Johnson v. New Destiny Christian Center Church, Inc. et al

Filing 30

ORDER granting in part and denying in part 11 motion to dismiss. On or before Friday, September 8, 2017, Plaintiff may file an amended complaint. Signed by Judge Roy B. Dalton, Jr. on 8/25/2017. (VMF)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
SHIRLEY JN JOHNSON,
Plaintiff,
v.

Case No. 6:17-cv-710-Orl-37GJK

NEW DESTINY CHRISTIAN CENTER
CHURCH, INC.; and PAULA
MICHELLE WHITE,
Defendants.
ORDER
In the present motion, Defendants move to dismiss Plaintiff’s Complaint for
failure to state a claim upon which relief may be granted. (Doc. 11 (“MTD”).) Plaintiff
responded to the MTD on June 7, 2017. (Doc. 20 (“Response”).) For the reasons set forth
below, the Court finds that the MTD is due be granted in part and denied in part.
I.

BACKGROUND

This case arises from: (1) a copyright infringement action that Defendant Paula
White Ministries (“PWM”) initiated against Plaintiff Shirley Jn Johnson (“Johnson”)
more than three years ago 1; and (2) a derivative malicious prosecution action that Johnson
initiated against Paula Michelle White (“Ms. White”), Paula Michelle Ministries, Inc.
(“PMM”), Defendant New Destiny Christian Center Church, Inc. (“New Destiny”), and

See Paula White Ministries
(“Copyright Action”), Doc. 1.
1

v.

Johnson,

Case No. 6:14-cv-497-GAP-DAB

Resurrection Life THC, Inc. in 2015. 2
A.

Copyright Action

In the Copyright Action, PWM described itself as “a global ministry guided by the
God-inspired vision of Paula White[,] who founded it with a strong desire to see lives
transformed for the better through relationship with God.” Copyright Act, Doc. 1, ¶ 1.
PWM alleged that it used the Internet, television, radio, literature, and public speaking
to communicate its message. Id. Its copyright infringement claims against Johnson were
based on allegations that “Johnson knowingly violated federal copyright laws by
copying, modifying, and displaying PMW’s original and creative works—photographs
and videos—on her website for financial gain and without permission or authorization
from PWM.” Johnson v. New Destiny Christian Ctr. Church, Inc., No. 6:15-cv-1698-ORL37GJK, 2017 WL 1093446, at *1 (M.D. Fla. Mar. 23, 2017) (citing the Copyright Action,
Doc. 1, ¶¶ 8, 10, 13). 3 Johnson, however, maintained that such allegations were asserted
maliciously and in retaliation for having exposed Paula White as a false preacher.
Copyright Action, Doc. 16, p. 9. Ultimately, U.S. District Judge Gregory A. Presnell
dismissed the case with prejudice, but “advised Johnson that, should she wish to pursue
affirmative relief against PWM for malicious prosecution, she could do so by filing a

See
Johnson
v.
New
Destiny
Christian
Center
Church,
Inc.,
Case No. 6:15-cv-1698-Orl-37GJK (“Malicious Prosecution Action”), Doc. 1.
3 The Undersigned previously described the lengthy relationship between the
parties in an Order addressing motions to dismiss and for contempt sanctions in the
Malicious Prosecution Action. As such, portions of the instant procedural history were
taken from that Order.
2

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separate complaint.” Johnson, 2017 WL 1093446, at *2 (citing Copyright Action, Doc. 40).
B.

