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

Filing 147

OPINION AND ORDER: The Court STRIKES the Second Amended Complaints 140 and 142 ; DENIES AS MOOT Plaintiff's motions to amend the case caption 141 and 144 ; Plaintiff's claims against defendants David Harris, Mayor Sponsored Charter Schools, US Conference of Mayors, Education Cities, CEE-Trust, IPS Great Schools Campaign, Earl Phalen Entrepreneurial Ventures in Ed., Indiana Parks and Recreation, Chicago Housing Authority, IPSEF Inc., Democrats for Education Reform, National Le ague of Cities, and Indiana Department of Education are DISMISSED WITHOUT PREJUDICE, and the Clerk of Court is DIRECTED to treat these defendants as terminated; the Second Amended Complaint 145 against the Mind Trust is DISMISSED WITH PREJUDICE, and the Clerk is DIRECTED to close this matter. Signed by Judge Philip P Simon on 6/8/2017. (Copy mailed to pro se party)(lhc)

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

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Cause No. 1:16-cv-193

OPINION & ORDER
Angela Brooks-Ngwenya brought filed this matter pro se against the Mind Trust,
alleging contributory copyright infringement, wrongful infliction of emotional distress,
and breach of contract. (DE 54.) I dismissed her prior complaint because it failed to
make out any plausible claim for relief, but I granted Brooks-Ngwenya an opportunity
to address the deficiencies in her claims against the defendant. (See DE 138.) She
recently filed a series of documents, including three versions of a Second Amended
Complaint and two motions to amend the case caption of the Second Amended
Complaint (DE 140; DE 141; DE 142; DE 144; DE 145.) It’s apparent that BrooksNgwenya intended the last-filed Second Amended Complaint to be the operative one,
so I the prior-filed versions will be stricken, and her motions to amend the caption will
be denied as moot.
The Second Amended Complaint alleges claims against the Mind Trust and
thirteen new defendants. (See DE 145 at 1.) However, the time for adding defendants to
this matter expired on February 17, 2017. (DE 62 at 3.) While my May 22, 2017 order

