Brooks-Ngwenya v. National Heritage Academies Inc

Filing 53

OPINION AND ORDER National Heritage Academies Motion to Dismiss DE 41 is GRANTED. Brooks-Ngwenyas claims against NHA for contributory copyright infringement (Count I) is DISMISSED WITH PREJUDICE, and her intentional infliction of emotional distress and breach of contract claims (Counts II and III) are DISMISSED WITHOUT PREJUDICE. The Clerk of Court is DIRECTED to treat this matter as closed. Signed by Chief Judge Philip P Simon on 1/6/17. (kjp) cc:pltf

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 brought this case alleging the National Heritage
Academies has infringed her copyright on an educational model called Transitioning
into Responsible Students (“TIRS”). I dismissed her initial complaint, which claimed
that NHA used a “replica” of the TIRS model at a charter school in Indianapolis,
because it failed to allege that NHA copied or made derivative works from plaintiff’s
copyrighted material. (DE 1 at 2; DE 35.) Brooks-Ngwenya has since filed an amended
complaint, which alleges two claims against NHA: contributory infringement for using
TIRS without her consent and intentional infliction of emotional distress for denying
her employment, refusing to allow her to participate in the promotion of TIRS at NHA’s
school, and failing to acknowledge that she created the educational program. (DE 39 at
4.) The amended complaint also claims that the Indianapolis Public Schools—which is
not a party to this case—breached a contract with the plaintiff. (Id. at 5.) NHA moves to
dismiss on grounds that the amended complaint fails to allege any viable claim. (DE 41.)
For the reasons below, the motion is granted.

Background
Like its predecessor, the amended complaint does a poor job of setting out the
plaintiff’s version of this story, and, worse, it muddies the water with irrelevant
allegations about—and a count against—parties who are not defendants in this matter.
But here’s what I can make out that relates in some fashion to the conduct NHA is
accused of. Brooks-Ngwenya alleges that she created the TIRS educational model. (DE
39 at 2.) According to the amended complaint, Bart Peterson, mayor of Indianapolis at
the time, “implemented” TIRS at the Andrew J. Brown Academy in 2003, and a year
later he hired NHA, a for-profit charter school management company, to run the school.
(Id. at 2–3.) NHA allegedly continued to use TIRS at the Andrew J. Brown Academy
after it took over, but denied Brooks-Ngwenya employment and the chance “to
participate in the promotion” of the program and failed to acknowledge that she created
it. (Id. at 3–4.) The complaint also claims that J.C. Huizenga, the founder and chairman
of NHA, “adopted” the TIRS model and later “launched a high school initiative, . . .
which he adopted from Andrew J. Brown Academy.” (Id. at 3.)
On May 26, 2006, Brooks-Ngwenya registered a copyright on a document or a
collection of documents related to the TIRS program. (Id. at 2.) It is unclear from the
amended complaint whether the copyrighted text is the TIRS pilot manual attached to
the initial complaint or some other document. (See generally DE 39; DE 1 at 13–98.)
Finally, Brooks-Ngwenya alleges in the amended complaint that NHA continues
to use and profit from the TIRS program to this day. (DE 39 at 3.)
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Discussion
NHA has moved to dismiss Brooks-Ngwenya’s amended complaint pursuant to
Federal Rule of Civil Procedure 12(b)(6). (DE 41.) 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. 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. In her amended complaint, Brooks-Ngwenya does not claim that NHA itself
infringed her copyright, but instead that the defendant was a contributory infringer. To
make out a plausible claim of contributory copyright infringement, a complaint must
allege that: (1) a third party infringed 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).
Brooks-Ngwenya’s amended complaint alleges none of the three elements of a
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contributory infringement claim. It does not allege that NHA knew that Bart Peterson or
any other party infringed Brooks-Ngwenya’s copyright, and it contains no allegations
about how NHA materially contributed to any copyright infringement. But an even
bigger problem is that the amended complaint once again fails to plausibly allege that
Brooks-Ngwenya’s copyrighted text was actually infringed in the first place.
According to the complaint, Peterson “implemented TIRS at Andrew Brown
Academy” and Huizenga “adopted [the] TIRS model” and later launched an
educational initiative based on the model used at the Andrew J. Brown Academy NHA
was hired to run. (DE 39 at 3.) But, as I explained when I dismissed the initial complaint,
stealing another person’s ideas does not constitute copyright infringement. (See DE 35 at
4.) Instead, a copyright protects the particular words that are used to express an idea. See
Brooks-Ngwenya v. Indy. Pub. Sch., 564 F.3d 804, 808 (7th Cir. 2009); Pivot Point Intern.,
Inc. v. Charlene Prods., Inc., 372 F.3d 913, 929 (7th Cir. 2004). That means that someone
could implement all the components of the TIRS educational program without
infringing Brooks-Ngwenya’s copyright, so long as they don’t copy her copyrighted
materials or use them to develop their own written materials.
And no where does the amended complaint allege that Peterson, Huizenga, or
anyone else copied the copyrighted TIRS documents or used them create derivative
works. (See generally DE 39 at 1–6.) True, in her response to NHA’s motion,1 Brooks1