Malicious Prosecution Action

Pursuant to that advice, Johnson filed an action for malicious prosecution
(“Malicious Prosecution Action”) six months later, see Johnson v. New Destiny Christian
Ctr. Church, Inc., Case No. 6:15-cv-1698-Orl-37GJK, Doc. 1, which was eventually assigned
to the Undersigned, Id., Doc. 5. It is still ongoing. In the ad damnum clause of her Third
Amended Complaint, “Johnson request[ed] economic, non-economic, and nominal
damages pursuant to 17 U.S.C. § 512(f).” Johnson, 2017 WL 1093446, at *4. She also alleged
that PMM and PWM “violated her rights under the First Amendment to the
U.S. Constitution by filing the Copyright Action and making numerous false copyright
infringement complaints to YouTube, which caused the removal of videos from her
channel.” Id. On March 23, 2017, the Court dismissed Johnson’s purported federal claims
under § 512(f) and the First Amendment without prejudice, but denied her leave to file a
fourth amended complaint due to the late stage of the proceedings and the Court’s belief
that Johnson had intended only to assert a claim for malicious prosecution (“March 23
Dismissal Order”). Id. at *11. Crucial to the Court’s determination was the fact that:
(1) the operative pleading was titled “Plaintiff’s Third Amended Complaint for Malicious
Prosecution”; (2) the sole count was titled “Malicious Prosecution”; and (3) the
introductory paragraph of the complaint stated only that she was suing the defendants
for malicious prosecution. Id. at 5. The malicious prosecution claim remains pending in
that action.

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C.

Instant Action

Following the March 23 Dismissal Order, Johnson filed the instant action against
Defendants alleging claims for misrepresentation under § 512(f) and abuse of process.
(Doc. 1 ¶ 29 (“Complaint”).) Presently, Defendants have moved to dismiss the Complaint
pursuant to Rule 12(b)(6). (Doc. 11.) Johnson has responded (Doc. 20), and the matter is
ripe for the Court’s adjudication.
II.

LEGAL STANDARDS

A pleading must contain “a short and plain statement of the claim showing that
the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “[D]etailed factual allegations” are
not required, but “[a] pleading that offers ‘labels and conclusions’ or ‘a formulaic
recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Rather, “a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.’” Id. (quoting Twombly, 550 U.S. at 570). “A claim has facial
plausibility when the plaintiff pleads factual content that allows [a] court to draw the
reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678; see
also Bailey v. Wheeler, 843 F.3d 473, 480 (11th Cir. 2016).
Under Rule 12(b)(6), a party may request dismissal of a pleading that falls short of
these pleadings requirements. In resolving such motions, courts limit their consideration
to the face of the complaint, its attachments, “documents incorporated into the complaint
by reference, and matters of which a court may take judicial notice.” See Tellabs, Inc. v.

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Makor Issues & Rights, Ltd., 551 U.S. 308, 322–23 (2007); see also Hoefling v. City of Miami,
811 F.3d 1271, 1277 (11th Cir. 2016). Dismissal is warranted if, assuming the truth of the
factual allegations of the complaint in a plaintiff’s favor, there is a dispositive legal issue
which precludes relief. Neitzke v. Williams, 490 U.S. 319, 326 (1989).
III.
A.

ANALYSIS

Material Misrepresentation Claim Under 17 U.S.C. 512(f)

The Digital Millennium Copyright Act sets forth
a detailed process allowing a copyright owner who observes
infringing content on a website like YouTube to have the
content taken down. Under the statute, the copyright owner
must send a written communication to the service provider
identifying the offending video and asserting under penalty
of perjury that the sender is the copyright owner and has a
good faith belief that the video infringes the sender’s
copyright.
Big Cat Rescue Corp. v. Big Cat Rescue Entm’t Grp., No. 8:11-cv-2014-JDW-TBM,
2013 WL 12158980, at *10 (M.D. Fla. Jan. 15, 2013). In turn, subsection (f) “sets out a
private cause of action for anyone who is injured by a material representation that content
or activity is infringing when it is not.” Disney Enters., Inc. v. Hotfile Corp.,
No. 11-20427-CIV, 2013 WL 6336286, at *46 (S.D. Fla. Sept. 20, 2013). Specifically, this
subsection provides that:
[a]ny person who knowingly materially misrepresents under
this section that material or activity is infringing shall be liable
for any damages, including costs and attorneys’ fees, incurred
by the alleged infringer . . . who is injured by such
misrepresentation, as the result of the service provider
disabling access to the material or activity claimed to be

