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`v.
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`PENGUIN RANDOM HOUSE,
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`Defendant.
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`EVA A. WEBB WRIGHT,
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`Plaintiff,
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF TENNESSEE
`AT CHATTANOOGA
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`Case No. 1:18-cv-38
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`Judge Travis R. McDonough
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`Magistrate Judge Susan K. Lee
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`MEMORANDUM OPINION
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`Before the Court are: (1) Defendant Penguin Random House’s (“PRH”) motion to
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`dismiss for failure to state a claim (Doc. 17); (2) Plaintiff’s “Motion: Memorandum for Denying
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`Dismissal of Defendants” (Doc. 23); and (3) Plaintiff’s “Motion to deny defendant’s motion to
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`dismiss” (Doc. 26). For the following reasons, Defendant’s motion to dismiss (Doc. 17) will be
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`GRANTED. Plaintiff’s motions (Docs. 23, 26) will be DENIED AS MOOT.
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`I.
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`BACKGROUND
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`According to Plaintiff, she uploaded her personal memoir to a website years before the
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`novel Fifty Shades of Grey was published. (Doc. 1, at 4–5.) Plaintiff alleges that Amanda
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`Hayward1 emailed Plaintiff on March 30, 2005, asking her if her story was real or fiction.
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`Plaintiff alleges that, some time later, but before the publication of Fifty Shades of Grey in any
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`format, her memoir “was contracted to third party publishing companies of Lulu and Amazon,”
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`1 Plaintiff filed a related action, Wright v. The Writer’s Coffee Shop, LLC et al., No. 1:17-CV-
`00355 (E.D. Tenn. filed Dec. 27, 2017), against Amanda Hayward, one of the publishers of the
`print-on-demand and e-book versions of Fifty Shades of Grey, by E.L. James, whose legal name
`is Erika Mitchell Leonard. The other defendants include The Writers Coffee Shop, LLC, Ms.
`Leonard, Jennifer Lyn Pedroza, and Crista Beebe.
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`and Plaintiff had sold one copy, earning royalties of $3.75. (Id. at 4.) Plaintiff alleges that when
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`she contacted PRH about the “piracy” of her memoir, PRH “proceeded to argue it was
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`impossible and their client had never been to [Plaintiff’s] site before.” (Id. at 5.) Plaintiff seeks
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`damages to compensate her for her lost royalties and physical and emotional harm, as well as an
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`injunction against further sales of the Fifty Shades of Grey trilogy. (Id.)
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`On February 27, 2018, Plaintiff filed her pro se complaint against PRH in this Court,
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`asserting various state-law claims arising from Defendant’s publication of the Fifty Shades
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`trilogy,2 which she believes infringes upon her rights in her memoir. Plaintiff seeks to enjoin
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`PRH from selling the Fifty Shades series; she also seeks “full and proper credit . . . for pirated
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`story” and money damages for lost profits and “physical and emotional harm” suffered by
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`Plaintiff and her family. (Doc. 1, at 5.) On July 23, 2018, PRH filed a motion to dismiss
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`Plaintiff’s complaint. (Doc. 17.) Plaintiff filed responses in opposition to Defendant’s motion to
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`dismiss (Docs. 23, 26) on August 9, 2018, and August 29, 2018. Defendant replied on August
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`16, 2018 (Doc. 25). Defendant’s motion (Doc. 17) is now ripe for review.
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`II.
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`STANDARD OF LAW
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`Rule 8 of the Federal Rules of Civil Procedure requires a plaintiff’s complaint to contain
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`“a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R.
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`Civ. P. 8(a)(2). Though the statement need not contain detailed factual allegations, it must
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`contain “factual content that allows the court to draw the reasonable inference that the defendant
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`is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 8
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`“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
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`2 The Court takes judicial notice, under Federal Rule of Evidence 201(b), that PRH published the
`Fifty Shades trilogy on the following dates: Fifty Shades of Grey was published on May 25, 2011;
`Fifty Shades Darker on September 13, 2011; and Fifty Shades Freed on January 17, 2012. See
`United States Copyright Office, Public Catalog, https://cocatalog.loc.gov (last visited Nov. 1, 2018).