Brooks-Ngwenya filed three documents that purport to respond to NHA’s
motion to dismiss. (See DE 48; DE 49; DE 51.) The first and second appear to be
identical, and both include a motion for leave to amend the complaint and a response to
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Ngwenya says that Duncan Pritchert (who is not even mentioned in the amended
complaint) “copied the language” of the TIRS materials when he created the Bridges to
Success educational model and that Peterson “copied” TIRS language when he created
the Programming for Success educational model, but this is too little too late. Even if
this language had been in the amended complaint, these are legal conclusions that are
unsupported by factual allegations of any sort of similarity between the materials
Brooks-Ngwenya apparently copyrighted and those NHA uses at its school.2 “[L]egal
conclusions can provide the framework of a complaint, [but] they must be supported by
factual allegations.” Iqbal, 556 U.S. at 679. The amended complaint does not state a
plausible claim for contributory infringement, and so Count I must be dismissed.
That leaves the amended complaint’s state law claims for intentional infliction of
emotional distress and breach of contract. In general, “when all federal claims are
dismissed before trial, the district court should relinquish jurisdiction over pendent
state-law claims rather than resolving them on the merits.” Kennedy v. Schoenberg, Fisher
& Newman, Ltd., 140 F.3d 716, 727 (7th Cir. 1998); see also 28 U.S.C. § 1367(c). Courts

the motion to dismiss. (Compare DE 48, with DE 49.) The motion for leave to amend the
complaint has been denied (see DE 52), and only the second half of the twice-filed
document is relevant to this motion. (See DE 48 at 8-14; DE 49 at 8-14.)
2

Although the initial complaint also failed to allege any facts that would
support a claim of copyright infringement, the exhibits included two documents with
textual extracts from the TIRS program and Peterson’s educational model. (See DE 1 at
5–12; DE 1-2 at 1–7.) Placing those documents side by side revealed structural
similarities between the two programs, but did not suggest any similarity in the
language used in the materials. (Id.)
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recognize several exceptions to this general rule, including where the limitations
statutes on the state claims have run, where the court has already invested substantial
resources in deciding the state claims, and where it is “absolutely clear” how the state
claims should be decided. Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–52 (1994). No
exception applies here, and so I decline to exercise jurisdiction over the state law claims
in Counts II and III of the amended complaint. They will be dismissed without
prejudice to Brooks-Ngwenya’s ability to refile them in state court, if she thinks she can
make out viable claims—for example, ones that don’t suffer from the shortcomings
NHA has identified in its motion to dismiss.
Conclusion
For these reasons, NHA’s Motion to Dismiss (DE 41) is GRANTED. BrooksNgwenya’s claims against NHA for contributory copyright infringement (Count I) is
DISMISSED WITH PREJUDICE, and her intentional infliction of emotional distress
and breach of contract claims (Counts II and III) are DISMISSED WITHOUT
PREJUDICE. The Clerk of Court is DIRECTED to treat this matter as closed.
SO ORDERED.
ENTERED: January 6, 2017.
s/ Philip P. Simon
CHIEF JUDGE
UNITED STATES DISTRICT COURT

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