reason, “used the United States Postal Service to display the copyright without consent of the
owner.” Id. at 2. According to the complaint, these individuals engaged in “unauthorized uses of
the copyright in retaliation” after a March 2020 lawsuit involving “false arrest, wrongful
trespassing, illegal conversion, and negligence.” Id. Further, El-Bey asserts his claim against the
United States as “co-conspirators” in the copyright infringement because it “failed to exercise
their right and ability to supervise Texas” and “to intercede when they had an obligation to do
so[.]” Id. at 3.
El-Bey provides no information about the copyright or its infringement except to say that
he “is the sole owner of the copyright with reference number CLCN-021919828466-APH” and
that “[i]ts assignment is recorded on UCC Filing number 18-7639746344[.]” Compl. at 2. El-Bey
alleges that he sent a cease and desist notice to “Texas” and the United States in July and
September 2020, with a “fee amount of one million dollars if the defendants failed to cease with
their unauthorized use of the copyright.” Id. at 2-3. “Texas” allegedly again displayed the
copyright on October 1, 2020, “showing their willful intent of their unauthorized use of the
copyright.” Id. at 2. As a result of the alleged infringement, El-Bey seeks various forms of relief,
including “[e]ach Defendant . . . to pay money damages in the amount of One Million Dollar
(1,000,000.00), a certain amount of Twenty-four Million (24,000,000.00) Dollars” and “[a]n
immediate order of Injunction against defendants/respondents to prevent further infringements
upon the copyright.” Id. at 4.
II. PROCEDURAL HISTORY
On December 14, 2020, the government filed its motion to dismiss for failure to
prosecute or, alternatively, failure to state a claim, pursuant Rules 41(b) and 12(b)(6),
respectively, of the Rules of the United States Court of Federal Claims (“RCFC”). See Def. Mot.
to Dismiss at 1, ECF No. 8. First, the government argues that a Rule 41(b) dismissal is
appropriate because El-Bey’s filing his complaint as “Administrator of Tribal Administration
Trust” violates the directive of RCFC 83.1(a)(3) that “[a]n individual who is not an
attorney . . . may not represent a corporation, an entity, or any other person in any proceeding
before this court.” Id. at 6 (quoting RCFC 83.1(a)(3)).3 Alternatively, the government argues
that, under RCFC 12(b)(6), El-Bey has failed to state a claim upon which relief can be granted
because he has pleaded insufficient factual allegations. Id. at 7. Specifically, the government
argues that El-Bey has not shown that he has a registered copyright, identified what the copyright
protects, or explained how the copyright was infringed. Id. at 7-8. In his response, El-Bey merely
reasserts his allegation, without any further factual enhancement, that “Texas started to use the
3
Because the Court dismisses this case on Rule 12(b)(6) grounds, it need not decide the government’s 41(b)
argument. In his response to the government’s motion, El-Bey addresses only the 41(b) argument, stating that
“:Basia: El-Bey: [sic] is the claimant in this case listed as plaintiff, not a trust.” Pl.’s Resp. at 1, ECF No. 12. The
Complaint’s lack of information regarding ownership of the alleged copyright prevents the Court from determining
whether El-Bey has brought this claim in his individual capacity or on behalf of a trust—information about the
existence and nature of which trust is, itself, lacking. As discussed in this Opinion, El-Bey’s failure to establish
ownership of a valid copyright contributes to his failure to state a claim, regardless of whether the alleged copyright
is owned by himself or a trust. As such, in either instance, dismissal under Rule 12(b)(6) is appropriate.
copy-right/copy-claim through the United States postal services for their personal gain without
consent, which is fraud and piracy.” Pl.’s Resp. at 1, ECF No. 12. El-Bey spends the rest of his
response questioning the use of the term “sovereign citizen” in the government’s motion and
demanding that the government answer a series of nonsensical questions. Id. at 2-3.
Following El-Bey’s response, the government elected not to file a reply by the January
22, 2021 deadline, thereby standing on its original motion. See Order, ECF. No 11. On March
19, 2021, the Clerk’s office received from El-Bey a motion for default judgment and supporting
affidavit, which were filed by leave of the Court. See Order, ECF No. 13. Though the bulk of the
motion again takes issue with the government’s use of the term “sovereign citizen” in its motion
to dismiss, it appears that El-Bey seeks entry of a default judgment based on the government’s
decision not to file a reply to El-Bey’s response to the government’s motion to dismiss. See Pl.’s
Mot. for Default J., ECF No. 14.
III. LEGAL STANDARDS
To survive a motion to dismiss under Rule 12(b)(6) for failure to state a claim, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “[T]he tenet that a court must accept as true all of
the allegations contained in a complaint is inapplicable to legal conclusions.” Id. at 678; see also
Twombly, 550 U.S. at 555 (requiring a pleading to offer “more than labels and conclusions”).
Further, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S. at 678. Rather, a plaintiff must plead sufficient
factual matter to “raise a right to relief above the speculative level . . . .” Twombly, 550 U.S. at
555.