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`2
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`A defendant may obtain dismissal of a claim that fails to satisfy Rule 8 by filing a motion
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`pursuant to Rule 12(b)(6). On a Rule 12(b)(6) motion, the Court considers not whether the
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`plaintiff will ultimately prevail, but whether the facts permit the court to infer “more than the
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`mere possibility of misconduct.” Iqbal, 556 U.S. at 679. For purposes of this determination, “all
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`well-pleaded material allegations of the pleadings of the opposing party must be taken as true,
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`and the motion may be granted only if the moving party is nevertheless clearly entitled to
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`judgment.” Tucker v. Middleburg-Legacy Place, 539 F.3d 545, 549 (6th Cir. 2008) (quoting
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`JPMorgan Chase Bank, N.A. v. Winget, 510 F.3d 577, 581 (6th Cir. 2007)). This assumption of
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`veracity, however, does not extend to bare assertions of legal conclusions, Iqbal, 556 U.S. at 679,
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`nor is the Court “bound to accept as true a legal conclusion couched as a factual allegation.”
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`Papasan v. Allain, 478 U.S. 265, 286 (1986). A pleading that offers “labels and conclusions” or
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`“a formulaic recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678
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`(citing Twombly, 550 U.S. at 555).
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`The Court notes that Plaintiff is proceeding in this action pro se. The Court is mindful
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`that pro se complaints are liberally construed and are held to less stringent standards than the
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`formal pleadings prepared by attorneys. Haines v. Kerner, 404 U.S. 519, 520 (1972); Bridge v.
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`Ocwen Fed. Bank, 681 F.3d 355, 358 (6th Cir. 2012). The Court is “not, [however,] require[d]
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`to either guess the nature of or create a litigant’s claim.” See, e.g., Leeds v. City of Muldraugh,
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`174 F. App’x 251, 255 (6th Cir. 2006). Likewise, “liberal treatment of pro se pleadings does not
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`require lenient treatment of substantive law,” and ultimately, those who proceed without counsel
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`must still comply with the procedural rules that govern civil cases, including the pleading
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`standards set forth in Rule 8(a) of the Federal Rules of Civil Procedure. Durante v. Fairlane
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`Town Ctr., 201 F. App’x 338, 344 (6th Cir. 2006); Whitson v. Union Boiler Co., 47 F. App’x
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`3
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`757, 759 (6th Cir. 2002); Kafele v. Lerner, Sampson, Rothfuss, L.P.A., 161 F. App’x 487, 491
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`(6th Cir. 2005) (“[P]ro se litigants are not relieved of the duty to develop claims with an
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`appropriate degree of specificity.”). Thus, although the standard of review for pro se litigants is
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`liberal, it requires more than the bare assertion of legal conclusions. Lillard v. Shelby Cty. Bd. of
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`Educ., 76 F.3d 716, 726 (6th Cir. 1996).
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`After sorting the factual allegations from the legal conclusions, the Court next considers
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`whether the factual allegations, if true, would support a claim entitling the plaintiff to relief.
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`Thurman v. Pfizer, Inc., 484 F.3d 855, 859 (6th Cir. 2007). This factual matter must “state a
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`claim to relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
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`(2007). Plausibility “is not akin to a ‘probability requirement,’ but it asks for more than a sheer
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`possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550
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`U.S. at 556). “[W]here the well-pleaded facts do not permit the court to infer more than the mere
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`possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader
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`is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).
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`III. ANALYSIS
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`Defendant seeks to dismiss all of Plaintiff’s claims, arguing that they are preempted by
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`the United States Copyright Act and, even if not preempted, they fail to state a claim against
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`Defendant. (Doc. 17.) Defendant interprets Plaintiff’s complaint as “assert[ing] state-law claims
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`alleging violation of her statutory right of publicity, tortious interference with contractual
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`relations and prospective business relations, negligent and intentional infliction of emotional
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`distress, and harassment.” (Doc. 17, at 1.)
