Filed: Feb. 04, 2010
Latest Update: Mar. 28, 2017
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1495 CYNTHIA DONN TESSLER, Plaintiff - Appellant, v. NATIONAL BROADCASTING COMPANY, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:08-cv-00234-RAJ-TEM) Submitted: December 16, 2009 Decided: February 4, 2010 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 09-1495 CYNTHIA DONN TESSLER, Plaintiff - Appellant, v. NATIONAL BROADCASTING COMPANY, INCORPORATED, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Raymond A. Jackson, District Judge. (2:08-cv-00234-RAJ-TEM) Submitted: December 16, 2009 Decided: February 4, 2010 Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges. Affirmed by unpublished per curiam opinion...
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 09-1495
CYNTHIA DONN TESSLER,
Plaintiff - Appellant,
v.
NATIONAL BROADCASTING COMPANY, INCORPORATED,
Defendant - Appellee.
Appeal from the United States District Court for the Eastern
District of Virginia, at Norfolk. Raymond A. Jackson, District
Judge. (2:08-cv-00234-RAJ-TEM)
Submitted: December 16, 2009 Decided: February 4, 2010
Before NIEMEYER, MICHAEL, and GREGORY, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Duncan G. Byers, DUNCAN G. BYERS, P.C., Norfolk, Virginia, for
Appellant. Stephen E. Noona, R. Johan Conrod, Jr., KAUFMAN &
CANOLES, Norfolk, Virginia, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Cynthia Donn Tessler appeals the district court’s
order dismissing her complaint against National Broadcasting
Company, Incorporated (“NBC”) for failure to state a claim, Fed.
R. Civ. P. 12(b)(6). Tessler, an independent producer residing
in Norfolk, Virginia, developed a program entitled “Parenting
Your Parent,” which relates to issues involving adult children
caring for their elderly parents. Tessler asserts that an NBC
Nightly News segment entitled “Trading Places” directly copied,
without authorization, Tessler’s original “Parenting Your
Parent” materials. In her complaint, Tessler alleged copyright
infringement (“Count I”), breach of contract (“Count II”),
breach of implied contract (“Count III”), and conversion (“Count
IV”). On appeal, Tessler challenges only the district court’s
disposition of Counts I and II. For the following reasons, we
affirm.
This court reviews de novo a district court’s
dismissal pursuant to Fed. R. Civ. P. 12(b)(6). Giarratano v.
Johnson, 521 F.3d 298, 302 (4th Cir. 2008). “The purpose of a
Rule 12(b)(6) motion is to test the sufficiency of a complaint
. . . .” Edwards v. City of Goldsboro,
178 F.3d 231, 243 (4th
Cir. 1999). To survive a Rule 12(b)(6) motion, a plaintiff must
“‘give the defendant fair notice of what the claim is and the
grounds upon which it rests.’” Erickson v. Pardus,
551 U.S. 89,
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93 (2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (alterations omitted). The facts alleged must “raise a
right to relief above the speculative level,” and the complaint
must contain “enough facts to state a claim to relief that is
plausible on its face.” Twombly, 550 U.S. at 555, 570.
The district court properly considered material
contained on MSNBC.com in dismissing Count I because the website
was referenced in Tessler’s complaint. A court may consider a
document that the defendant attaches to its motion to dismiss if
the document “was integral to and explicitly relied on in the
complaint and if the plaintiffs do not challenge its
authenticity.” Am. Chiropractic Ass’n v. Trigon Healthcare,
Inc., 367 F.3d 212, 234 (4th Cir. 2004) (internal quotation
marks and alterations omitted). Nor did the district court
abuse its discretion in rejecting Tessler’s challenge to the
authenticity of the material contained on the website. See
General Elec. Co. v. Joiner,
522 U.S. 136, 141 (1997) (holding a
district court’s evidentiary rulings are reviewed for abuse of
discretion).
We further find that the district court properly
dismissed Count II. A federal court sitting in diversity must
apply the choice of law rules of the forum state. CACI Int’l,
Inc. v. St. Paul Fire & Marine Ins. Co., 566 F.3d 150, 154 (4th
Cir. 2009). Under state law, “Virginia adheres to the use of
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traditional rules applicable to conflicts of laws[:] . . .
questions of substantive law are governed by the law of the
place of the transaction or the place where the right is
acquired.” Frye v. Commonwealth, 345 S.E.2d 267, 272 (Va. 1986)
(citations omitted).
As the district court noted, “[i]t is not clear where
the offer was made; however, both New York and Virginia law
essentially require the same elements for a legally enforceable
contract.” To establish a breach of contract claim, a plaintiff
must prove: “(1) a legally enforceable obligation of [the]
defendant to [the] plaintiff; (2) the defendant’s violation or
breach of that obligation; and (3) injury or damage to the
plaintiff caused by the breach of obligation.” Filak v. George,
594 S.E.2d 610, 614 (Va. 2004); see also Clearmont Prop., LLC v.
Eisner,
872 N.Y.S.2d 725, 728 (N.Y. App. Div. 2009). In order
to prove a contract, a party must prove an offer and acceptance
of that offer. Snyder-Falkinham v. Stockburger,
457 S.E.2d 36,
39 (Va. 1995); Kowalchuck v. Stroup,
873 N.Y.S.2d 43, 46 (N.Y.
App. Div. 2009). Because Tessler failed to allege that she
accepted NBC’s offer to use her materials, the district court
correctly dismissed Count II.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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