Case3:14-cv-00518-LB Document31 Filed06/09/14 Page1 of 7
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`GARY REGINALD DODGE,
`Plaintiff,
`
`UNITED STATES DISTRICT COURT
`Northern District of California
`San Francisco Division
`No. C 14-00518 LB
`ORDER GRANTING DEFENDANT’S
`MOTION TO DISMISS PLAINTIFF’S
`COMPLAINT
`[Re: ECF No. 28]
`
`v.
`AUTHOR SOLUTIONS, LLC, doing business
`as AUTHOR HOUSE,
`Defendant.
`_____________________________________/
`INTRODUCTION
`Plaintiff Gary Reginald Dodge sued Author Solutions, LLC1 (“Author Solutions”) for its alleged
`misconduct in relation to the publication of his book, entitled Acts of War: Jesus/Alexander & JFK.
`See Complaint, ECF No. 1; First Amended Complaint (“FAC”), ECF No. 26.2 Author Solutions
`moves to dismiss Mr. Dodge’s Complaint. See Motion, ECF No. 16. Pursuant to Civil Local Rule
`7-1(b), the court finds this matter suitable for determination without oral argument and vacates the
`June 19, 2014 hearing. Upon consideration of the Complaint, the briefs submitted, and the
`applicable legal authority, the court GRANTS Author Solutions’ motion to dismiss.
`
`1 Formerly known as Author Solutions, Inc. and doing business as Author House.
`
`2 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronically-
`generated page number at the top of the document.
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`C 14-00518 LB
`ORDER
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
`
`

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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page2 of 7
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`STATEMENT
`
`I. THE COMPLAINT
`On February 3, 2014, Mr. Dodge filed a handwritten, four-page complaint against Author
`Solutions seeking, among other things, “double restitution” of $20 million (and up to $100 million if
`Author Solutions “contests[] and loses” this action) for a “theft of royalties” relating to the
`publication of Acts of War: Jesus/Alexander & JFK. See Complaint, ECF No. 1 at 1-4. The original
`complaint in its entirety is as follows:
`“Acts of War: Jesus/Alexander & JFK” was written by me, ‘Gary Reginald Dodge’ in 2003.
`Since March[] 2004, Author [Solutions] has consistently committed a ‘Theft of Royalties,’ and
`offering [sic] me only pennies in return for my work.
`I, Gary Reginald Dodge, therefore demands [sic], and expects [sic], $10 million in damages for
`the ten years of stealing increasing sales of the book, “Acts of War: Jesus/Alexander & JFK.” I
`further demand double restitution, ($20 million) because I did not make a ten-million-dollars
`[sic] loan to Author [Solutions], with an expectation of timely repayment. Author [Solutions],
`for ten years, committed a “Theft of Royalties” with no intention of paying an equitable
`payment to me, the author of the book; “Acts of War: Jesus/Alexander & JFK.”
`I further demand from Author [Solutions] that they cease and desist selling my book, and a
`return of the eight original copies of documents this writer found in the National Archives in the
`Lyndon B. Johnson Museum and Library at the University of Texas in Austin.
`I do further demand, and expect, if Author Solutions contest’s [sic], and loses, 1 hundred
`million dollars ($100,000,000), which is the value of “Acts of War: Jesus/Alexander and JFK,”
`(if I was asked to participate in the promotion and marketing of my book), and for the 10 years
`of hardship, poverty and humiliation at the hands of my peers.
`
`See Complaint, ECF No. 1 at 2-4. Attached to the complaint were copies of three checks: two for
`$0.72 each from Authorhouse and one for $150 from Rapid Publishing. Id.
`Author Solutions moved to dismiss the complaint, ECF No. 16, and the court granted the motion
`to dismiss on April 10, 2014, ECF No. 24. The court construed the complaint as possibly asserting
`the following claims: (1) copyright infringement in violation of 17 U.S.C. § 501(a); (2) injunctive
`relief; (3) breach of contract; and (4) conversion. See Order, ECF No. 24 at 2.
`The court dismissed the copyright infringement claim because it did not allege a plausible
`relationship between the damages sought and the plaintiff’s actual damages or clearly allege facts in
`support of the claim. Id. at 5-6. The court dismissed the injunctive relief claim because it was a
`remedy, rather than a separate cause of action. Id. at 6. The court dismissed the possible breach of
`contract and conversion claims because the complaint did not allege facts showing a contractual
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`C 14-00518 LB
`ORDER
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`2
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page3 of 7
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`relationship, breach, or how precisely Mr. Dodge was damaged. Id. at 7. Also, the statute of
`limitations would bar any claims that accrued more than three years before Mr. Dodge filed the
`complaint and there were no allegations to support equitable tolling or excusable delay. Id. The
`court dismissed the complaint with leave to amend within 28 days.
`On April 23, 2014, Mr. Dodge filed the FAC. See FAC, ECF No. 26. Like the original
`complaint, the FAC does not specify the claims or state allegations that explain the bases for Mr.
`Dodge’s alleged damages. See generally id.