5

infringing, or in replacing the removed material or ceasing to
disable access to it.
17 U.S.C. § 512(f)(1).
Defendants first argue that the Complaint fails to set forth that they knowingly
made the purported misrepresentations. (Doc. 11, p. 5.) The term “knowingly” under
§ 512(f) means that a party “actually knew, should have known if it acted with reasonable
care or diligence, or would have had no substantial doubt had it been acting in good faith,
that it was making misrepresentations.” Online Policy Grp. v. Diebold, Inc.,
337 F. Supp. 2d 1195, 1204 (N.D. Cal. 2004) (citing Knowingly, BLACK'S LAW DICTIONARY
(8th ed. 2004)). Knowledge “may be alleged generally.” Curtis v. Shinsachi Pharm. Inc., 45
F. Supp. 3d 1190, 1199 (C.D. Cal. 2014) (quoting Fed. R. Civ. P. 9(b)).
Here, Johnson has presented facts sufficient for the Court to draw the reasonable
inference that Defendants knowingly misrepresented copyright infringement to
YouTube. Specifically, the verified Complaint avers that: (1) on multiple occasions,
PWM/New

Destiny

“willfully,

knowingly[,]

and

materially”

made

§ 512(f) misrepresentations to YouTube that Johnson’s videos were infringing PWM’s
copyrights (Doc. 1, ¶¶ 33, 37, 40, 46); (2) “PWM did not hold a valid copyright registration
or certificate to the content contained in [Johnson’s] videos at the time of the
misrepresentations” (id. ¶ 20); and (3) the material posted on Johnson’s YouTube channel
“was used lawfully in accordance with 17 U.S.C. § 107 of the Copyright Act”—the fair

6

use doctrine (id. ¶ 13, 20). 4 These allegations suffice to support a § 512(f) claim. See Curtis,
45 F. Supp. 3d at 1199 (finding that a § 512(f) claim was adequately pleaded where
plaintiff “repeatedly alleged that [d]efendants knew that the takedown notices contained
false

infringement

allegations”);

see

also

Lenz

v.

Universal

Music

Corp.,

572 F. Supp. 2d 1150, 1154–55 (N.D. Cal. 2008) (“An allegation that a copyright owner
acted in bad faith by issuing a takedown notice without proper consideration of the fair
use doctrine . . . is sufficient to state a misrepresentation claim pursuant to Section 512(f)
of the DMCA.”).
Defendants also argue that Johnson “should not be allowed to rely on allegations
against PWM in an attempt to hold . . . Defendants liable, without providing sufficient
factual allegations demonstrating . . . the relationship between . . . Defendants and PWM.”
(Doc. 11, p. 6.) Johnson, however, sufficiently describes Defendants’ relationship with
PWM. In particular, the Complaint provides that New Destiny operates under the
fictitious name PWM and that Ms. White is “President of the Board, a Director, President
and Senior Pastor of PWM/[New Destiny].” (Doc. 1, ¶¶ 7–8.) The case caption in the
Complaint also references these alleged relationship. (Id., p. 1.)
Finally, Defendants assert that Johnson has not properly plead the existence of an

In her response to the MTD, Johnson argues that, even if Defendants had held a
valid copyright at the time of the misrepresentations, they failed to consider the fair use
doctrine before issuing a takedown notice. (See Doc. 20, pp. 6–7.) Such a failure would
lend additional support to her § 512(f) claim. However, this allegation does not appear
on the face of the Complaint and, in assessing a motion to dismiss under Rule 12(b)(6),
the Court may only consider allegations actually made in the Complaint.
4

7

injury caused by the misrepresentations. (Doc. 11, pp. 6–8.) Injury is a critical element of
a § 512(f) claim. Hotfile Corp., 2013 WL 6336286, at *48. As such, Johnson must allege that
the purported misrepresentations proximately caused her damages. See id. (citing Lenz v.
Universal Music. Corp., No. C 07–3783 JF, 2010 WL 702466, at *10 (N.D. Cal. Feb. 25, 2010)).
In the Malicious Prosecution Action, the Court found that Johnson failed to state a § 512(f)
claim because “each factual allegation related to Johnson's damages stem[med] from the
prosecution of the Copyright Action rather than the removal of her videos from
YouTube.” Johnson, 2017 WL 1093446, at *5. Here, Johnson again asserts damages
stemming from prosecution of the Copyright Action in her Complaint, but she also cites
damages resulting from the termination of her YouTube channel. (Doc. 1, ¶¶ 50–51.)
Thus, Johnson has sufficiently pled the existence of an injury caused by the
misrepresentations. Her assertion that she was deprived of her First Amendment rights,
however, warrants a different outcome.
B.

