Plaintiffs,
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`ORIGINAL JUAN AND SPICIN FOODS,
`et al.,
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`Case No. 21-2500-DDC-TJJ
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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF KANSAS
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`COURTNEY RICHMOND, et al.,
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` Defendants.
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`_____________________________________
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`MEMORANDUM AND ORDER
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`Pro se plaintiffs Courtney Richmond and Chef Courtney’s Homemade BBQ sauce1 filed
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`this lawsuit in the District of Nebraska. Doc. 1. The Nebraska federal court granted plaintiffs’
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`Motion for Leave to Proceed In Forma Pauperis. Doc. 5. And, in that Order, the Nebraska court
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`advised that “the next step in [the] case will be for the court to conduct an initial review of
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`[plaintiffs’] claims to determine whether summary dismissal is appropriate under 28 U.S.C. §
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`1915(e)(2).” Id. at 1. And, the court said it “will conduct this initial review in its normal course
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`of business.” Id. Later, the Nebraska court found that it was an improper venue for plaintiffs’
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`lawsuit and it transferred the action to our court. See generally Doc. 10.
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`After transfer, Magistrate Judge Teresa James issued a first Show Cause Order (Doc. 14)
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`to plaintiff Courtney Richmond. Judge James’s Order explained that federal jurisdiction is not
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`1
`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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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 2 of 6
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`stated clearly on the face of the Complaint. So, Judge James ordered plaintiff Courtney
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`Richmond to show cause why the district court shouldn’t dismiss this action for lack of subject
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`matter jurisdiction. Id. at 2–3. Mr. Richmond filed a Response to the Show Cause Order (Doc.
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`15). But it didn’t provide any more clarity about subject matter jurisdiction.
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`So, the court issued a Second Notice and Order to Show Cause (Doc. 17). It again
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`directed plaintiff Courtney Richmond to show cause why the court should not dismiss this case
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`for lack of subject matter jurisdiction. Mr. Richmond has filed a Response to that second Show
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`Cause Order. Doc. 18. The court considers below whether Mr. Richmond has alleged proper
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`subject matter jurisdiction. Liberally construing Mr. Richmond’s filings, the court finds that he
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`has alleged that the court has subject matter jurisdiction over this copyright “infringement”
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`action. Id. at 1. Then, the court proceeds to screen the Complaint under 28 U.S.C. § 1915(e)(2),
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`concluding that plaintiffs’ Complaint fails to allege a plausible claim under any federal copyright
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`law. Thus, the court dismisses this lawsuit without prejudice.
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`Subject Matter Jurisdiction
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`Liberally construed, Mr. Richmond alleges claims for “conversion of property[,]”
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`“infringement[,]” and “breach of contract.” Doc. 18 at 1, 5. But still, he never explains
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`explicitly how the court has subject matter jurisdiction over his case. As the court explained in
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`its second Show Cause Order, “[t]here are two statutory bases for federal subject-matter
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`jurisdiction: diversity jurisdiction under 28 U.S.C. § 1332 and federal-question jurisdiction
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`under 28 U.S.C. § 1331.” Nicodemus v. Union Pac. Corp., 318 F.3d 1231, 1235 (10th Cir.
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`2003). And, the party invoking federal jurisdiction bears the burden of showing subject matter
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`jurisdiction exists. Penteco Corp. v. Union Gas Sys., Inc., 929 F.2d 1519, 1521 (10th Cir. 1991).
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`2
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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 3 of 6
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`Mr. Richmond hasn’t established diversity jurisdiction under 28 U.S.C. § 1332. Despite
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`the court’s previous instructions, he still alleges nothing about the parties’ citizenship or the
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`amount in controversy sufficient to invoke the court’s diversity jurisdiction. So, Mr. Richmond
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`has failed to allege that the court has diversity subject matter jurisdiction.
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`But, affording Mr. Richmond’s filings a very liberal construction, the court finds that he
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`has alleged federal question jurisdiction under 28 U.S.C. § 1331. Although it is still “far from
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`clear[,]” Doc. 14 at 2, it appears that Mr. Richmond is asserting a claim under the federal
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`copyright laws for copyright infringement. Mr. Richmond doesn’t invoke any federal statute or
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`explicitly identify the federal cause of action he is asserting. Nevertheless, the court liberally
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`construes his filings and finds that it alleges the court has federal question jurisdiction under 28
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`U.S.C. § 1331.
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`Screening Under 28 U.S.C. § 1915(e)(2)
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`As already explained, plaintiffs proceed in forma paupers (“IFP”) in this case. See Doc. 5
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`(granting motion for leave to proceed IFP but deferring screening under 28 U.S.C. § 1915(e)(2)).
