Brooks-Ngwenya v. National Heritage Academies Inc

Filing 35

OPINION AND ORDER GRANTING 6 MOTION to Dismiss for Failure to State a Claim by Defendant National Heritage Academies Inc. Plaintiff Angela Brooks-Ngwenya's Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff GRANTED leave until 11/30/2016 to f ile an Amended Complaint that addresses the deficiencies identified in this Order. Plaintiff CAUTIONED that failure to do so may result in dismissal of this case with prejudice. Signed by Chief Judge Philip P Simon on 11/1/16. (cc: Angela Brooks-Ngwenya). (cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANGELA BROOKS-NGWENYA,

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Plaintiff,
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v.
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NATIONAL HERITAGE ACADEMIES, )
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Defendant.
)

Cause No. 1:16-cv-183

OPINION & ORDER
Angela Brooks-Ngwenya has two cases pending in this district that allege
copyright infringement of an educational model she developed in 2002 called
Transitioning into Responsible Students (TIRS).1 This case alleges National Heritage
Academies infringed her copyright by using an educational model that replicates TIRS.
(DE 1 at 2.) NHA moves to dismiss on grounds that Brooks-Ngwenya has failed to
allege that NHA copied or created derivative works from copyrighted text. (DE 6; DE
7.) For the reasons below, NHA’s motion to dismiss is granted.
Background
The facts alleged in the three-page complaint are sparse, but here’s what can be
pieced together from complaint (DE 1), plaintiff’s briefs2 (DE 11, DE 19), and the
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The other case is Brooks-Ngwenya v. The Mind Trust, No. 1:16-cv-193 (N.D.
Ind. June 6, 2016).
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Plaintiff filed a document titled “Motion to Submit Plaintiff’s Oral
Response and Documents in Support of ‘Please Do Not Dismiss This Case,” which
inaccurately shows The Mind Trust as the defendant, but references this matter’s case
number and refers to NHA’s motion to dismiss. (See DE 11.) The Mind Trust is the

hundreds of pages of supporting exhibits plaintiff filed (DE 1-1, DE 1-2, DE 11). In 2002
and 2003, Brooks-Ngwenya piloted “an academic behavior modification improvement
program for underperforming public schools and students of all nationalities” called
Transitioning Into Responsible Students (“TIRS”) at Gambold Middle School in
Indianapolis. (DE 1 at 3.) On May 26, 2006, she registered a copyright on a document
titled “Transitioning Into Responsible Students,” although it is unclear whether the
copyrighted text was the TIRS Pilot Program Manual or some other document. (Id. at 17;
see also id. at 13–98.) Subsequently, Bart Peterson, mayor of Indianapolis when TIRS was
piloted, created the Mayor-Sponsored Charter Schools (MSCS) educational model. (Id.
at 2.) Brooks-Ngwenya claims that MSCS is a replica of (or is at least derived from) TIRS
and that Peterson distributed it to schools and educational entities without her
permission. (DE 11 at 1; DE 1 at 2–3; DE 7 at 2.) Those entities included NHA, which
used the MSCS program at Andrew J. Brown Academy, a charter school in
Indianapolis. (Id.)
Discussion
NHA has moved to dismiss Brooks-Ngwenya’s complaint pursuant to Federal
Rule of Civil Procedure 12(b)(6). (DE 6.) 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
defendant in Brooks-Ngwenya’s other copyright infringement case, but, seeing as there
is no pending motion to dismiss in that case, it’s clear she intended this document to be
a response to NHA’s motion.
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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.
Finally, because Brooks-Ngwenya is representing herself, I must construe her complaint
liberally. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
The United States Copyright Act provides exclusive rights to the owner of a
copyright to reproduce the copyrighted work and to prepare derivative works. 17 U.S.
§ 106. To state a claim for copyright infringement, Brooks-Ngweyna must allege that
(1) she owned a valid copyright on TIRS materials and (2) NHA copied or created
derivative works from the copyrighted materials. 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, 361 (1991); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151,
157 (1975)). NHA does not dispute that the complaint alleges a valid copyright, so the
only question is whether the complaint sufficiently alleges that NHA copied or created
derivative works from copyrighted TIRS material.
The complaint utterly fails to do that. It concludes that “Andrew J. Brown
Academies is a replica of [TIRS],” but no where does the complaint allege that MSCS
materials copy or are derived from copyrighted TIRS text. (See DE 1 at 2–3.) The closest
the plaintiff comes to alleging these necessary supporting facts is in her summaries of
TIRS and the MSCS models, which, if placed side by side, allow one to compare some of
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the structural components of the two programs. (Compare DE 1 at 5–12, and DE 1-2 at
1–7; see also DE 1 at 13–98 (TIRS manual); DE 1-2 at 8–109 (MSCS documents).) Doing
that sort of comparison does not unmask any textual overlap or similarity in the TIRS
and MSCS materials, although it does suggest that the two models share certain
features, such as a before-school program and a summer work-study program. (See id.)
And similarities of that sort cannot infringe a copyright because a copyright only
protects the “particularized expression of the idea.” See Pivot Point Intern., Inc. v.
Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir.2004) (internal quotation marks and
citation omitted). Here, that means that text materials Brooks-Ngwenya prepared for
the TIRS program may have copyright protection, but the ideas and principles that
underlie the program do not. As the Seventh Circuit put it in a similar case brought by
Brooks-Ngwenya:
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. Indianapolis Pub. Sch., 564 F.3d 804, 808 (7th Cir. 2009) (internal
quotation marks and citations omitted). To have alleged copyright infringement, the
complaint must claim that the materials NHA used copied the language of the TIRS
materials, or at least derived from it, and it simply doesn’t. The complaint fails to state a
plausible claim and must be dismissed.

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Conclusion
For these reasons, NHA’s Motion to Dismiss (DE 6) is GRANTED, and BrooksNgwenya’s complaint is DISMISSED WITHOUT PREJUDICE. Brooks-Ngwenya is
GRANTED leave to file an amended complaint that addresses the deficiencies
identified above by no later than November 30, 2016 and is CAUTIONED that failure to
do so may result in dismissal of this case with prejudice.
SO ORDERED.
ENTERED: November 1, 2016.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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