APPENDIX A
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`APPENDIX A
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`22
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`

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`FILED: February 18, 2025
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`No. 24-1803
`(3:24-cv-00114-DJN)
`
`ZACHARY C. CROUCH
`
`Plaintiff - Appellant
`
`v.
`BRADEN GODDARD; ZEYUN WU
`Defendants - Appellees
`
`and
`
`BEN IMPSON; KASHMINDER MEHTA
`
`Defendants
`
`JUDGMENT
`
`In accordance with the decision of this court, the judgment of the district court is
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`affirmed.
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`This judgment shall take effect upon issuance of this court's mandate in
`
`accordance with Fed. R, App. P, 41.
`
`/s/ NWAMAKA ANOWI, CLERK
`23
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`

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`UNPUBLISHED
`
`UNITED STATES COURT OF APPEALS
`FOR THE FOURTH CIRCUIT
`
`No. 24-1803
`
`ZACHARY C. CROUCH,
`
`Plaintiff - Appellant,
`
`v.
`
`BRADEN GODDARD; ZEYUN WU,
`
`Defendants - Appellees.
`
`and
`
`BEN IMPSON; KASHMINDER MEHTA,
`
`Defendants.
`
`Appeal from the United States District Court for the Eastern District of Virginia, at
`Richmond. David J. Novak, District Judge. (3:24-cv-00114-DJN)
`
`Submitted: January 31, 2025
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`Decided: February 18, 2025
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`Before KING and AGEE, Circuit Judges, and TRAXLER, Senior Circuit Judge.
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`Affirmed by unpublished per curiam opinion.
`
`Zachary C. Crouch, Appellant Pro Se.
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`Unpublished opinions are not binding precedent in this circuit.
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`

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`PER CURIAM:
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`Zachary C. Crouch appeals the district court’s order granting Defendants’ motion
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`to dismiss Crouch’s complaint as barred by Eleventh Amendment immunity and denying
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`his requested injunctive relief as unavailable under the requirements of the Copyright Act,
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`17 U.S.C. § § 101-810. We have reviewed the record and find no reversible error.
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`Accordingly, we affirm the district court’s order. Crouch v. Goodard, No. 3:24-cv-00114-
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`DJN (E.D. Va. July 9, 2024). We dispense with oral argument because the facts and legal
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`contentions are adequately presented in the materials before this court and argument would
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`not aid the decisional process.
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`AFFIRMED
`
`2 S'
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`

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`APPENDIX B
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`APPENDIX B
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`26
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 1 of 9 PagelD# 161
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`IN THE UNITED STATES DISTRICT COURT
`
`FOR THE EASTERN DISTRICT OF VIRGINIA
`
`Richmond Division
`
`ZACHARY CROUCH,
`Plaintiff,
`
`BRADEN GODDARD,
`ZEYUN WU,
`Defendants.
`
`Civil No. 3:24cvl 14 (DJN)
`
`MEMORANDUM ORDER
`(Granting Motion to Dismiss)
`
`This matter comes before the Court on Braden Goddards and Zeyun Wu’s (together,
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`“Defendants”) Motion to Dismiss for Lack of Jurisdiction, (ECF No. 26 (“Motion”)). There,
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`Defendants move the Court to dismiss Zachary Crouch’s (“Plaintiff’) Pro Se Third Amended
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`Complaint, (ECF No. 21 (“TAC”)), which alleges that Defendants violated copyright laws and
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`committed fraud by using Plaintiffs Ph.D. thesis data without his permission, on sovereign
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`immunity grounds. Defendants filed their Motion on June 3, 2024, along with a Roseboro
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`Notice, and Plaintiff failed to file a reply or otherwise pursue this action before June 24, 2024,
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`thus rendering it ripe for review. For the reasons that follow, the Court finds that Defendants,
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`who committed the alleged acts while in their capacity as professors at Virginia Commonwealth
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`University (“VCU”), are shielded by sovereign immunity. As such, the Court hereby GRANTS
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 2 of 9 PagelD# 162
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`Defendants’ Motion to Dismiss for Lack of Jurisdiction, (ECF No. 26), and DENIES WITHOUT
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`PREJUDICE1 Plaintiffs claims for damages and injunctive relief.
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`I. BACKGROUND
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`The facts of this case are straightforward. Plaintiff was a Ph.D. candidate at VCU who
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`worked alongside Defendants, both of whom are professors that at some point supervised and
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`worked with Plaintiff. (TAC at 2,
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`1-4.) While working toward his Ph.D., Plaintiff spent
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`considerable time developing his research, which included simulations and code for “MCNP.
