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Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 1 of 12
`United States District Court
`Southern District of Texas
`ENTERED
`July 28, 2021
`Nathan Ochsner, Clerk
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF TEXAS
`HOUSTON DIVISION
`
`JENTRY KELLEY,
`
`Plaintiff,
`
`v.
`
`DI ANGELO PUBLICATIONS, INC.,
`
`Defendant.
`
`§
`§
`§
`§
`§
`§
`§
`§
`§
`
`CIVIL ACTION NO. H-21-1666
`
`MEMORANDUM OPINION AND ORDER
`
`Plaintiff Jentry Kelley ("Plaintiff") filed this action on
`
`November 7, 2018, against defendant Di Angelo Publications, Inc.
`
`("Defendant") in the 270th District Court of Harris County, Texas,
`
`asserting claims
`
`for
`
`(1) violations of
`
`the Deceptive Trade
`
`Practices Act
`
`("DTPA"),
`
`(2) breach of contract,
`
`(3) common-law
`
`fraud, and (4) fraud by nondisclosure. 1 Defendant filed a Notice
`
`of Removal on May 20, 2021. 2 Pending before the court is Plaintiff
`
`Jentry Kelley's Motion to Remand ("Plaintiff's Motion to Remand")
`
`(Docket Entry No. 7) ,
`
`to which Defendant has filed Defendant
`
`Di Angelo Publications,
`
`Inc. 's Opposition: · to Plaintiff Jentry
`
`Kelley's Motion to Remand ("Defendant's Response")
`
`(Docket Entry
`
`to Notice of
`1 Plaintiff's Original Petition, Exhibit 2H
`Removal, Docket Entry No. 1-10, pp. 5-9 ~~ 16-51. All page numbers
`for docket entries in the record refer to the pagination inserted
`at the top of the page by the court's electronic filing system,
`CM/ECF.
`
`2Notice of Removal, Docket Entry No. 1.
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 2 of 12
`
`No. 8). For the reasons stated below, Plaintiff's Motion to Remand
`
`will be granted.
`
`I. Factual Allegations and Procedural Background
`
`Plaintiff is the owner of a makeup line based in Houston,
`
`Texas. 3 Defendant is a publishing company incorporated in Texas. 4
`
`This case arises from a contract (the "Contract") between Plaintiff
`
`and Defendant under which Defendant agreed to publish a book
`
`entitled "Hooker to Looker: A Makeup Guide for the Not So Easily
`
`Offended" (the "Book") . 5 Plaintiff states that she wrote the Book, 6
`
`while Defendant states that it ghostwrote the Book. 7
`
`On November 7, 2018, Plaintiff filed suit against Defendant in
`
`the 270th District Court of Harris County, Texas, asserting claims
`
`for DTPA violations, breach of contract, common-law fraud, and
`
`fraud by non-disclosure. 8 Plaintiff claimed that Defendant had
`
`3 Plaintiff's Second Amended Petition, Exhibit 2A to Notice of
`RE;=moval, Docket Entry No. 1-3, p. 3 ~ 6; Defendant's Answer,
`Affirmative Defenses and Request for Declaratory Judgment
`in
`Response
`to Plaintiff's Second Amended Petition
`("Defendant's
`Answer") , Docket Entry No. 3, p. 2 ~ 6.
`
`4Plaintiff's Second Amended Petition, Exhibit 2A to Notice of
`Removal, Docket Entry No. 1-3, p. 2 ~ 2.
`
`5 Plaintiff's Motion to Remand, Docket Entry No. 7, p. 1 ~ 1.
`
`6Plaintiff's Original Petition,
`Removal, Docket Entry No. 1-10, p. 4 ~
`
`Exhibit
`10.
`
`2H
`
`to Notice of
`
`7Notice of Removal, Docket Entry No. 1, p. 2 ~· 4.
`
`8Plaintiff's Originai Petition, Exhibit 2H
`Removal, Docket Entry No. 1-10, pp. 5-9 ~~ 16-51.
