govinfo:USCOURTS-flsd-9_23-cv-80008-0

UNITED STATES DISTRICT COURT 
SOUTHERN DISTRICT OF FLORIDA 
 
CASE NO. 23-80008-CIV-MARRA/REINHART 
 
REDOAK COMMUNICATIONS, INC., 
f/k/a REDOAK GROUP, INC., a Florida 
corporation, 
 
Plaintiff, 
 
vs. 
ADMINISTRATOR of the ESTATE of  
WILLIAM N. OLSEN, et. al., 
Defendants. 
_____________________________________/ 
 
OPINION AND ORDER 
 This cause is before the Court upon Defendant Estate of Walter Y. Olsen’s Motion to 
Dismiss First Amended Complaint and/or for a More Definite Statement Pursuant to Fed. R. Civ. 
P. 8, 12(b)(2), 12(b)(3), 12(b)(6) and 12(e) (DE 247). The Motion is fully briefed and ripe for 
review. The Court has carefully considered the Motion and is otherwise fully advised in the 
premises. 
I. Background 
 On June 29, 2024, Plaintiff Redoak Communications, Inc. (“Plaintiff” “Redoak”) filed a 
First Amended Complaint (“FAC”) (DE 215) against Defendants Jared L. Masters (“Masters”), 
Frolic Pictures, LLC (“Frolic”), David DeFalco (“DeFalco”), AMC Networks Inc. (“AMC”), 
Digital Store LLC (“Digital”), IFC Entertainment Holdings LLC (“IFC”), All Channel Works, 
Inc. (“All Channel”), Estate of William N. Olson (“WNO”) and the Estate of Walter Y. Olsen 
(“WYO”).1  The FAC brings three counts: Direct Copyright Infringement (count one); 
 
1 The FAC also brings claims against ten Doe Defendants. (FAC ¶ 25.) 
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Contributory Copyright Infringement (count two) and Conversion (count three) relating to a 
motion picture entitled Just Before Dawn a/k/a The Last Ritual (the “Work”). (Compl. ¶ 1.)  
 Defendant WYO brings a motion to dismiss the FAC on the following grounds: (1) it is 
an improper shotgun pleading because it incorporates by reference all previous allegations and 
asserts multiple claims against multiple defendants without specifying which defendants are 
responsible for which act or omission; (2) the Court lacks personal jurisdiction over WYO and 
venue in this district is improper; (3) the FAC fails to state a claim for copyright infringement, 
contributory infringement and conversion. 
 Plaintiff responds that (1) it does not challenge WYO’s argument that the FAC is a 
shotgun pleading and states it will remedy those pleading deficiencies (2) it does not assert 
general jurisdiction over WYO but does assert specific jurisdiction; (3) venue is proper because 
WYO is subject to this Court’s personal jurisdiction and (4) the facts adequately support the 
claims pled in the FAC.  
 In reply, Defendant WYO contends that Plaintiff has not complied with Local Rule 
5.1(a)(4) when it filed a response that was single spaced. Defendant WYO states that Plaintiff’s 
response improperly relied upon 15 exhibits without seeking judicial notice.  Even assuming the 
Court took the exhibits under consideration, those exhibits do not show that Defendant WYO 
had minimum contacts with Florida.  Next, Defendant states that the additional factual averments 
made by Plaintiff in its response are not pled in the FAC. With respect to the conversion claim, 
Defendant WYO states that Plaintiff concedes that a pre-litigation demand for return of the 
property was never made on Defendant WYO.  
  
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II. Discussion 
A. Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue 
  The Court must first address Defendant WYO’s argument that the Court does not possess 
personal jurisdiction over it. See Posner v. Essex Ins. Co., Ltd., 178 F.3d 1209, 1214 n.6 (11th 
Cir. 1999) (“a court without personal jurisdiction is powerless to take further action.”). The Court 
finds that Defendant WYO waived the issue of personal jurisdiction and improper venue when 
Defendant Walter Y. Olsen filed an answer in this case.   
  Mr. Olsen, proceeding pro se, filed an answer on April 13, 2023. (DE 112.)  That answer 
stated: 
I am Walter Y. Olsen. I have been named as a defendant in this action. I am 
gravely ill and cannot afford legal counsel at this time. I have asked my caretaker 
to assist me in submitting this answer to the Court. 
 