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`4
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`A. Claims Arising from PRH’s Alleged Use of Plaintiff’s Memoir
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`To the extent that Plaintiff asserts state-law causes of action arising from PRH’s alleged
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`use of her memoir without her permission and without compensating her, these claims are
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`preempted by the United States Copyright Act. The Copyright Act preempts “all legal or
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`equitable rights that are equivalent to any of the exclusive rights within the general scope of
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`copyright . . . .” 17 U.S.C. § 301(a). The U.S. Court of Appeals for the Sixth Circuit has
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`explained that the Copyright Act “is unusually broad in its assertion of federal authority [in that
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`it] converts all state common or statutory law ‘within the general scope of copyright’ into federal
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`law . . . .” Ritchie v. Williams, 395 F.3d 283, 286 (6th Cir. 2005).
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`Courts apply the “functional test” requirements of “subject matter” and equivalency to
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`determine if a state-law claim is preempted by the Copyright Act. See, e.g., Stanford v. Caesars
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`Entm’t, Inc., 430 F. Supp. 2d 749, 757–59 (W.D. Tenn. 2006). For example, in Wells v.
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`Chattanooga Bakery, Inc., the Tennessee Court of Appeals held that all claims based on
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`defendant’s advertisement using Plaintiff’s image without compensation were preempted by the
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`Copyright Act because there was “no distinction between the rights [asserted in the plaintiff’s
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`state-law claim] and the exclusive rights granted under the Copyright Act because his claim . . .
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`depend[ed] solely on [the defendants’] purported failure to compensate him for the allegedly
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`unauthorized reproduction.” 448 S.W.3d 381, 389, 391–92 (Tenn. Ct. App. 2014).
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`Because Plaintiff’s claims of violation of her statutory right of publicity, tortious
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`interference with economic advantage, and/or commercial misappropriation “depend[ ] solely”
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`on Defendant’s alleged use of her original work without permission or compensation, id., these
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`state-law claims are preempted by the Copyright Act. See Stromback v. New Line Cinema, 384
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`F.3d 283, 306 (6th Cir. 2004).
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`5
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`However, to the extent Plaintiff’s allegations state a cause of action under the Copyright
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`Act, she may not assert such an action without alleging that she has a registered copyright for her
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`memoir or, perhaps, that she has applied for one. See 17 U.S.C. § 411(a); Fourth Estate Public
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`Benefit Corp. v. Wall-street.com, LLC, 856 F.3d 1338 (11th Cir. 2017), cert granted, No. 17-571,
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`2018 WL 3148286 (U.S. June 28, 2018) (granting certiorari following circuit split over whether
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`a plaintiff can bring suit while copyright registration application is pending).
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`In sum, regarding Plaintiff’s allegations related to PRH’s alleged use of her memoir, she
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`has not stated a cause of action under state law because those claims are preempted by the
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`Copyright Act. Plaintiff also fails to state a claim under the Copyright Act because she lacks a
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`registered copyright—or even a pending copyright registration application.
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`B. Claims Arising from PRH’s Other Alleged Acts
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`The facts asserted are insufficient to support claims of malicious harassment, Tennessee
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`Code Annotated § 4-21-101, intentional infliction of emotional distress, see Rogers v. Louisville
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`Land Co., 367 S.W.3d 196, 205 (Tenn. 2012) (listing elements), or negligent infliction of
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`emotional distress, see id. at 206 (listing elements), against PRH. Plaintiff states:
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`Defendant and their clients have tortiously interfered with Plaintiff and her
`family’s limited financial resources, the health and well-being of Plaintiff
`and her family from undue stress . . . . After contacting Random House
`about the piracy plaintiff’s hair started falling out from the stress and
`developed medical condition of Stress induced lesions . . . . While
`continuously being cyber stalked by defendant’s client Erika Mitchell
`Leonard and entire Mitchell and Leonard family and through repeated
`frequent Facebook friend requests while plaintiff is trying to recover.
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`(Doc. 1, at 5.)
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`Plaintiff alleges “cyber stalk[ing]” and “repeated frequent Facebook friend requests,” but
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`she attributes this activity to PRH’s clients and their families, not to any agents of PRH. (Id.)
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`Therefore, these actions do not state a claim for relief against PRH. Indeed, Plaintiff only
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`6
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`mentions one interaction with Defendant, when she contacted Defendant “about the piracy.”
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`(Id.) Plaintiff states that Defendant responded by “argu[ing] that it was impossible.” (Id.)