dismissing the amended complaint granted the plaintiff leave to further amend her
complaint to try to cure the deficiencies in her claims against the Mind Trust, it did not
extend the time for adding new parties or otherwise grant the plaintiff leave to add
defendants at this late date. (See DE 138 at 6-7.) Accordingly, the plaintiff’s claims
against defendants other than the Mind Trust must be dismissed.
Which leaves the Second Amended Complaint’s claims against the Mind Trust:
copyright infringement, wrongful infliction of emotional distress, and breach of
contract. Because Brooks-Ngwenya is proceeding in forma pauperis, I must analyze her
complaint and dismiss the action “at any time” if it is frivolous or malicious or fails to
state a claim on which relief may be granted—which is the case here. See 28 U.S.C.
§ 1915(e)(2)(B). I will construe the complaint liberally, since Brooks-Ngwenya is
proceeding without the benefit of counsel. See Erickson v. Pardus, 551 U.S. 89, 94 (2007).
Count One: Copyright Infringement
I previously dismissed Brooks-Ngwenya’s contributory infringement claim
against the Mind Trust because, among other things, the amended complaint failed to
“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[.]” (DE 138 at 4 (citing Peters v. West,
692 F.3d 629, 633 (7th Cir. 2012)) (internal quotation marks omitted).) Although the
Second Amended Complaint alleges direct infringement instead of contributory
infringement, the claim suffers from the same shortcoming as its predecessor.
“Fundamentally, proving the basic tort of infringement simply requires the plaintiff to
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show that the defendant had an actual opportunity to copy the original . . . and that the
two works share enough unique features to give rise to a breach of the duty not to copy
another’s work.” Peters, 692 F.3d at 633. Brooks-Ngwenya alleges that the Mind Trust’s
CEO “used” materials that were themselves derived from the copyrighted materials to
create additional materials and that the “Mind Trust Used the TIRS Educational Mode
Language to create the New School Incubator Network Educational Model Language,”
but the plaintiff hasn’t supported these legal conclusions with any facts. (See DE 145
¶¶ 30, 33–35.) “While legal conclusions can provide the complaint’s framework, they
must be supported by factual allegations.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The
Second Amended Complaint alleges no facts suggesting any similarities between her
copyrighted materials and those the Mind Trust created or used, and so this claim must
be dismissed.
State Law Claims
That leaves the Second Amended Complaint’s claims for “wrongful” 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
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
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claims should be decided. Wright v. Associated Ins. Cos., 29 F.3d 1244, 1251–52 (1994).
Because this court invested substantial resources in deciding Brooks-Ngwenya’s very
similar state law claims in the amended complaint (see DE 138 at 4-5) and because it is
clear how the repleaded state law claims must be decided, I will retain jurisdiction over
them.
Count Two: “Wrongful” Infliction of Emotional Distress
Count Two suffers from the very same problems I identified when I dismissed
this claim as pleaded in the amended complaint. (See DE 138 at 4-5.) To allege a viable
claim of intentional infliction of emotional distress against the defendant, BrooksNgwenya must allege that the Mind Trust (1) intentionally or recklessly (2) engaged in
extreme and outrageous conduct (3) that caused (4) severe emotional distress. See Curry
v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct. App. 2011). The only hint of what the plaintiff
thinks was “extreme and outrageous” conduct by the Mind Trust are her allegations
that the defendant and/or its CEO ignored her copyright, continued to use her
materials without permission, and “partnered with other entities to prevent Plaintiff
from piloting TIRS and future Projects.” (DE 145 at 10.) Even if the Mind Trust were
guilty of all this conduct, it wouldn’t amount to conduct “so outrageous in character,
and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as
atrocious and utterly intolerable in a civilized community.” See Bradley v. Hall, 720
N.E.2d 747, 753 (Ind. Ct. App. 1999). In addition, and to the extent that the plaintiff
intended Count Two to plead a claim of negligent infliction of emotional distress, it still
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must be dismissed because such a claim requires a “direct physical impact.” See Conder
v. Wood, 716 N.E.2d 432, 434 (Ind. 1999). Brooks-Ngwenya alleges psychological harms,
including “extreme embarrassment, severe mental anguish, and emotional trauma” but
no physical impact of any sort. (See DE 145 at 10-11.) For these reasons, Count Two of
the Second Amended Complaint against the Mind Trust must be dismissed.
Count Three: Breach of Contract
Count Three of the Second Amended Complaint appears to allege that the
Indianapolis Public Schools breached a contract it had with the plaintiff. The
Indianapolis Public Schools, however, is not a party in this matter, and no where in the
Second Amended Complaint does Brooks-Ngwenya allege that she had a contract with
the defendant. I advised the plaintiff in my order dismissing this claim as pleaded in her
prior complaint that the Mind Trust could not have breached a contract, if there was no
contract between the parties. (DE 145 at 11; see also DE 54 at 6.) But she hasn’t heeded
that advice, and so Count Three must be dismissed.
Conclusion
Accordingly:
(1) the previously filed versions of the Second Amended Complaint (DE 140; DE
142) are STRICKEN as improvidently filed;
(2) Brooks-Ngwenya’s motions to amend the case caption (DE 141; DE 144) are
DENIED as moot;
(3) Brooks-Ngwenya’s claims against defendants David Harris, Mayor
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Sponsored Charter Schools, US Conference of Mayors, Education Cities, CEE-Trust, IPS
Great Schools Campaign, Earl Phalen Entrepreneurial Ventures in Ed., Indiana Parks
and Recreation, Chicago Housing Authority, IPSEF Inc., Democrats for Education
Reform, National League of Cities, and Indiana Department of Education are
DISMISSED WITHOUT PREJUDICE, and the Clerk of Court is DIRECTED to treat
these defendants as terminated; and
(4) the Second Amended Complaint (DE 145) against the Mind Trust is
DISMISSED WITH PREJUDICE, and the Clerk is DIRECTED to close this matter.
SO ORDERED.
ENTERED: June 8, 2017.
s/ Philip P. Simon
JUDGE, UNITED STATES DISTRICT COURT

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