I deny any allegation that accuses me of wrongdoing. Otherwise, I deny that I 
have sufficient information to respond to the other allegations of the Complaint. 
 
Other defendants may have stated defenses. I would like to incorporate those 
defenses as my own. 
 
(DE 112.) 
 Plaintiff then moved for an order to require Mr. Olsen to file a more complete answer. 
(DE 113.)  Mr. Olsen responded, “I am Walter Y. Olsen. I am a defendant in this action. At this 
time, I am physically unable to do more than file the Answer I previously mailed to the Court. I 
incorporate my answer in response to plaintiff’s motion.” (DE 126.)  The Court granted 
Plaintiff’s motion and directed Mr. Olsen to file an amended answer by June 2, 2023, consistent 
with Rule 8(b) of the Federal Rules of Civil Procedure.2  (DE 129.)  Plaintiff filed a suggestion 
 
2 The Clerk mistakenly entered a default against Mr. Olsen (DE 139), which the Court vacated (DE 152) as 
erroneous. In so doing, the Court noted that it did not strike Mr. Olsen’s answer and that Mr. Olsen a ppeared in the 
case. (DE 152 at 2.)  
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of death of Mr. Olsen on June 12, 2023. (DE 142.) On April 1, 2024, the Court granted the 
motion to substitute Bethany Vota as the personal representative of Defendant WYO’s estate. 
(DE 208.) 
Lack of personal jurisdiction and improper venue are waivable defenses. Palmer v. 
Braun, 376 F.3d 1254, 1259 (11th Cir. 2004); Lipofsky v. New York State Workers Compensation 
Bd., 861 F.2d 1257, 1258 (11th Cir. 1988); see Fed. R. Civ. P. 12(g) & (h) (stating that a party 
who fails to object to personal jurisdiction or improper venue in the first of either his or her 
answer or Rule 12 motion waives the objection). A defendant waives these defenses once that 
defendant enters an appearance. Baragona v. Kuwait Gulf Link Transp. Co., 594 F.3d 852, 854 
(11th Cir. 2010). 
Here, Mr. Olsen waived the defenses of personal jurisdiction and improper venue by 
filing an answer. Defendant WYO Estate, as a substituted party, “step[ped] into the same 
position” as Mr. Olsen. Carrizosa v. Chiquita Brands Int'l, Inc., 47 F.4th 1278, 1337 (11th Cir. 
2022). The Court rejects Defendant WYO’s argument that Mr. Olsen did not have an opportunity 
to challenge personal jurisdiction because he died before the June 2, 2023 deadline for filing an 
amended answer. (Reply at 7.)  Indeed, the Court directed Mr. Olsen to file an amended answer. 
The Court did not strike Mr. Olsen’s original answer.  By filing an answer and not raising the 
defenses of personal jurisdiction or improper venue in his answer or by motion, Mr. Olsen 
waived these defenses.  
For this reason, the Court denies the motion to dismiss for lack of personal jurisdiction 
and improper venue.  
  
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B. Motion to Dismiss pursuant to Rule 12(b)(6) and Motion for a More Definite 
Statement pursuant to Rule 12(e) 
 