`
`to Notice of
`
`-2-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 3 of 12
`
`"concealed or otherwi~e failed
`
`to disclose actual costs
`
`to
`
`[Plaintiff] " 9 and had demanded payments from Plaintiff that were
`
`not supported by . any agreement or legal principle. 10 Plaintiff
`
`claimed that under the Contract, "actual costs were to be deducted
`
`from gross revenue before a split of the net revenues between the
`
`parties [,] " but "Defendant materially breached the contract by
`
`concealing a markup on
`
`the costs, payable
`
`to Defendant" and
`
`deceptively treated the markup as part of the cost of publication. 11
`
`In other words, Plaintiff claimed that "Defendant was not passing
`
`on actual costs but inf lated costs marked up
`
`to Defendant's
`
`advantage." 12
`
`On
`
`January
`
`11,
`
`2020, Di Angelo Publications,
`
`Inc.
`
`( "Di Angelo") commenced suit against Jentry Kelley ("Kelley") in
`
`the Southern District of Texas, arguing that the court had original
`
`jurisdiction under the Copyright Act because Di Angelo was seeking
`
`a declaratory judgment as to ownership of copyrights in the Book.
`
`Di Angelo Publications,
`
`Inc. v. Jentry Kelley; Civil Action
`
`No. H-20-115, 2020 WL 5884659, at *1 (S.D. Tex. Aug. 28, 2020)
`
`March 19, 2020, Kelley moved to dismiss
`
`the suit.
`
`On
`
`On
`
`August 28, 2020,
`
`the Honorable David Hittner granted Kelley's
`
`9 Id. at 4 ~ 12.
`lOid. at 5 ~ 15.
`
`11Id. at 7 ~, 27, 29.
`
`12):d. at 8 ~ 43.
`
`-3-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 4 of 12
`
`motion
`
`to dismiss, holding
`
`that "the disputed ownership and
`
`authorship of the Book hinges on the terms of the Contract[,]" that
`
`Di Angelo's claim therefore involved a question of state and not
`
`federal law, and that the court lacked subject matter jurisdiction.
`
`Id. at *2. Di Angelo appealed the dismissal to the Fifth Circuit
`
`Court of Appeals, ~nd oral arguments were held on April 26, 2021.
`
`A decision is pending. 13
`
`On May 6, 2021, Plaintiff served Defendant a Second Amended
`
`Petition, 14
`
`in which Plaintiff requested for the first time a
`
`declaration that "Plaintiff is the sole author and sole copyright
`
`owner of the Book." 15 On May 20, 2021, Defendant filed a Notice of
`
`Removal, arguing that the new request for declaratory relief
`
`implicated the federal Copyright Act . 16 Plaintiff filed the pending
`
`Motion to Remand on June 18, 2021; 17 Defendant filed a Response on
`
`June 29, 2021; 18 and Plaintiff filed a Reply on July 6, 2021. 19
`
`13 Plaintiff' s Motion to Remand, Docket Entry No. 7, p. 3 ~ 4;
`Notice of Removal, Docket Entry No. 1, p. 2 ~ 6.
`
`14Plaintiff's Second Amended Petition, Exhibit 2A to Notice of
`Removal, Docket Entry No. 1-3, p. 13.
`
`15 Ig_,_ at.10 ~ 58.C.
`
`16Notice :Of Removal, Docket Entry No. 1, pp. 2 - 3 ~ 7 .
`
`17Plaintiff's Motion to Remand, Docket Entry.No. 7.
`
`18Def end.;:i.nt' s Response, Docket Entry No. 8.
`
`19Plaintiff Jentry Kelley's Reply to Defendant's Opposition to
`Plaintiff's Motion to Remand, Docket Entry No. 9.
`
`-4-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 5 of 12
`
`II. Plaintiff's Motion to Remand
`
`A.
`
`Standard of Review
`
`Except as otherwise expressly provided.by Act of Congress, a
`
`defendant or defendants in a civil action brought in a state court
`
`may remove the action to federal court if the action is one over
`
`which the district court? of the United States have original
`
`jurisdiction.
`
`28 U.S.C. § 1441(a). Federal district courts have
`
`original jurisdiction over "all civil actions arising under the
`
`Constitution, laws, or treaties of the United States."
`
`28 U.S.C.
`
`§ 1331.