`In the FAC, Mr. Dodge alleges the following:
`In my ten years of experience with Authorhouse, I have reached the conclusion that it is a
`criminal organization, and part of a much larger criminal organization which, in a perfect
`world, would be prosecuted under the RICO Act, for they, in their own words have, “helped
`20,000+ authors self publish their books,” while hundreds of whom have protested on the
`Internet, or at least those that have the wherewithall.
`FAC, ECF No. 26 at 1-2.
`The FAC alleges that Author Solutions falsely claimed to have stopped selling Mr. Dodge’s
`book. Id. at 2. Several factual allegations appear relevant to this claim. First, in February 2010, an
`Author Solutions representative told Mr. Dodge that he had sold 19 books in October. Id. at 3. She
`then changed her story and said he had not sold any books in the fourth quarter and her prior
`statement was based on a computer glitch. Id. Another representative said that Mr. Dodge “only
`had a one-percent royalty payment pending.” Id. Second, in 2009, a friend from Pittsburgh told Mr.
`Dodge, “Pittsburgh is going crazy over your book!” and Mr. Dodge does not believe this to be an
`anomaly. Id. at 2. Third, Stanford University Library acquired a copy of Mr. Dodge’s book. Id.
`Fourth, a dozen online vendors are currently selling the book, which many of them claim to have in
`stock. Id. Finally, Author Solutions sent Mr. Dodge three checks for $0.72 and he found this
`humiliating. Id.
`Mr. Dodge demands the return of “the seven original copies[3], and the galley for the 4th Revised
`Edition of, Acts of War: JESUS/ALEXANDER & JFK, with Clear, Credible and Convincing NEW
`
`3 This appears to be a reference to copies of documents Mr. Dodge found in the archives of
`the LBJ Presidential Library in Austin, Texas. See FAC at 2.
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`C 14-00518 LB
`ORDER
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`3
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page4 of 7
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`EVIDENCE!, and . . . $150,000, as allowed by law, in damages, restitution, and penalties . . . .” Id.
`at 2-3.
`On May 5, 2014, Author Solutions answered the complaint and filed a motion to dismiss.4 See
`Answer, ECF No. 27; Motion, ECF No. 28. Mr. Dodge filed an opposition, ECF No. 29, and Author
`Solutions replied, ECF No. 30.
`
`ANALYSIS
`
`I. LEGAL STANDARD
`A court may dismiss a complaint under Federal Rule of Civil Procedure 12(b)(6) when it does
`not contain enough facts to state a claim to relief that is plausible on its face. See Bell Atlantic Corp.
`v. Twombly, 550 U.S. 544, 570 (2007). “A claim has facial plausibility when the plaintiff pleads
`factual content that allows the court to draw the reasonable inference that the defendant is liable for
`the misconduct alleged.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009). “The plausibility standard
`is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
`defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 557.). “While a complaint
`attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
`obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and
`conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual
`allegations must be enough to raise a right to relief above the speculative level.” Twombly, 550 U.S.
`at 555 (internal citations and parentheticals omitted).
`In considering a motion to dismiss, a court must accept all of the plaintiff’s allegations as true
`and construe them in the light most favorable to the plaintiff. See id. at 550; Erickson v. Pardus, 551
`U.S. 89, 93-94 (2007); Vasquez v. Los Angeles County, 487 F.3d 1246, 1249 (9th Cir. 2007).
`If the court dismisses the complaint, it should grant leave to amend even if no request to amend
`is made “unless it determines that the pleading could not possibly be cured by the allegation of other
`facts.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (quoting Cook, Perkiss and Liehe, Inc.
`
`4 The court construes the motion to dismiss as a motion for judgment on the pleadings under
`Federal Rule of Civil Procedure 12(c). This does not alter the analysis.
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`C 14-00518 LB
`ORDER
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`4
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`

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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page5 of 7
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`v. Northern California Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)). But when a party
`repeatedly fails to cure deficiencies, the court may order dismissal without leave to amend. See
`Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (affirming dismissal with prejudice where
`district court had instructed pro se plaintiff regarding deficiencies in prior order dismissing claim
`with leave to amend).
`III. DISCUSSION
`As in the previous complaint, it is not clear exactly what legal claims Mr. Dodge is alleging.
`Accordingly, the court will address the most likely claims based on the allegations.
`A. Mr. Dodge Still Has Not Alleged Viable Copyright Infringement Claim
`In order to present a prima facie case of direct copyright infringement, a plaintiff must show
`ownership of the allegedly infringed material and demonstrate that the alleged infringers violate at
`least one exclusive right granted to copyright holders under 17 U.S.C. § 106. Perfect 10, Inc. v.
`Amazon.com, 508 F.3d 1146, 1159 (9th Cir. 2007). Here, the FAC does not allege facts showing
`that Mr. Dodge owns a valid copyright to Acts of War: Jesus/Alexander & JFK. Should Mr. Dodge
`file a Second Amended Complaint, he should state facts demonstrating that he holds a copyright to
`the book and not just that he is its author. Second, the FAC does not allege copyright infringement.