Rule 8(a)(2) of the Federal Rules of Civil Procedure requires “a short and plain statement 
of the claim showing that the pleader is entitled to relief.”  Fed. R. Civ. P. 8(a)(2). The Supreme 
Court has held that “[w]hile a complaint attacked by a Rule 12(b)(6) motion to dismiss does not 
need detailed factual allegations, a plaintiff's obligation to provide the ‘grounds’ of his 
‘entitlement to relief’ requires more than labels and conclusions, and a formulaic recitation of the 
elements of a cause of action will not do. Factual allegations must be enough to raise a right to 
relief above the speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) 
(internal citations omitted).   
"To survive a motion to dismiss, 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, 129 S. 
Ct. 1937, 1949 (2009) (quotations and citations omitted). "A claim has facial plausibility when 
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the 
defendant is liable for the misconduct alleged."  Id.  Thus, "only a complaint that states a 
plausible claim for relief survives a motion to dismiss."  Id. at 1950.  When considering a motion 
to dismiss, the Court must accept all of the plaintiff's allegations as true in determining whether a 
plaintiff has stated a claim for which relief could be granted.   
Rule 12(e) permits a party to move for a “more definite statement of a pleading to which 
a responsive pleading is allowed but which is so vague or ambiguous that the party cannot 
reasonably prepare a response.” Fed. R. Civ. P. 12(e). If a pleading “fails to specify the 
allegations in a manner that provides sufficient notice” or does not contain enough information to 
allow a responsive pleading to be framed, the proper motion to be filed is a motion for a more 
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definite statement. Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002); Gaddy v. Stihl Inc., 
No. 3:21-CV-1141-BJD-JBT, 2022 WL 22585391, at *2 (M.D. Fla. Oct. 17, 2022).   
Courts typically grant motions under Rule 12(e) for “shotgun” pleadings, in which it is 
“virtually impossible to know which allegations of fact are intended to support which claim(s) 
for relief.” Anderson v. District Bd. of Tr. of Cent. Florida Cmty Coll., 77 F.3d 364, 366 (11th 
Cir. 1996). Plaintiff has the burden to provide defendant with a “short and plain statement of the 
claim.” Fed. R. Civ. P. 8(a)(2). 
The Court begins its discussion by noting that Plaintiff concedes that the FAC constitutes 
a shotgun pleading and states that it will amend the FAC to identify which claims apply to which 
Defendants and to remedy the incorporation clauses in the FAC. (Resp. at 12-13.)  The Court 
grants leave to amend to remedy these pleading deficiencies.  
The direct copyright infringement claim must also be amended. To succeed on a claim of 
copyright infringement, a plaintiff must prove “(1) ownership of a valid copyright, and (2) 
copying of constituent elements of the work that are original.” Compulife Software Inc. v. 
Newman, 959 F.3d 1288, 1301 (11th Cir. 2020).  Defendant WYO does not challenge the first 
element.  The Court, however, agrees that the facts relating to the second element of the direct 
copyright claim are unclear and confusing.  For example, paragraph 75 of the FAC states, 
“Defendants’ WNO’s, WYO and/or DeFalco’s act(s) of entering into agreements with All 
Channel and Kino following the expiration of the Code Red License, constitutes Copyright 
Infringement.”  (FAC ¶ 75.)  Plaintiff must take care to identify each defendant’s specific act or 
acts that demonstrate the alleged copying and should not use “and/or” in making these 
allegations. Instead, the amended pleading must specify which defendant entered into 
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agreements and with which entity.  Furthermore, Plaintiff must explain the agreements and how 
these agreements demonstrate that Defendant copied and distributed the work.  
 Next, the Court discusses the claim for contributory infringement.  To establish a prima 
facie case of contributory infringement, a plaintiff must establish “(1) third-party direct 
infringement, (2) that the defendant had knowledge of the third-party direct infringement and (3) 
that the defendant intentionally induced, encouraged, or materially contributed to the third-party 
direct infringement.” Diaz v. Edi Korta, LLC, No. 24-CV-20522, 2024 WL 3425710, at *6 (S.D. 
Fla. July 15, 2024), report and recommendation adopted sub nom. Baloa Diaz v. Edi Korta, 
LLC, No. 1:24-CV-20522, 2024 WL 3636641 (S.D. Fla. Aug. 2, 2024) (brackets and ellipses 
omitted); see also Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 
(2005) (“one infringes contributorily by intentionally inducing or encouraging direct 
infringement.”) 
 This claim is pled in a barebones fashion.  The claim merely states that: 
WNO, WYO, Masters, Frolic, DeFalco [,] AMC, IFC, Digital and/or All Channel 
induced, caused and materially contributed to the infringing act of others by falsely 
and fraudulently claiming ownership rights, and encouraging, inducing, allowing 
and assisting others to district the Work. 
 
WNO, WYO, Masters, Frolic, DeFalco[,] AMC, IFC, Digital and/or All Channel 
had or should have had knowledge of the infringing acts relating to the Work. 
 
The acts and conduct of WNO, WYO, Mastes, Frolic, AMC, IFC, Digital, All 
Channel and/or DeFalco as alleged above in this Complaint, constitute contributory 
Copyright infringement. 
 