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`Malicious harassment under the Tennessee Human Rights Act, Tennessee Code
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`Annotated § 4-21-101, “requires not only that a person acted maliciously . . . but also that a
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`person unlawfully intimidated another from the free exercise or enjoyment of a constitutional
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`right by injuring or threatening to injure or coercing another person or by damaging, destroying
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`or defacing any real or personal property of another person.” Washington v. Robertson Cty., 29
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`S.W.3d 466, 473 (Tenn. 2000). In addition, to state a claim for malicious harassment, a plaintiff
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`must allege that the harassment was motivated by the victim’s “race, color, ancestry, religion, or
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`national origin.” Blaque v. Renaissance Healthcare Grp., LLC, No. 3:11-CV-456, 2011 WL
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`5828024, at *1 (E.D. Tenn. Nov. 18, 2011). To survive a motion to dismiss, Plaintiff must
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`present facts that state a “plausible” claim to relief. Twombly, 550 U.S. at 570. It was Plaintiff
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`who allegedly initiated the contact with PRH, and there is no allegation of further contacts
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`initiated by PRH. PRH’s alleged conduct cannot be plausibly characterized as “threatening” or
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`“coercing,” Robertson Cty., 29 S.W.3d at 473, and Plaintiff does not allege that PRH’s conduct
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`was motivated by her “race, color, ancestry, religion, or national origin,” Blaque, 2011 WL
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`5828024, at *1.
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`Plaintiff’s claims are also insufficient to support a claim for either intentional or negligent
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`infliction of emotional distress. The elements of intentional infliction of emotional distress are
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`“that the defendant’s conduct was (1) intentional or reckless, (2) so outrageous that it is not
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`tolerated by civilized society, and (3) resulted in serious mental injury to the plaintiff.”
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`Louisville Land Co., 367 S.W.3d at 205. Plaintiff alleges that PRH responded to her phone call
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`by dismissing her contentions as “impossible.” (Doc. 1, at 5.) Even if such conduct was
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`7
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`intentional and even if it caused Plaintiff “serious mental injury,” the claim fails because PRH’s
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`alleged conduct cannot be plausibly characterized as “so outrageous that it is not tolerated by
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`civilized society.” Louisville Land Co., 367 S.W.3d at 205. The defendant’s conduct must be
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`“so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of
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`decency and to be regarded as atrocious, and utterly intolerable in a civilized community.” Miller
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`v. Willbanks, 8 S.W.3d 607, 614 (Tenn. 1999). The “types of acts that occur in virtually every
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`dispute,” such as PRH’s alleged statements by telephone, do not “even begin to rise to the level
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`of being so outrageous in character . . . as to go beyond all bounds of decency . . . .” O’Dell v.
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`O’Dell, 303 S.W.3d 694, 696–97 (Tenn. Ct. App. 2008) (internal quotation marks omitted)
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`(dismissing a complaint for failure to state a claim where a defendant visited plaintiff’s residence
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`and “verbally assaulted” him regarding their limited liability corporation). Plaintiff’s allegations
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`concerning PRH’s conduct do not support a claim of intentional infliction of emotional distress.
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`A claim of negligent infliction of emotional distress must allege breach of a duty owed by
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`the defendant to the plaintiff, causation in fact, proximate causation, injury or loss, and a serious
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`mental injury caused by the defendant’s conduct. Louisville Land Co., 367 S.W.3d at 206.
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`Plaintiff has failed to allege any duty owed to her by PRH. Therefore, Plaintiff fails to state a
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`claim for negligent infliction of emotional distress.
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`Accordingly, the Court will GRANT Defendant’s motion to dismiss Plaintiff’s claims.
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`IV. CONCLUSION
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`For the foregoing reasons, Defendant’s Rule 12(b)(6) motion to dismiss (Doc. 17) is
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`GRANTED. Plaintiff’s motions (Docs. 23, 26) are DENIED AS MOOT.
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`8
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`AN APPROPRIATE JUDGMENT WILL ENTER.
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`/s/ Travis R. McDonough
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`TRAVIS R. MCDONOUGH
`UNITED STATES DISTRICT JUDGE
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`9
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