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`Under 28 U.S.C. § 1915(e)(2), the court must consider the merits of all cases in which a plaintiff
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`proceeds IFP, and must dismiss any action that it determines “fails to state a claim on which
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`relief may be granted[.]” 28 U.S.C. § 1915(e)(2)(B)(ii). To determine whether a pro se plaintiff
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`states a plausible claim, the “standard of review for dismissals under § 1915(e)(2)(B)(ii)” is the
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`same as “Federal Rule of Civil Procedure 12(b)(6) motions to dismiss for failure to state a
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`claim.” Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007). “[A] complaint must contain
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`sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
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`Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
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`570 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere
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`3
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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 4 of 6
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`conclusory statements,” are insufficient to state a claim. Id. The court “accept[s] the facts
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`alleged in the complaint as true and view[s] them in the light most favorable to the plaintiff.”
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`Mayfield v. Bethards, 826 F.3d 1252, 1255 (10th Cir. 2016).
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`Plaintiffs’ Complaint Fails to State a Claim
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`Liberally construing the Complaint and plaintiffs’ other filings as ones asserting a claim
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`under the federal copyright laws, the court finds that plaintiffs fail to state a plausible claim for
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`relief. As already noted, neither the Complaint nor any of the other filings invoke a federal
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`statute to support a copyright infringement claim. Instead, the filings just repeatedly accuse
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`defendants of using “copyrighted” ingredients for a barbeque sauce. See Doc. 1 at 2 (accusing
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`defendants “of stealing and infringing his property”); see also Doc. 15 at 1 (alleging defendants
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`“began using the plaintiffs[’] ingredients copyrighted before agreement”); see also Doc. 18 at 4
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`(asserting that Mr. Richmond “has ownership copyrights . . . making [him] the real owner of the
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`recipe and ingredients used to make” the barbeque sauce). But, plaintiffs haven’t identified any
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`copyright that they own on the ingredients used in the barbeque sauce. And, as previously
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`explained, a “mere listing of ingredients” is “not subject to copyright[.]” Doc. 17 at 3 n.3 (first
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`citing 37 C.F.R. § 202.1(a); then citing Publ’ns Int’l, Ltd. v. Meredith Corp., 88 F.3d 473, 480
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`(7th Cir. 1996) (holding that “identification of ingredients necessary for the preparation of each
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`dish is a statement of facts” and is not subject to copyright); then citing Dow Jones & Co. v. Bd.
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`of Trade of City of Chi., 546 F. Supp. 113, 116 (S.D.N.Y. 1982) (explaining that lists of
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`ingredients aren’t subject to copyright protection, thus courts deny copyright protection to lists of
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`ingredients on the labels of food products (citations omitted))).
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`Mr. Richmond has alleged that he has a copyright on a “barbecue sauce label[.]” Doc. 15
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`at 2; see also id. at 3 (Certificate of Registration from the United States Copyright Office for
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`4
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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 5 of 6
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`“Courtney Richmond Projects” including “BBQ Sauce Label” for “photograph” and “2-D
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`artwork”); Doc. 18 at 1 (alleging that Mr. Richmond “copyrighted his labels with the same
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`ingredients used to make his” sauce). But, plaintiffs never allege any facts supporting a federal
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`cause of action based on this copyrighted artwork. Thus, plaintiffs have failed to allege a
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`plausible claim for copyright infringement.
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`As a consequence, plaintiffs’ Complaint “fails to state a claim on which relief may be
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`granted” under federal law.2 28 U.S.C. § 1915(e)(2)(B)(ii). And, § 1915(e)(2)(B)(ii) requires
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`the court to dismiss the case. See id. (directing that “the court shall dismiss the case at any time
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`if the court determines that” a plaintiff proceeding IFP “fails to state a claim on which relief may
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`be granted” (emphasis added)). Thus, the court dismisses plaintiffs’ Complaint under
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`§ 1915(e)(2)(B)(ii) and without prejudice.
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`Also, the court denies as moot the Motion for Hearing (Doc. 19). Mr. Richmond’s
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`Response to the second Show Cause Order requests “a hearing and Jury Demand” and “if not
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`that[,] a settlement for the breach of contract before the 2 year contract ended or severed.” Doc.
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`19 at 5. Because plaintiffs have failed to state a plausible federal cause of action, the court
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`dismisses this lawsuit. In light of the dismissal, no hearing is required or warranted here. The
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`court thus dismisses the request for a hearing as moot.
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`2
`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)).
`5
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`Case 2:21-cv-02500-DDC-TJJ Document 20 Filed 01/11/22 Page 6 of 6
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`IT IS THEREFORE ORDERED BY THE COURT THAT plaintiff’s Complaint is
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`dismissed without prejudice under 28 U.S.C. § 1915(e)(2)(B)(ii), for failing to state a claim for
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`relief.
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`IT IS FURTHER ORDERED THAT plaintiff Courtney Richmond’s “Motion for
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`Hearing” (Doc. 19) is denied as moot.
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`IT IS SO ORDERED.
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`Dated this 11th day of January, 2022, at Kansas City, Kansas.
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`s/ Daniel D. Crabtree
`Daniel D. Crabtree
`United States District Judge
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`6
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