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`(Id.) While it is unclear what “MCNP” stands for, as neither Plaintiff nor Defendants define the
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`term, it appears to refer to “Monte Carlo N-Particle Transport,” which is a research methodology
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`used in computational physics.2 In any case, Plaintiff contends that after spending significant
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`time developing this code, Defendants took it for their own personal gain. (Id. at 2,
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`2-4.) For
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`instance, Defendant Goddard took code and used it at academic conferences in Vienna, Austria
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`and Washington, D.C., while Defendant Wu used it to further the research of another student.
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`(Id. at 2,
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`2-5.) Plaintiff then alleges that, after Defendant Goddard “had all the simulations
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`and data he needed,” he fired Plaintiffin December of 2023. (Id.) Since his firing, Defendants
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`have apparently continued to use the data that Plaintiff generated during his time as a Ph.D.
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`candidate. (Id.)
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`For these acts, Plaintiff brings five counts against Defendants, though he does not
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`articulate whether the claims are brought against them in their official or personal capacities. In
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`A dismissal for any defect in subject matter jurisdiction “must be one without prejudice,
`1
`because a court that lacks jurisdiction has no power to adjudicate and dispose of a claim on the
`merits.” Ali v. Hogan, 26 F.4th 587, 600 (4th Cir. 2022).
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`Los Alamos National Laboratory, The MCNP Code (last visited June 27, 2024),
`2
`https://mcnp.lanl.gov/ [https://perma.cc/V2F5-W6B8].
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 3 of 9 PagelD# 163
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`Count I, he brings a copyright infringement claim under 17 U.S.C. §§ 101-810 against
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`Defendant Goddard for misappropriating the referenced data and using it at a research
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`conference in Vienna, Austria. {Id. at 6.) In Counts II and III, he brings the same claim against
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`Defendant Goddard, but for infringement that occurred at a conference in Washington, D.C. and
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`Knoxville, Tennessee, respectively. {Id.) Count IV constitutes a copyright claim against
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`Defendant Wu related to his conduct in advising a student to “steal MCNP input files from
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`Plaintiff.” {Id. at 7.) Count V, titled as “Fraud,” runs against both Defendants, and the Court
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`construes this to be a claim for common law fraud against both Defendants based on the
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`allegation that they stole the data produced by Plaintiff for his Ph.D. thesis. {Id.) As relief,
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`Plaintiff requests $1,600,000 in damages and an injunction against future misappropriation of
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`Plaintiffs MCNP input and output files, the data retrieved from those files and the manuscripts
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`that Plaintiff created based on that data. {Id.)
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`II. STANDARD OF REVIEW
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`At this stage, the Court accepts as true the facts set forth in the Third Amended
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`Complaint, (ECF No. 21). Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Moreover, at the
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`motion-to-dismiss stage, the Court may consider both the operative complaint, attachment to the
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`complaint, and those documents not attached to the complaint that “are integral to and explicitly
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`relied upon,” provided that their authenticity is not in dispute. Brown Goldstein Levy LLP v.
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`Fed. Ins. Co., 68 F.4th 169, 176 n.5 (4th Cir. 2023); Halscolt Megaro, P.A. v. McCollum, 66
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`F.4th 151, 157 (4th Cir. 2023).
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`In considering a motion to dismiss, the Court views the facts in the light most favorable
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`to the plaintiff. Mylan Lab ‘ys, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). Although the
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`law does not require “detailed factual allegations .. . [factual allegations must be enough to
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 4 of 9 PagelD# 164
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`raise a right to relief above the speculative level,” rendering the claim “plausible on its face
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`rather than merely “conceivable.” BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). Thus,
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`“naked assertions” of wrongdoing need not be accepted as true, unless they come with some
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`“factual enhancement” that makes those assertions “cross the line [from] possibility to
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`plausibility.” Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009). Moreover, when a
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`plaintiff is proceeding pro se, as is the case here, the Court construes the complaint liberally to
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`ensure that potentially meritorious claims survive challenge. Hughes v. Rowe, 449 U.S. 5, 9
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`(1980).
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`III. DISCUSSION
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`Defendants move the Court to dismiss the case under Federal Rule of Civil Procedure
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`12(b)(1), as they contend that sovereign immunity applies to both Defendants and thus divests
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`the Court of subject-matter jurisdiction. (Mot. at 3.) Sovereign immunity applies, according to
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`Defendants, because they constitute agents of VCU — a state agency for purposes of the
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`Eleventh Amendment — and thus, as agents of that agency, likewise stand entitled to the
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`protections of sovereign immunity. (Mot. at 4-5.) The Court begins its analysis by considering
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`whether sovereign immunity applies to this case, given that it only applies to officials when sued
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`in their official capacity. It then turns to considering whether an exception to sovereign
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`immunity applies in this matter. For the reasons that follow, the Court concludes that sovereign
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`immunity applies, as the face of the complaint demonstrates that Defendants have been sued in
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`their official capacity, and that no exception to sovereign immunity stands applicable here. As
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`such, the Court GRANTS Defendants’ Motion to Dismiss, (ECF No. 26).
