Richmond et al v. Original Juan and Spicin foods et al

Filing 20

MEMORANDUM AND ORDER - plaintiff's Complaint is dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii), for failing to state a claim forrelief. It is further ordered that plaintiff Courtney Richmond's "Motion forHearing" (Doc. 19 ) is denied as moot. Signed by District Judge Daniel D. Crabtree on 1/11/2022. Mailed to pro se party Courtney Richmond by regular mail. (hw)

Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
COURTNEY RICHMOND, et al.,
Plaintiffs,
v.
Case No. 21-2500-DDC-TJJ
ORIGINAL JUAN AND SPICIN FOODS,
et al.,
Defendants.
_____________________________________
MEMORANDUM AND ORDER
Pro se plaintiffs Courtney Richmond and Chef Courtney’s Homemade BBQ sauce1 filed
this lawsuit in the District of Nebraska. Doc. 1. The Nebraska federal court granted plaintiffs’
Motion for Leave to Proceed In Forma Pauperis. Doc. 5. And, in that Order, the Nebraska court
advised that “the next step in [the] case will be for the court to conduct an initial review of
[plaintiffs’] claims to determine whether summary dismissal is appropriate under 28 U.S.C. §
1915(e)(2).” Id. at 1. And, the court said it “will conduct this initial review in its normal course
of business.” Id. Later, the Nebraska court found that it was an improper venue for plaintiffs’
lawsuit and it transferred the action to our court. See generally Doc. 10.
After transfer, Magistrate Judge Teresa James issued a first Show Cause Order (Doc. 14)
to plaintiff Courtney Richmond. Judge James’s Order explained that federal jurisdiction is not

The Complaint names two plaintiffs: (1) Mr. Richmond, and (2) Chef Courtney’s Homemade
BBQ Sauce. The Complaint and Mr. Richmond’s other filings don’t explain, at least not explicitly, the
identity of the second plaintiff. But the court infers that it’s the name of Mr. Richmond’s barbeque sauce.
Also, because plaintiffs proceed pro se, the court construes their filings liberally. Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991) (“A pro se litigant’s pleadings are to be construed liberally and held to a
less stringent standard than formal pleadings drafted by lawyers.”).

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stated clearly on the face of the Complaint. So, Judge James ordered plaintiff Courtney
Richmond to show cause why the district court shouldn’t dismiss this action for lack of subject
matter jurisdiction. Id. at 2–3. Mr. Richmond filed a Response to the Show Cause Order (Doc.
15). But it didn’t provide any more clarity about subject matter jurisdiction.
So, the court issued a Second Notice and Order to Show Cause (Doc. 17). It again
directed plaintiff Courtney Richmond to show cause why the court should not dismiss this case
for lack of subject matter jurisdiction. Mr. Richmond has filed a Response to that second Show
Cause Order. Doc. 18. The court considers below whether Mr. Richmond has alleged proper
subject matter jurisdiction. Liberally construing Mr. Richmond’s filings, the court finds that he
has alleged that the court has subject matter jurisdiction over this copyright “infringement”
action. Id. at 1. Then, the court proceeds to screen the Complaint under 28 U.S.C. § 1915(e)(2),
concluding that plaintiffs’ Complaint fails to allege a plausible claim under any federal copyright
law. Thus, the court dismisses this lawsuit without prejudice.
Subject Matter Jurisdiction
Liberally construed, Mr. Richmond alleges claims for “conversion of property[,]”
“infringement[,]” and “breach of contract.” Doc. 18 at 1, 5. But still, he never explains
explicitly how the court has subject matter jurisdiction over his case. As the court explained in
its second Show Cause Order, “[t]here are two statutory bases for federal subject-matter
jurisdiction: diversity jurisdiction under 28 U.S.C. § 1332 and federal-question jurisdiction
under 28 U.S.C. § 1331.” Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir.
2003). And, the party invoking federal jurisdiction bears the burden of showing subject matter
jurisdiction exists. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).

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Mr. Richmond hasn’t established diversity jurisdiction under 28 U.S.C. § 1332. Despite
the court’s previous instructions, he still alleges nothing about the parties’ citizenship or the
amount in controversy sufficient to invoke the court’s diversity jurisdiction. So, Mr. Richmond
has failed to allege that the court has diversity subject matter jurisdiction.
But, affording Mr. Richmond’s filings a very liberal construction, the court finds that he
has alleged federal question jurisdiction under 28 U.S.C. § 1331. Although it is still “far from
clear[,]” Doc. 14 at 2, it appears that Mr. Richmond is asserting a claim under the federal
copyright laws for copyright infringement. Mr. Richmond doesn’t invoke any federal statute or
explicitly identify the federal cause of action he is asserting. Nevertheless, the court liberally
construes his filings and finds that it alleges the court has federal question jurisdiction under 28
U.S.C. § 1331.
Screening Under 28 U.S.C. § 1915(e)(2)
As already explained, plaintiffs proceed in forma paupers (“IFP”) in this case. See Doc. 5
(granting motion for leave to proceed IFP but deferring screening under 28 U.S.C. § 1915(e)(2)).
Under 28 U.S.C. § 1915(e)(2), the court must consider the merits of all cases in which a plaintiff
proceeds IFP, and must dismiss any action that it determines “fails to state a claim on which
relief may be granted[.]” 28 U.S.C. § 1915(e)(2)(B)(ii). To determine whether a pro se plaintiff
states a plausible claim, the “standard of review for dismissals under § 1915(e)(2)(B)(ii)” is the
same as “Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a
claim.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “[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, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere

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conclusory statements,” are insufficient to state a claim. Id. The court “accept[s] the facts
alleged in the complaint as true and view[s] them in the light most favorable to the plaintiff.”
Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
Plaintiffs’ Complaint Fails to State a Claim
Liberally construing the Complaint and plaintiffs’ other filings as ones asserting a claim
under the federal copyright laws, the court finds that plaintiffs fail to state a plausible claim for
relief. As already noted, neither the Complaint nor any of the other filings invoke a federal
statute to support a copyright infringement claim. Instead, the filings just repeatedly accuse
defendants of using “copyrighted” ingredients for a barbeque sauce. See Doc. 1 at 2 (accusing
defendants “of stealing and infringing his property”); see also Doc. 15 at 1 (alleging defendants
“began using the plaintiffs[’] ingredients copyrighted before agreement”); see also Doc. 18 at 4
(asserting that Mr. Richmond “has ownership copyrights . . . making [him] the real owner of the
recipe and ingredients used to make” the barbeque sauce). But, plaintiffs haven’t identified any
copyright that they own on the ingredients used in the barbeque sauce. And, as previously
explained, a “mere listing of ingredients” is “not subject to copyright[.]” Doc. 17 at 3 n.3 (first
citing 37 C.F.R. § 202.1(a); then citing Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480
(7th Cir. 1996) (holding that “identification of ingredients necessary for the preparation of each
dish is a statement of facts” and is not subject to copyright); then citing Dow Jones & Co. v. Bd.
of Trade of City of Chi., 546 F. Supp. 113, 116 (S.D.N.Y. 1982) (explaining that lists of
ingredients aren’t subject to copyright protection, thus courts deny copyright protection to lists of
ingredients on the labels of food products (citations omitted))).
Mr. Richmond has alleged that he has a copyright on a “barbecue sauce label[.]” Doc. 15
at 2; see also id. at 3 (Certificate of Registration from the United States Copyright Office for

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“Courtney Richmond Projects” including “BBQ Sauce Label” for “photograph” and “2-D
artwork”); Doc. 18 at 1 (alleging that Mr. Richmond “copyrighted his labels with the same
ingredients used to make his” sauce). But, plaintiffs never allege any facts supporting a federal
cause of action based on this copyrighted artwork. Thus, plaintiffs have failed to allege a
plausible claim for copyright infringement.
As a consequence, plaintiffs’ Complaint “fails to state a claim on which relief may be
granted” under federal law.2 28 U.S.C. § 1915(e)(2)(B)(ii). And, § 1915(e)(2)(B)(ii) requires
the court to dismiss the case. See id. (directing that “the court shall dismiss the case at any time
if the court determines that” a plaintiff proceeding IFP “fails to state a claim on which relief may
be granted” (emphasis added)). Thus, the court dismisses plaintiffs’ Complaint under
§ 1915(e)(2)(B)(ii) and without prejudice.
Also, the court denies as moot the Motion for Hearing (Doc. 19). Mr. Richmond’s
Response to the second Show Cause Order requests “a hearing and Jury Demand” and “if not
that[,] a settlement for the breach of contract before the 2 year contract ended or severed.” Doc.
19 at 5. Because plaintiffs have failed to state a plausible federal cause of action, the court
dismisses this lawsuit. In light of the dismissal, no hearing is required or warranted here. The
court thus dismisses the request for a hearing as moot.

To the extent plaintiffs have alleged plausible state law claims for breach of contract or
conversion, the court declines to exercise supplemental jurisdiction over those state law claims under 28
U.S.C. § 1367(a). See Exum v. U.S. Olympic Comm., 389 F.3d 1130, 1138–39 (10th Cir. 2004)
(explaining that decision whether to exercise supplemental jurisdiction is committed to district court’s
sound discretion); see also Smith v. City of Enid ex rel. Enid City Comm’n, 149 F.3d 1151, 1156 (10th
Cir. 1998) (“When all federal claims have been dismissed, the court may, and usually should, decline to
exercise jurisdiction over any remaining state claims.” (emphasis added)).

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IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Complaint is
dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii), for failing to state a claim for
relief.
IT IS FURTHER ORDERED THAT plaintiff Courtney Richmond’s “Motion for
Hearing” (Doc. 19) is denied as moot.
IT IS SO ORDERED.
Dated this 11th day of January, 2022, at Kansas City, Kansas.
s/ Daniel D. Crabtree
Daniel D. Crabtree
United States District Judge

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