`
`"[A] suit arises under the Constitution and laws of the
`
`United States only when the plaintiff's statement of his own cause
`
`of action shows
`
`that it is based upon
`
`those
`
`laws or that
`
`Constitution." Louisville & Nashville Railroad Co. v. Mottlev, 29
`
`S. Ct. 42, 43 (1908). Generally, "[t]he presence or absence of
`
`federal-question jurisdiction is governed by the
`
`'well-pleaded
`
`complaint rule,' which provides that federal jurisdiction exists
`
`only when a federal question is presented on the face of the
`
`plaintiff's properly pleaded complaint." Caterpillar Inc. v.
`
`Williams, 107 S. Ct. 2425, 2429 (1987).
`
`"Since a defendant may
`
`remove a case only if the claim could have been brought in federal
`
`court,
`
`the question for removal jurisdiction must also be
`
`determined by reference to the 'well-pleaded complaint.'" Merrell
`
`Dow Pharmaceuticals Inc. v. Thompson, 106 S. Ct. 3229, 3232 (1986).
`
`"The removing party bears the burden of showing that federal
`
`jurisdiction exists and that removal was proper." Manguno v.
`
`-5-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 6 of 12
`
`Prudential Property and Casualty Insurance Co., 276 F.3d 720, 723
`
`(5th Cir. 2002). Because removal jurisdiction raises significant
`
`federalism concerns,
`
`the removal statute is strictly construed,
`
`"and any doubt about the propriety of removal must be resolved in
`
`favor of remand." Gasch v. Hartford Accident &·Indemnity Co., 491
`
`F.3d 278, 281-82 (5th Cir. 2007).
`
`B.
`
`No Jurisdiction Under the Copyright Act
`
`Federal district courts have original jurisdiction over any
`
`civil action arising under the Copyright Act. 28 U.S.C. § 1338(a).
`
`An action "arises under" the Copyright Act if and only if the
`
`complaint:
`
`( 1) "is for a remedy expressly granted by the Act[,] "
`
`( 2) "asserts a claim requiring constructi [on] of the Act," or
`
`(3) "presents a case where a distinctive policy of the Act requires
`
`that federal principles control the disposi tiori of the claim."
`
`Goodman v. Lee, 815 F.2d 1030, 1031 (5th Cir. 1987) (quoting T.B.
`
`Harms Co. v. Eliscu, 339 F.2d 823, 828
`
`(2d Cir. 1964), cert.
`
`denied, 85 S. Ct. 1534 (1965)).
`
`Plaintiff does not seek a
`
`remedy expressly granted by the
`
`Copyright Act, and Defendant does not argue that a distinctive
`
`policy of the Act requires that federal principles control the
`
`disposition of Plaintiff's claim.
`
`Instead, Defendant argues that
`
`Plaintiff's claims require construction of the Copyright Act. 20
`
`16
`p.
`8,
`Response, Docket Entry No.
`20Defendant' s
`( "Establishing Kelley's right will require interpreting federal
`law
`. ") .
`·
`
`-6-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 7 of 12
`
`This is the same basis for federal jurisdiction that the Fifth
`
`Circuit relied on in Goodman,
`
`815 F. 2d 103°1-32,
`
`in which a
`
`plaintiff alleged that she was an actual joint co-author of a
`
`disputed song.
`
`The Fifth Circuit held that "exclusive federal
`
`district court jurisdiction exists in an action for a declaratory
`
`judgment to establish joint authorship of a copyrighted work," and
`
`thus federal jurisdiction over the plaintiff's claim was proper.
`
`Id. at 1032. But the Fifth Circuit distinguished between cases
`
`where the "'controlling issue involves a dispute over title to a
`
`copyright arising from an alleged breach of contract'" and cases
`
`that involved "the validity of the copyright itself under the
`
`Copyright Act."
`
`Id.
`
`Because Goodman belonged to the latter
`
`category, federal jurisdiction was proper.
`
`Id.
`
`While "the Fifth Circuit has recognized that claims requiring
`
`construction of the Copyright Act create jurisdiction when the
`
`actions are based on rights created in the Act [,]" "state law
`
`claims over ownership to a copyright as a matter of state law do
`
`not
`
`'arise under' the Copyright Act for the purposes of federal
`
`jurisdiction
`
`If Ultraflo Corp. v. Pelican Tank Parts,
`
`Inc., 823 F. Supp. 2d 578, 584
`
`(S. D. Tex. 2011)
`
`(citing Kane v.