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`I 30 I
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 5 of 9 PagelD# 165
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`A. Defendants Are Shielded by Sovereign Immunity
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`To be protected by sovereign immunity, Defendants must be agents of an entity that itself
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`has sovereign immunity, and they must be sued for actions taken in their official rather than
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`unofficial capacities. Lytle v. Griffith, 240 F.3d 404, 408 (4th Cir. 2001). For purposes of the
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`Eleventh Amendment, the Court has determined that VCU constitutes a state agency. Nofsinger
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`v. Virginia Commonwealth Uni., 2012 WL 2878608, at *12 (E.D. Va. July 13, 2012), aff d, 523
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`F. App’x 2014 (4th Cir. 2013); Herron v. Virginia Commonwealth Univ., 366 F. Supp. 2d 355,
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`363-64 (E.D. Va. 2004). Thus, the dispositive question becomes whether Defendants are being
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`sued in their official capacities as employees of VCU, as Plaintiff s TAC does not articulate in
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`what capacity he has brought suit against Defendants.
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`Here, Plaintiff does not delineate in what capacity he brings suit, as the TAC does not
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`reference either Defendant’s official or personal capacity, and he has failed to file a reply brief
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`that could clarify the TAC. “When a plaintiff does not allege capacity specifically, the court
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`must examine the nature of the plaintiffs claims, the relief sought, and the course of proceedings
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`to determine whether a state official is being sued in a personal capacity.” Biggs v. Meadows, 66
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`F.3d 56, 61 (4th Cir. 1995). Generally, three factors are considered in this analysis: (1) the
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`focus of the allegations; (2) the type of damages sought; and (3) the defenses asserted. Victors v.
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`Kronmiller, 553 F. Supp. 2d 533, 545 (D. Md. 2008). Thus, the Court is left to determine
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`whether this is an official or personal capacity suit with the information available on the face of
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`the TAC, while keeping in mind the deference afforded to pro se litigants. See White v. White,
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`886 F.2d 721, 722-23 (4th Cir. 1989) (holding that pro se complaints, however inartfully
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`pleaded, must be held to “less stringent standards than pleadings drafted by attorneys”).
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`I 31 I
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 6 of 9 PagelD# 166
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`The TAC indicates that Plaintiffs suit is one brought against Defendants in their official
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`capacity. First, the thrust of the TAC envisions an official capacity claim, as it references that
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`Defendants, in the course of their obligations as professors, took his research without his
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`permission. (TAC at 2,
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`2-6.) And after allegedly misappropriating Plaintiffs research, they
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`then apparently passed it off as their own at research conferences and to further the research of
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`other students that they supervised. (Id.) These acts fall squarely within Defendants’ obligations
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`as professors for VCU. In a pair of attached declarations, both Defendants note that they
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`“regularly attend industry conferences and conventions in [their] professional capacity,” (ECF
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`No. 27-1 at 2), and that any “supervision of Plaintiff and other Ph.D.. students enrolled at VCU”
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`was part of their obligations as a VCU professor and faculty member, (ECF No. 27-2 at 2).
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`However, the relief sought, which includes $1,600,000 in damages collectively and
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`injunctive relief, cuts toward finding that this was intended as a personal capacity suit. Because
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`sovereign immunity bars damages in an official capacity suit, the request for damages is
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`indicative of a personal capacity suit, as “it would have been illogical and futile for [Plaintiff] to
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`sue the defendants in their official capacities and to then request a form of relief that would
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`clearly be unavailable to him in such a suit.” Biggs, 66 F.3d at 61. Moreover, the request for
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`injunctive relief does not counsel otherwise. Logically, Plaintiff may have intended to bring an
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`official capacity suit only in this respect, as suits for injunctive relief against officials in their
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`officially capacity are “not treated as [an] action against the State,” and thus cannot be used
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`against Plaintiff to construe the damages claim as also being brought against Defendants in their
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`official capacity. Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 n. 10 (1989). The final
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`factor, however, weighs in Defendants’ favor, as they perceived this suit as one in their official
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`rather than personal capacity given that they have raised sovereign immunity as a defense.
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 7 of 9 PagelD# 167
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`Given that two of the three factors weigh toward finding that this represents an official­
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`capacity suit, the Court concludes that Plaintiff has sued Defendants in their official capacity.3
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`To be sure, the Court recognizes that Plaintiff proceeds pro se and the forgiving pleading
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`standards associated with that status, but this does not constitute a case where those standards
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`permit the case to proceed; even if Plaintiff had captioned this case against Defendants in their
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`personal capacity, the Court would still hold that this was in-fact an official-capacity suit.