First Amendment Injuries

Nestled in Johnson’s misrepresentation and abuse of process claims are allegations
that Defendants’ actions deprived her of her First Amendment rights to free speech.
(Doc. 1, ¶¶ 51, 62.) The First Amendment “prohibits Congress and the States from making
any law abridging the freedom of speech.” United Bhd. of Carpenters & Joiners of Am. Local
610 v. Scott, 463 U.S. 825, 831 (1983). As such, the First Amendment protects individuals
against government action, not against wrongs by individuals or private entities.” Johnson,
2017 WL 1093446, at *4. Nonetheless, in defending her purported First Amendment

8

injury, Johnson urges the Court to consider Defendants akin to public figures under the
New York Times standard for liability in a libel action by a public figure. (Doc. 20, pp. 13–
14.) That standard holds that a public figure is prohibited from recovering damages for a
defamatory falsehood unless he proves that the statement was made with actual malice.
See Curtis Pub. Co. v. Butts, 388 U.S. 130, 155 (1967).
Here, Johnson argues that her criticism of Defendants on her YouTube channel
constituted fair comment so presumably, in the absence of proof of actual malice,
Defendants could not properly sue her for copyright infringement. (See Doc. 20, pp. 13–
14.) Nonetheless, the Court declines to extend the New York Times standard to the alleged
deprivation of her First Amendment rights, as no one has asserted a libel claim. Thus, she
cannot recover this element of damages. The Court reiterates that, should Johnson seek
leave to amend her complaint, “any attempt to assert a First Amendment claim against
Defendants [will] be futile.” Johnson, 2017 WL 1093446, at *4.
C.

Abuse of Process

Plaintiff’s abuse of process claim is based on three occurrences: (1) Defendants’
initiation of the Copyright Action; (2) Defendants’ continuation of the Copyright Action
after process had issued; and (3) Defendant’s misuse of discovery tools in the Malicious
Prosecution Action. To state a claim for abuse of process, a plaintiff must allege three
elements:
‘(1) that the defendant made an illegal, improper, or perverted
use of process; (2) that the defendant had ulterior motives or
purposes in exercising such illegal, improper, or perverted
use of process; and (3) that, as a result of such action on the

9

part of the defendant, the plaintiff suffered damage.’
Duncanson v. SJ Wathen Bloomington LLC, No. 6:14-cv-704-ORL-40KRS, 2016 WL 7228743,
at *2 (M.D. Fla. June 24, 2016) (quoting S & I Invests. v. Payless Flea Market, Inc.,
36 So. 3d 909, 917 (Fla. 4th DCA 2010)). Abuse of process claims only encompass acts of
misuse after process is issued. Whitney Info. Network, Inc. v. Gagnon, 353 F. Supp. 2d 1208,
1212 (M.D. Fla. 2005) (citing Miami Herald Pub. Co., Div. of Knight-Ridder v. Ferre,
636 F. Supp. 970, 974–75 (S.D. Fla. 1985). Accordingly, to the extent that Johnson seeks
relief for Defendants’ actions in initiating the Copyright Action against her, Johnson does
not properly plead a cause of action for abuse of process. Instead, these allegations sound
in malicious prosecution. See Paez v. Mulvey, No. 15-20444-CIV, 2016 WL 6092597, at *17
(S.D. Fla. Oct. 19, 2016) (“A claim for malicious prosecution under Florida law is
concerned with maliciously causing process to issue, while abuse of process is concerned
with the improper use of process after it has been issued.” (quoting McMurray v. U-Haul
Co., 425 So. 2d 1208, 1209 (Fla. 4th DCA 1983))).
To the extent Johnson seeks relief for Defendants’ continuation of the Copyright
Action after process had issued—that is, using the action to procure the permanent
deletion of Johnson’s YouTube channel—Johnson has sufficiently plead a claim for abuse
of process. Notably, upon receiving information that the Copyright Action had been filed,
YouTube notified Johnson that it could not honor her counter-notification to have her
content reinstated. (Doc. 1-13, p. 1.) Johnson attached this notification to the Complaint.
(Id.) It can be reasonably inferred from this notification that Defendants were responsible