`
`Nace International, 117 F. Supp. 2d 592, 595-96 (S.D. Tex. 2000);
`
`see also Ross v. Dejarnetti, Civil Action No. 18-11277, 2020
`
`WL 1889195, at *5
`
`(E.D. La. April 16, 2.020)
`
`("[O]wnership of a
`
`copyright involves only a state law question if the disputed
`
`ownership hinges on the terms of a contractual agreement.").
`
`-7-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 8 of 12
`
`The mere fact that a contract deals with the disposition
`of a copyright or there is a dispute as to who owns the
`copyright does not implicate the Copyright Act:
`"[t]he
`general interest that copyrights, like all other forms of
`property, should-be enjoyed by their true owner is not
`enough" to allege a wrong delineated by the Act, or a
`.remedy provided by it.
`
`RTG LLC v. Fodera, No. 5:19-CV-87-DAE, 2019 WL 5791459, at *5 (W.D.
`
`Tex. May 16, 2019) (quoting Eliscu, 339 F.2d at 828).
`
`The Copyright Act provides
`
`that
`
`" [c] opyright
`
`in a work
`
`protected under this title vests initially in the author or authors
`
`of the work.
`
`The authors of a joint work are coowners of
`
`[a]
`
`copyright in the work. "
`
`17 U.S.C. § 20l(a). The Copyright Act
`
`defines a "joint work" as "a work prepared by two or more authors
`
`with
`
`the
`
`intention
`
`that
`
`their contributions be merged
`
`into
`
`inseparable or interdependent parts of a unitary whole." 17 U.S.C.
`
`§ 101.
`
`The Contract does not explicitly provide for ownership of
`
`copyrights.
`
`However, every page of
`
`the Contract refers
`
`to
`
`Plaintiff as "the author[,]" 21 and the Contract refers to the Book
`
`as "Jentry Kelley's book[.]" 22 At the bottom of the last page of
`
`the Contract, Plaintiff's signature appears next
`
`to the word
`
`"Author. " 23 The Contract further states that "Di Angelo Publications
`
`takes pride in our ability to allow the author full creative
`
`21Contract, Exhibit A to Defendant' s Answer, Docket Entry
`No. 3-1.
`
`22 Id. at 3.
`
`23 Id. at 6.
`
`-8-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 9 of 12
`
`control over the outcome - [of] your book, along with a greatly
`
`enhanced· royalty - percentage
`
`(and option for buyout) . " 24
`
`The
`
`Contract never refers to the Book as a "joint work" or to Defendant
`
`as a "co-author."
`
`The court concludes that determining the Book's ownership will
`
`require construction of the Contract and not of the Copyright Act.
`
`This case therefore does not arise under the Copyright Act, and
`
`Plaintiff's Motion to Remand will be granted.
`
`C.
`
`Removal Is Untimely
`
`The procedure for removal of civil actions is governed by 28
`
`U.S.C. § 1446(b), which provides that
`
`[t]he notice of removal of a civil action or proceeding
`shall be filed within 30 days after the receipt by the
`defendant, through service or otherwise, of a copy of the
`initial pleading setting forth the claim for relief upon
`which such action or proceeding is based, or within 30
`days after the service of summons upon the defendant if
`such iriitial pleading has then been filed in court and is
`not required to be served on the defendant, whichever
`period is shorter.
`
`"[W]hen read as a whole, § 1446(b) provides a two-step test
`
`for determining whether a defendant
`
`timely
`
`removed a case."
`
`Chapman v. Powermatic, Inc., 969 F.2d 160, 161 (5th Cir. 1992).
`
`"[I]f the case stated by the initial pleading is removabl~, then
`
`notice of removal must be filed within thirty days from the receipt
`
`of the initial pleading by the defendant
`
`II
`
`Id. "[I] f the
`
`case stated by the initial pleading is not removable, then notice
`
`24 '.J:d. at 2.
`
`-9-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 10 of 12
`
`of removal must be filed within thirty days from the receipt of an
`
`amended pleading, motion, order, or other paper from which the
`
`defendant cari ascertain that the case is removable."
`
`Id.