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`AccordAmaran v. Virginia State Univ., 476 F. Supp. 2d 535, 541 (E.D. Va. 2007) (conferring
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`sovereign immunity on provost for actions taken in relation to his job); Dillow v. Va. Polytechnic
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`Inst. & State Univ., 2023 WL 2320765, at *22-23 (W.D. Va. Mar. 2, 2023) (same, for Virginia
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`Tech official sued for conduct undertaken in their roles as university administrators). This
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`conclusion derives from the fact that the alleged misappropriation was inextricably related to
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`Defendants’ official duties, an adverse judgment would in-effect run against the Commonwealth,
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`Defendants’ alleged misconduct was not meant to further interests distinct from the
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`Commonwealth’s and their conduct was not ultra vires. See Martin v. Wood, 772 F.3d 192 (4th
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`Cir. 2014) (articulating that when these factors are present, an individual-capacity suit should be
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`construed as an official-capacity suit). If this were not the case, the Eleventh Amendment would
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`become subservient to “elementary mechanics of captions and pleadings.” Lizzi v. Alexander,
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`255 F.3d 128, 137 (4th Cir. 2001).
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`3 Even if Plaintiff intended to bring a suit against Defendants in their personal capacity, it
`would be futile to grant leave to amend. As the Court reviews infra in Section MI.B, a
`prerequisite to a damages claim for copyright infringement is a determination from the Copyright
`Office that one holds a copyright. Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 586
`U.S. 296, 308 (2019). However, there exists no facts from which the Court could infer that
`Plaintiff holds a copyright in the at-issue work, and, therefore, he cannot plead a viable claim for
`damages even in the absence of sovereign immunity.
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`

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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 8 of 9 PagelD# 168
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`Thus, regardless of how generously the Court construes Plaintiff’s TAC, this suit
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`constitutes one brought against Defendants in their official capacity. Given that Defendants
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`constitute agents of VCU, this suit therefore constitutes a suit against VCU itself, which stands
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`protected by sovereign immunity as it has not waived those protections in this context, nor have
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`they been abrogated by Congress. Lytle v. Griffith, 240 F.3d 404,408 (4th Cir. 2001).
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`Accordingly, the Eleventh Amendment bars Plaintiff s claim for damages.
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`B. Plaintiff Is Not Entitled to Injunctive Relief
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`Plaintiff also brings a claim for forward-looking, injunctive relief, which is not barred by
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`sovereign immunity even when the suit is one brought against Defendants in their official
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`capacity. Ex Parte Young, 209 U.S. 123, 203-204 (1908). Here, Plaintiff moves the Court to
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`“restrain any further infringement upon the research Plaintiff worked on,” which the Court
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`construes to be a request to enjoin ongoing copyright infringement. (TAC at 7.)
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`The Copyright Act grants the Court broad authority to issue injunctive relief. Tattoo Art,
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`Inc. v. TAT Intern., LLC, 794 F. Supp. 2d 634, 661 (E.D. Va. 2011). However, a prerequisite to
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`bringing a claim under the Copyright Act, whether that be for damages or for injunctive relief, is
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`registration of that copyright. Fourth Est. Pub. Benefit Corp. v. Wall-Street.com, LLC, 586 U.S.
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`296, 308 (2019). To be sure, there are some exceptions to the registration requirement, such as
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`for works “consisting of sounds, images, or both.” 17 U.S.C. § 411(c). But Plaintiffs research
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`does not fall into this carveout, nor has he provided any indication that he has been granted or
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`denied a copyright from the Copyright Office. As such, the Court denies his claim for injunctive
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`relief, as 17 U.S.C. § 411(a) “requires owners to await action by the Register before filing suit
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`for infringement.” Fourth Est. Pub. Benefit Corp., 586 U.S. at 309.
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`I 34 I
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`Case 3:24-cv-00114-DJN Document 28 Filed 07/09/24 Page 9 of 9 PagelD# 169
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`IV. CONCLUSION
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`For the reasons staled above, the Court hereby GRANTS Defendants’ Motion to Dismiss.
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`(EOF No. 26). and DISMISSES WITHOUT PREJUDICE PlaintiIPs claims for damages and
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`injunctive relief.
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`Let the Clerk file a copy of this Order electronically and notify all counsel of record and
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`mail a copy to Plaintiff at his address of record.
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`It is so ORDERED.
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`Richmond, Virginia
`Date: July 9. 2024
`
`__________ /s/
`David J. Novak
`United States District Judge
`
`» 35-1
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`