Brooks-Ngwenya v. Bart Peterson's The Mind Trust

Filing 138

OPINION AND ORDER GRANTING 99 MOTION to Dismiss for Failure to State a Claim by Defendant Bart Petersons' Mind Trust; DENYING AS MOOT 91 MOTION for Judgment on the Pleadings Pursuant to Fed.R.Civ.P.12(c) by Plaintiff Angela E Brooks-Ngwenya; DENYING AS MOOT 102 MOTION for Judgment on the Pleadings Pursuant to Fed.R.Civ.P. 12(c) by Plaintiff Angela E Brooks-Ngwenya; DENYING AS MOOT 107 MOTION for Preliminary Injunction by Plaintiff Angela E Brooks-Ngwenya; DENYING AS MOOT 111 MOTIO N to Strike 110 Defendant's Response in Opposition to Plaintiff's Motion for Summary Judgment by Plaintiff Angela E Brooks-Ngwenya. The Amended Complaint is DISMISSED WITHOUT PREJUDICE. Plaintiff GRANTED until 6/19/2017 to file a Second A mended Complaint that addresses the many deficiencies outlined in this Opinion and Order. Plaintiff CAUTIONED that failure to do so will result in dismissal of this case with prejudice. Signed by Judge Philip P Simon on 5/22/17. (Copy mailed to pro se party).(cer)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
FORT WAYNE DIVISION
ANGELA BROOKS-NGWENYA,
Plaintiff,
v.
BART PETERSONS’ MIND TRUST,
Defendant.

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Cause No. 1:16-cv-193

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.
Background
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
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The others are Brooks-Ngwenya v. Nat’l Heritage Acads., No. 1:16-cv-183
(N.D. Ind. May 26, 2016); Brooks-Ngwenya v. The Mind Trust, No. 1:15-cv-1648 (S.D. Ind.
Sept. 15, 2015); Brooks-Ngwenya v. Indy. Pub. Schs., No. 1:13-cv-152 (S.D. Ind. Jan. 28,
2013); Brooks-Ngwenya v. Indy. Pub. Schs., No. 1:07-cv-67 (S.D. Ind. Jan. 18, 2007); BrooksNgwenya v. Thompson, No. 1:05-cv-1469 (S.D. Ind. Oct. 3, 2005).

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,
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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.
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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 Heritage Academies, Inc., both non-parties, and further claims:
That Plaintiff was denied employment in the promotion of [TIRS] and [the]
Mayors Sponsored Charter Schools.
...
[And] [t]he act of ignoring Plaintiffs Copyrights for The Transitioning Into
Responsible Students by Ex-Mayor Bart Peterson is conduct of wrongful
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harassment, was premeditated, intentional, negligent and reckless disregard
to the Plaintiff’s . . . rights, and has caused Plaintiff to undergo severe
emotional distress.
(DE 54 ¶¶ 21–22.) The paragraphs that follow vaguely refer to “the defendant” and to
the defendant’s “conduct of excluding Plaintiff and not allowing her to participate in
the promotion of her intellectual property” and “ignoring and continuing to utilize her
intellectual property.” (Id. ¶¶ 23–24.) These references strongly suggest that the
“defendant” referred to in Count Two is not the Mind Trust, but Peterson, who, of
course, is not a party.
But even if this claim could somehow be read to plead a claim against the Mind
Trust, it has to be dismissed because it is, at best, a “threadbare recital[] of a cause of
action’s elements, supported by mere conclusory statements.” See Ashcroft v. Iqbal, 556
U.S. at 663. The complaint barely alleges the elements of an intentional infliction of
emotional distress claim—that the Mind Trust (1) engaged in extreme and outrageous
conduct; (2) intentionally or reckless; (3) that caused; (4) severe emotional distress—let
alone necessary supporting facts. See Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct.
App. 2011). The only hints of what the plaintiff thinks was “extreme and outrageous”
conduct by the Mind Trust are the section headers announcing the plaintiff’s
contributory infringement and breach of contract claims, and that’s just not enough to
plead a claim. Further, even if the Mind Trust did contribute to infringement of the
plaintiff’s copyright or breach a contract with her, neither would amount to conduct “so
outrageous in character, and so extreme in degree, as to go beyond all bounds of
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decency, and to be regarded as atrocious and utterly intolerable in a civilized
community.” Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999).
Finally, to the extent that Brooks-Ngwenya intended Count Two to plead
negligent infliction of emotional distress, it still must be dismissed because such a claim
under Indiana law requires a “direct physical impact.” See Conder v. Wood, 716 N.E.2d
432, 434 (Ind. 1999). Brooks-Ngwenya alleges psychological harms, including “a
continuing fear of presenting future program initiatives,” but no physical impact of any
sort. (DE 54 at 5.)
For all of these reasons, Count Two must be dismissed.
Breach of Contract
Count Three alleges that Indianapolis Public Schools breached a contract with
the plaintiff and reiterates plaintiff’s allegations about copyright infringement by
Peterson. (DE 54 at 6.) No where in the amended complaint does Brooks-Ngwenya
allege that she had a contract with the defendant, and it should go without saying that
there can be no breach if there was no contract. Count Three must be dismissed.
Conclusion
Accordingly, the Mind Trust’s Motion to Dismiss (DE 99) is GRANTED, and the
amended complaint is DISMISSED WITHOUT PREJUDICE. The plaintiff’s motions
for judgment on the pleadings (DE 91; DE 102), her related motion to strike (DE 111),
and her motion for preliminary injunction (DE 107) are DENIED as moot. The plaintiff
is GRANTED leave to file a second amended complaint that addresses the many
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deficiencies identified above by no later than June 19, 2017, and is CAUTIONED that
failure to do so will result in dismissal of this case with prejudice.
SO ORDERED.
ENTERED: May 22, 2017.
s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT

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