`Rather, it appears that Mr. Dodge has authorized Author Solutions to distribute his work and his
`complaint has to do with insufficient royalties. Finally, in the FAC, Mr. Dodge seeks $150,000 in
`damages. See FAC at 3. This may be a reference to the maximum statutory damages for willful
`infringement authorized by 17 U.S.C. § 504(c)(2). If that is the basis for Mr. Dodge’s damages, he
`must establish willfulness and tie the statutory damages to his actual damages, as discussed in the
`court’s previous order. See Order, ECF No. 24 at 5.
`B. Mr. Dodge’s Claim for Injunctive Relief Is Not a Separate Claim
`In the previous order, the court addressed Mr. Dodge’s demand for injunctive relief. See id. at 6.
`The FAC restates the same request. See FAC, ECF No. 26 at 2-3. As the court previously
`explained, injunctive relief “is a remedy, not a cause of action, and thus it must be tethered to some
`independent legal duty owed by the defendant.” Martone v. Burgess, No. C 08-2379 CW, 2008 WL
`3916022, at *3 (N.D. Cal. Aug. 25, 2008); see Marlin v. AIMCO Venezia, LLC, 154 Cal. App. 4th
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`C 14-00518 LB
`ORDER
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page6 of 7
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`154, 162 (2007). If Mr. Dodge files an amended complaint, he may seek the same relief but he must
`allege a legal claim that provides injunctive relief as a remedy and tie his request to that cause of
`action.
`C. Mr. Dodge’s State Law Claims
`To the extent Mr. Dodge’s claim is for breach of contract he must allege the legal elements and
`facts that plausibly support them. The elements of a breach of contract claim under California law
`are the following: (1) the existence of a contract; (2) plaintiff’s performance or excuse for non-
`performance; (3) defendant’s breach; and (4) resulting damage. See Oasis West Realty, LLC v.
`Goldman, 51 Cal. 4th 811, 821 (2011). The FAC does not allege any of these elements. As
`explained in the previous order, “Plaintiff must provide some factual allegations about his
`contractual relationship with Author Solutions, including whether there is a contract, how Author
`Solutions breached it, and information about how precisely Plaintiff was damaged.” Order, ECF No.
`24 at 7.
`To the extent Mr. Dodge’s claim is for conversion, which would include theft of royalties, he
`must allege the following elements: (1) plaintiff’s ownership or right to possession of the property at
`the time of the conversion; (2) defendant’s conversion by a wrongful act or disposition of plaintiff’s
`property rights; and (3) damages. See Harford Fin. Corp. v. Burns, 96 Cal. App. 3d 591, 598
`(1979). Here, Mr. Dodge alleges that Author Solutions sold some copies of his book. But he also
`alleges that they made royalty payments to him. The problem is he does not allege any facts
`establishing that he had a right to royalty payments in excess of the amount Author Solutions
`remitted. Instead, he alleges that some online retailers are selling his book, that a library purchased
`one copy, and that a friend told him “Pittsburgh is going crazy over your book!” See FAC at 2-3.
`These allegations are not enough to plausibly support a conversion claim. Also, in the previous
`order, the court explained that Mr. Dodge must allege some facts to overcome the statute of
`limitations bar. See Order, ECF No. 24 at 7. The FAC does not fix this problem.
`Finally, in its motion to dismiss, Author Solutions also argues that the FAC may attempt to
`allege a claim for intentional infliction of emotional distress. See Motion, ECF No. 28 at 7. In
`California, “[a] cause of action for intentional infliction of emotional distress exists when there is (1)
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`C 14-00518 LB
`ORDER
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`6
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`For the Northern District of California
`UNITED STATES DISTRICT COURT
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`Case3:14-cv-00518-LB Document31 Filed06/09/14 Page7 of 7
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`extreme and outrageous conduct by the defendant with the intention of causing, or reckless disregard
`of the probability of causing, emotional distress; (2) the plaintiff’s suffering severe or extreme
`emotional distress; and (3) actual and proximate causation of the emotional distress by the
`defendant’s outrageous conduct.” Kelley v. Conco Cos., 196 Cal. App. 4th 191, 215 (2011). “A
`defendant’s conduct is outrageous when it is so extreme as to exceed all bounds of that usually
`tolerated in a civilized community.” Id. (internal quotation marks omitted).
`Here, Mr. Dodge alleges only that Author Solutions employees laughed at him. See FAC at 3.
`To the extent the FAC asserts an intentional infliction of emotional distress claim, the factual
`allegations do not support any of the elements.
`CONCLUSION
`For the foregoing reasons, the court GRANTS Author Solutions’ motion to dismiss. The court
`will permit Mr. Dodge one more chance to state legal claims that are supported by sufficient factual
`allegations. He must file any amended complaint within 28 days.
`This disposes of ECF No. 28.
`IT IS SO ORDERED.
`Dated: June 9, 2014
`
`_______________________________
`LAUREL BEELER
`United States Magistrate Judge
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
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`C 14-00518 LB
`ORDER
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