(FAC ¶ ¶90-92.)  
 These allegations do nothing more than offer “labels and conclusions,” “naked 
assertions,” and “a formulaic recitation of the elements of a cause of action.”  Microsoft Corp. v. 
Guirguis, No. 20-CV-24514, 2022 WL 1664181, at *2 (S.D. Fla. Mar. 30, 2022) (brackets 
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omitted).  For this reason, the claim must be re-pled. With respect to Defendant WYO, the 
amended pleading must show how WYO contributed to the infringing acts and how WYO had or 
should have had knowledge of the infringing act.3  
 With respect to the conversion claim, Defendant WYO seeks dismissal of this claim 
because it is inadequately pled, no demand and refusal was made, and it is preempted by 
Copyright law.  Before discussing these arguments, the Court sets forth the elements of 
conversion in Florida: (1) an act of dominion wrongfully asserted; (2) over another's property; 
and (3) inconsistent with his ownership therein. Nutradose Labs, LLC v. Bio Dose Pharma, LLC, 
710 F. Supp. 3d 1200, 1231 (S.D. Fla. 2024); Fairmarkit, Inc. v. Whaley, No. 3:22-CV-5067-
TKW-HTC, 2023 WL 2924462, at *2 (N.D. Fla. Feb. 6, 2023).  Before a conversion can occur, 
“a person who has a right to possession of property demands its return and the demand is not or 
cannot be met.” Shelby Mut. Ins. Co. of Shelby, Ohio v. Crain Press, Inc., 481 So. 2d 501, 503 
(Fla. Dist. Ct. App. 1985).  That stated, “a demand and refusal are unnecessary where it would be 
futile and the act preventing a return results in the depriving of possession and, thus, equates to a 
conversion.” Id.  
 The Court disagrees with Defendant WYO that it is unclear what property is claimed to 
have been converted. While the facts alleged in the conversion count could be clearer, reading 
the FAC as a whole, allows Defendant to determine that it is the Work that has allegedly been 
converted.  Defendant, however, is correct that the FAC does not address the issue of a pre-
litigation demand for the return of property on Defendant WYO (or any defendant).  Once again, 
Plaintiff relies on facts not pled in the FAC and attaches exhibits in support of demand of return 
 
3 To the extent Plaintiff supplies new facts in its response to the motion to dismiss, these facts cannot be considered 
to defeat the motion to dismiss.  See Gil v. Winn Dixie Stores, Inc., 242 F. Supp. 3d 1315, 1316 n.1 (S.D. Fla. 2017); 
Erb v. Advantage Sales & Mktg. LLC, No. 6:11-CV-2629-SLB, 2012 WL 3260446, at *3 (N.D. Ala. Aug. 3, 2012).  
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of property. Plaintiff must amend the FAC to describe the demand for the return of the property 
or the futility of such a demand.  
Lastly, Plaintiff does not challenge Defendant WYO’s argument that the conversion 
claims must be separated from the copyright claim.  Instead, Plaintiff references various facts, 
not alleged in the FAC, that support a finding that the claims are separate.  Once again, these 
facts are not pled in the FAC and the Court cannot consider these arguments. For these reasons, 
Plaintiff is granted leave to amend the conversion claim. 
 III.  Conclusion4 
 Accordingly, it is hereby ORDERED AND ADJUDGED that Defendant Estate of 
Walter Y. Olsen’s Motion to Dismiss First Amended Complaint and/or for a More Definite 
Statement Pursuant to Fed. R. Civ. P. 8, 12(b)(2), 12(b)(3), 12(b)(6) and 12(e) (DE 247) is 
DENIED IN PART AND GRANTED IN PART.  The motion to dismiss for lack of personal 
jurisdiction and improper venue is DENIED. The motion to dismiss for failure to state a claim 
and a more definite statement is GRANTED.  Plaintiff is granted leave to amend the FAC 
consistent with this Order within 14 days of the date of entry of this Order.  
 DONE AND ORDERED in Chambers at West Palm Beach, Palm Beach County, 
Florida, this 29th  day of October, 2024. 
 
KENNETH A. MARRA 
United States District Judge 
 
 
4 The Court admonishes Plaintiff for failure to comply with the Local Rules of the Southern District of Florida. The 
Response filed by Plaintiff violated Local Rule 5.1(a)(4) by using single-spaced lines. This is not the first instance of 
Plaintiff failing to comply with the Local Rules. See, e.g., DE 252 (striking summary judgment for failure to comply 
with the Local Rules). The Court directs Plaintiff to comply with the Local Rules or face more serious 
consequences. 
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