`
`Defendant argues that this case only became removable when
`
`Plaintiff filed her Second Amended Petition seeking a declaration
`
`that she was the Book's sole author and copyright holder. 25 But
`
`Plaintiff claimed in her Original Petition, filed November 7, 2018,
`
`that she
`
`.was "the sole author, owner,
`
`and claimant of
`
`the
`
`intellectual property rights
`
`to
`
`the Book and its ancillary
`
`creations" and "the sole owner of all copyrights" associated with
`
`the Book. 26 Plaintiff's First Amended Petition, filed July 8, 2020,
`
`made a virtually identical claim. 27
`
`If claiming to be the sole
`
`author and copyright owner of a work were enough on its own to
`
`establish an action as removable under the Copyright Act, then this
`
`action became removable on November 12, 2018, 28 and Defendant's
`
`deadline to remove was December 12, 2018. See 28 U.S.C. § 1446(b).
`
`25See Defendant's Response, Docket Entry No. 8, p. 11 ( "Kelley
`introduced a federal question into her state court lawsuit when she
`amended her petition a second time and inserted a new cause of
`action seeking a declaration of sole authorship and ownership of a
`book in suit.ff).
`
`26 Plaintiff' s Original Petition,
`Removal, Docket Entry No. 1-10, p. 4,
`
`Exhibit
`10.
`
`2H
`
`to Notice of
`
`27Plaintiff's First Amended Petition, Exhibit 2D to Notice of
`Removal, Docket Entry No. 1-6, p. 4, 10.
`
`28 See Citation Corporate, Exhibit 1
`Docket Entry No. 1-1, p. 3.
`
`to Notice of Removal,
`
`-10-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 11 of 12
`
`But Defendant did not file its Notice of Removal until May 20,
`
`2021, approximately three years too late.
`
`D. Attorneys' Fees
`
`Plaintiff seeks reimbursement of attorneys' fees incurred due
`
`to Defendant's improper removal. 29
`
`Motions for remand are governed by 28 U.S.C. § 1447(c), which
`
`states in pertinent part that
`
`[i]f at any time before final judgment it appears that
`the district court lacks subject matter jurisdiction, the
`case shall be remanded. An order remanding the case may
`require payment of just costs and any actual expenses,
`including attorney fees,
`incurred as a result of the
`removal.
`
`"There is no automatic entitlement to an award of.attorney's
`
`fees." Valdes v. Wal-Mart Stores, Inc., 199 F.3d 290, 292 (5th
`
`Cir. 2000).
`
`"Absent unusual circumstances, courts may award
`
`attorney's fees under § 1447 (c) only where the· removing party
`
`lacked an ·objectively reasonable basis for seeking
`
`removal.
`
`Conversely, when an objectively reasonable basis exists, fees
`
`should be denied." Martin ·v. Franklin Capital Corp., 126 S. Ct.
`
`704, 711 (2005).
`
`The court concludes
`
`that Defend~nt had an objectively
`
`reasonable basis for seeking removal, and thus Plaintiff's request
`
`for reimbursement of attorneys' fees is denied.
`
`29Plaintif f's Motion to Remand,. Docket Entry No. 7, p. 4
`~ 5 .d.
`
`-11-
`
`

`

`Case 4:21-cv-01666 Document 10 Filed on 07/28/21 in TXSD Page 12 of 12
`
`III. Conclusions and Order
`
`For the reasons explained above,
`
`the court concludes that
`
`Defendant· has failed to meet its burden of establishing that
`
`federal jurisdiction exists and that removal was proper. The court
`
`further holds that even if removal under the Copyright Act had been
`
`proper, Defendant's removal was untimely. Accordingly, Plaintiff
`
`Jentry Kelley's Motion to Remand (Docket Entry No. 7) is GRANTED,
`
`and this action is REMANDED
`
`to
`
`the 270th District Court of
`
`Harris County, Texas.
`
`The Clerk will promptly provide a copy of this Memorandum
`
`Opinion and Order to the District Clerk of Harris County, Texas.
`
`SIGNED at Houston, Texas, on this the 28th day of July, 2021.
`
`SIM LAKE
`SENIOR UNITED STATES DISTRICT JUDGE
`
`-12-
`
`

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