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Brooks-Ngwenya v. Bart Petersons' Mind Trust

United States District Court, N.D. Indiana, Fort Wayne Division

May 22, 2017


          OPINION & ORDER


         This is one of many cases brought by Angela Brooks-Ngwenya, alleging infringement of her copyright on materials she developed for the Transitioning into Responsible Students (TIRS) educational program.[1] The target this time is Bart Petersons' [sic] Mind Trust which has moved to dismiss on grounds that the amended complaint does not state a plausible claim for relief. (DE 99.) Brooks-Ngwenya has filed two motions for judgment on the pleadings and a motion for a preliminary injunction. (See DE 91; DE 102; DE 107.) For the reasons below, the defendant's motion to dismiss is granted, and the plaintiff's motions are denied.


         The amended complaint makes a number of allegations about individuals and companies that have never been defendants in this matter, yet has very little to say about the Mind Trust. (See DE 54.) The sole mention of the Mind Trust by name is the assertion that in “2006, Ex-Mayor Bart Peterson established the Mind Trust and is currently promoting TIRS to for-profit entrepreneurs.” (DE 54 at 3.) Giving the amended complaint the most generous reading I can, it arguably alleges the following claims: (1) contributory/secondary infringement by the Mind Trust; (2) intentional or negligent infliction of emotional distress by Bart Peterson and the Mind Trust; and (3) breach of contract by Indianapolis Public Schools. (Id. at 1-4, 6.)

         The Mind Trust has moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (DE 99.) To survive a 12(b)(6) motion, “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, 663 (2009) (internal quotation marks and citations omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). I must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff, but I am not required to accept “threadbare recitals of a cause of action's elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Because Brooks-Ngwenya is representing herself, I must construe her complaint liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).

         Contributory/Secondary Infringement

         To state a claim of contributory infringement, a complaint must allege that: (1) a third party infringed the plaintiff's registered copyright; (2) the defendant knew about that infringement; and (3) the defendant materially contributed to it. Monotype Imaging, Inc. v. Bitstream, Inc., 376 F.Supp.2d 877, 883 (N.D. Ill. 2005). The amended complaint here alleges none of these elements. Brooks-Ngwenya alleges that Bart Peterson used her program to create his own educational program, which was then implemented at a charter school. (See DE 54 at 2.) But this falls far short of what's required to show infringement because there is no allegation that Peterson copied the plaintiff's text or used it to create derivative works. See Janky v. Lake Cty. Convention & Visitors Bureau, 576 F.3d 356, 361 (7th Cir. 2009) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)). As the Seventh Circuit explained in a similar case brought by the plaintiff:

Copyright protection does not extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery, regardless of the form in which it is described, explained, illustrated, or embodied in such work. It is not the idea that is protected, but rather the original expression of the idea.

Brooks-Ngwenya v. Indy. Pub. Schs., 564 F.3d 804, 808 (7th Cir. 2009) (internal quotation marks and citations omitted); accord See Pivot Point Intern., Inc. v. Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir. 2004) (stating that copyrights protect “the particularized expression of an idea”).

         Nor does Brooks-Ngwenya's claim in her response brief that Peterson “copied the language” of her educational program cure this shortcoming. (DE 101 at 2; see also DE 1-1; DE 1-3 (directing the court's attention to summaries that plaintiff believes show structural similarities between her and Peterson's programs).) To begin with, a complaint cannot be amended by a brief opposing a motion to dismiss. Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Second, adding the words “copied the language” to the amended complaint would amount to adding a legal conclusion without supporting factual allegations of similarities between the TIRS text and any written materials Peterson wrote. The amended complaint must allege facts suggesting “that the two works share enough unique features to give rise to a breach of the duty not to copy another's work[, ]” and it simply doesn't do that. See Peters v. West, 692 F.3d 629, 633 (7th Cir. 2012).

         The amended complaint also fails to allege that the Mind Trust knew about or materially contributed to infringement by Peterson. (See generally DE 54 at 2-3.) Indeed, most if not all of Peterson's allegedly infringing conduct took place prior to the creation of the Mind Trust in 2006, so it's hard to see how the Mind Trust could have been involved.

         For all of these reasons, the amended complaint does not state a plausible claim of contributory infringement, and Count One must be dismissed.

         “Wrongful” Infliction of Emotional Distress

         I'm not entirely sure that Brooks-Ngwenya meant to allege this count against the Mind Trust. The claim incorporates by reference allegations against Bart Peterson and the National ...

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