Flynn v. Siren-BookStrand, Inc.

Filing 33

MEMORANDUM AND ORDER regarding MOTION to Compel Arbitration 17 filed by Siren-BookStrand, Inc. The parties shall provide their respective supplemental briefs on this issue by February 14, 2014. No reply briefs will be allowed absent leave of the court. Ordered by Magistrate Judge Cheryl R. Zwart. (JAB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
ERIN FLYNN,
Plaintiff,

4:13CV3160

vs.
MEMORANDUM AND ORDER
SIREN-BOOKSTRAND, INC., DIANA
DEBALKO,
Defendants.
Plaintiff brought this action seeking an order from the court awarding damages
under the Digital Millennium Copyright Act and equitable relief pertaining to her right to
publish certain books through means other than Defendant Siren-Bookstrand, Inc. (Filing
No. 7). Defendants oppose this action and have moved to compel arbitration of the
dispute.

At the heart of this dispute is whether the books Plaintiff seeks to publish are
“sequels” to books Plaintiff previously published through Defendant Siren.

If so,

Defendant argues they are subject to its right of first refusal to publish pursuant to terms
of a publishing contract between Flynn and Siren. An example of the contract, submitted
by the plaintiff, contains an arbitration provision and Defendants argue this provision
requires arbitration of the dispute now before the court.

For her part, Flynn argues the

books addressed in her declaratory judgment action are not sequels and are not bound by
any previous contracts she entered into with Defendants.

Assuming, without deciding, that any of the previous contracts apply to this
action, the court would like the parties to provide their respective positions on how, if at
all, Section XXVIII(C) of these contracts applies to the plaintiff’s request for a
declaratory judgment action in this case. That section apparently preserves both the

author’s and publisher’s rights to seek equitable relief in federal or state courts in Texas,
as follows:

Notwithstanding the foregoing, nothing in this contract shall be deemed to
deprive AUTHOR or PUBLISHER of the right to equitable relief in a court
of competent jurisdiction respecting rights to its intellectual property or use
thereof under this contract. Any proceeding under this paragraph shall be
brought in the federal or state courts in Texas . A judgment may be entered
in a court of competent jurisdiction based on any award rendered in
arbitration or other proceeding conducted by AUTHOR and PUBLISHER
pursuant to this paragraph.
(Filing No. 9-1, p. 17).

The parties shall provide their respective supplemental briefs on this issue by
February 14, 2014. No reply briefs will be allowed absent leave of the court.

Dated this 5th day of February, 2014.
BY THE COURT:
s/ Cheryl R. Zwart
United States Magistrate Judge

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