The pleadings of a pro se plaintiff are “liberally construed” and “held to less stringent
standards than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
(internal quotation marks omitted). The liberal reading afforded to a pro se plaintiff’s complaint
“may explain [the complaint’s] ambiguities, but it does not excuse its failures.” Henke v. United
States, 60 F.3d 795, 799 (Fed. Cir. 1995). Moreover, “[a]lthough pro se plaintiffs are given some
leniency in presenting their case, their pro se status does not immunize them from pleading facts
upon which a valid claim can rest.” Stroughter v. United States, 89 Fed. Cl. 755, 760 (2009)
(citing Ledford v. United States, 297 F.3d 1378, 1382 (Fed. Cir. 2002); Constant v. United
States, 929 F.2d 654, 658 (Fed. Cir. 1991)).
IV. DISCUSSION
A. Defendant’s Motion to Dismiss
El-Bey’s copyright claim does not contain sufficient factual allegations to survive the
Rule 12(b)(6) standard. The Court of Federal Claims has exclusive jurisdiction over copyright
infringement claims against the United States. 28 U.S.C. § 1498(b). Outside the statutory
exceptions which are inapplicable in this case, registration of a copyright is required to bring a
claim for copyright infringement. 17 U.S.C. § 411(a); see also Reed Elsevier, Inc. v. Muchnuck,
559 U.S. 154, 166 (holding that copyright registration is a nonjurisdictional precondition to suit).
Thus, “[t]o prove copyright infringement, a plaintiff must show (1) ownership of a valid
copyright and (2) copying by the alleged infringer.” Jennette v. United States, 77 Fed. Cl. 126,
131 (2007) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). In an
infringement suit against the United States, the alleged infringer may be the United States itself
or “any person, firm, or corporation acting for the Government and with the authorization or
consent of the Government . . . .” 28 U.S.C. § 1498(b). As such, a suit against the government, if
based on alleged infringement by a different party, requires the plaintiff to prove an additional
element—that the alleged infringer acted on behalf of and with the authorization or consent of
the government. 4 See id.
The allegations of copyright infringement in El-Bey’s complaint amount to nothing more
than the conclusory statements, devoid of any factual enhancement, that he owns a copyright and
that it was infringed upon. First, El-Bey asserts no facts to support his claim that he holds a valid
copyright. The complaint contains only a copyright “reference number” without a certificate of
registration or any description of what the copyright protects. See Compl. at 2. Further, in his
response to the government’s motion to dismiss, El-Bey does not address the government’s
contention that the registration number is inauthentic. See Def. Motion to Dismiss at 2; Pl.’s
Resp. Second, El-Bey provides no factual allegations surrounding the alleged infringement
except to state that the infringers “used the United States Postal Service to display the copyright
without consent[.]” Compl. at 2. Finally, El-Bey provides no facts about the individuals alleged
to have committed the infringement, much less any that would support a finding that they acted
on behalf of and with the authorization or consent of the United States. In fact, the United States’
only involvement, according to the complaint, was its failure to supervise and intervene to
prevent the infringement. Id. at 3. Such an allegation, without any facts regarding the direct
involvement of the United States, is speculative and insufficient to maintain a claim.
In sum, El-Bey has not pleaded sufficient facts to support any element required to state a
plausible claim for copyright infringement against the United States. As such, pursuant to RCFC
12(b)(6), the claim must be dismissed.
B. Plaintiff’s Motion for Default Judgment
The government’s decision not to file a reply to El-Bey’s response to the motion to
dismiss does not warrant entry of a default judgment. Rule 55 permits entry of a default
4
El-Bey appears to seek relief from each of the alleged infringers individually, not just the United States. See
Compl. at 1 (seeking “money damages in excess of One Million Dollars against each defendant”). This Court’s
jurisdiction is confined to reviewing claims for money damages against the United States, not any individual. Brown
v. United States, 105 F.3d 621, 624 (Fed. Cir. 1997). As such, any claim against these individuals would be
dismissed for lack of jurisdiction. The Court, therefore, liberally construes El-Bey’s assertion that the infringers are
“agent[s] and assign[s] of the United States,” Compl. at 2, to mean that they acted on behalf of and with the
authorization of the government, as required to bring a claim under 28 U.S.C. § 1498(b).
judgment only if a party against whom relief is sought “has failed to plead or otherwise defend”
against the claim. RCFC 55(a). El-Bey filed his complaint on October 16, 2020. See Compl.,
ECF No. 1. The government satisfied the responsive pleading requirements by filing its motion
to dismiss on December 14, 2020. See RCFC 12(a)(4); Def. Mot. to Dismiss, ECF. No. 8. The
decision not to file a reply is not grounds for default, as replies to responses to 12(b) motions are
permissive, not mandatory. See RCFC 7.2(b)(2) (“A reply to a response may be filed within 14
days after service of the response.”) (emphasis added); see also ECF No. 11 (“If the government
does not file a reply, the Court will interpret that as an affirmative decision to stand on its
December 14, 2020 Motion to Dismiss.”). Because Plaintiff has not stated proper grounds for
default judgment, the motion is denied. The government need not respond to the motion.
V. CONCLUSION
For the reasons stated above, Defendant’s Motion to Dismiss is GRANTED.
Accordingly, Plaintiff’s Complaint is DISMISSED without prejudice. Plaintiff’s Motion for
Default Judgment is DENIED. The Clerk of Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
s/ Thompson M. Dietz
THOMPSON M. DIETZ, Judge