10

for informing YouTube of the lawsuit. Moreover, the Complaint avers that Defendants
continued the Copyright Action against Plaintiff with the “ulterior motive of using (or
misusing) the Judicial System to intimidate, punish, shame, harass[,] and attempt to
extort millions of dollars from [her].” (Doc. 1, ¶ 56.) As a result of these actions, Johnson
asserts that she suffered damages, including the termination of her YouTube channel. (Id.
¶ 62.) Such allegations are all that is required to assert an abuse of process claim.
Finally, to the extent that Johnson seeks relief for Defendants’ purported misuse
of discovery during the Malicious Prosecution Action, the claim warrants closer
examination. Johnson asserts that, during the Malicious Prosecution Action, Defendants
deposed her “for the improper purpose of obtaining [her] personal information, and to
harass or ‘irritate’ [her].” (Doc. 1, ¶ 58.) She claims this is evidenced by the fact that
“[n]inety-nine percent of the questions were irrelevant or barred by the doctrine of res
judicata.” (Id.) Johnson also alleges that Defendants “used the discovery process for the
improper purpose of obtaining [her] and her daughter’s personal information so that it
[could] be used at a later date for nefarious purposes.” (Id. ¶ 60.) To illustrate, Johnson
explains that Defendants filed a motion to compel her “to disclose her daughter’s
personal information under the pretense of noticing her [daughter] for deposition,” but
never contacted her daughter within the discovery period. (Id. ¶ 59.) As a result of
Defendants’ actions, Johnson alleges that she and her daughter “will forever be fearful
that one day their personal information will be used for [evil] purposes.” (Id. ¶ 64.)
Defendants counter that Johnson has failed to assert how their use of the discovery

11

process was wrongful. (Doc. 11, p. 10.) The Court agrees. To be sure, the Federal Rules of
Civil Procedure permit discovery of “any nonprivileged matter that is relevant to any
party's claim or defense and proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1).
Relevancy “has been construed broadly to encompass any matter that bears on, or that
reasonably could lead to other matter that could bear on, any issue that is or may be in
the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). As such, Defendants’
deposition of Johnson and request for personal information during the Malicious
Prosecution Action were within the scope of discovery. Because the Complaint fails to
explain how Defendants made improper use of the discovery process in the Malicious
Prosecution Action, it fails to state a claim for abuse of process on this ground. Cf. Ferre,
636 F. Supp. At 975 (“As plaintiffs’ complaint to the State Attorney, however malicious,
did not involve any improper use of the civil process it fails to state a claim for abuse of
process.”).
IV.

CONCLUSION

Accordingly, it is hereby ORDERED AND ADJUDGED:
1.

Defendants Motion to Dismiss (Doc. 11) is GRANTED IN PART AND
DENIED IN PART.
a.

The Motion is GRANTED to the extent that: (i) Defendants seek
dismissal of any purported injury under the First Amendment; and
(ii) Johnson’s abuse of process claim seeks relief against Defendants
for initiating the Copyright Action and for misusing discovery

12

during the Malicious Prosecution Action.
b.
2.

In all other respects, the Motion is DENIED.

On or before Friday, September 8, 2017, Plaintiff may file an amended
complaint that either remedies or removes the deficient allegations
identified in this Order. Defendants will then have fourteen days to
respond to the amended pleading.

DONE AND ORDERED in Chambers in Orlando, Florida, on August 25, 2017.

Copies:
Counsel of Record
Pro Se Party

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