Monday, March 21, 2011

Another Publish America author takes on PA in Federal Court without legal representation and with the same old failed results. When will they learn?

There is a lesson to be learned here. That lesson is how Federal Courts view the arbitration clause in PA's contract.



TO: Honorable Xavier Rodriguez
United States District Judge
Pursuant to the Order of referral in the above-styled and numbered cause of action to the
undersigned United States Magistrate Judge1 and consistent with the authority vested in United
States Magistrate Judges under the provisions of 28 U.S.C. § 636 and Rule 1of the Local Rules
for the Assignment of Duties to United States Magistrate Judges in the Western District of
Texas, the following report is submitted for your review and consideration.
Leonard J. Warrick (“plaintiff”) has alleged diversity subject matter jurisdiction under 28
U.S.C. § 1332(a)(1), claiming he and Publish America, LLLP (“defendant”) are from different
states, and the amount in controversy exceeds $75,000.2 In addition, the civil cover sheet in this
case reflects plaintiff suing under the “Copyright [A]ct, 17 U.S. C. § 501/Lanham Act, 15 U.S.C.
1 Docket no. 5 (Jan. 27, 2011).
2 Docket no. 1 at 1 and civil cover sheet; docket no. 8.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 1 of 13
§ 1114.”3 Thus, the Court also has federal question jurisdiction pursuant to 28 U.S.C. § 1331.
Plaintiff, the author of My Daily Pilgrimage, initiated this case on January 18, 2011,
when he filed his pro se original complaint against defendant, the publisher of plaintiff’s book.4
The original petition alleges defendant provided plaintiff with two copies of his book on
September 24, 2010, and “immediately upon opening my book I noticed that the copyright page
had the name of another author behind the copyright trademark” and “[t]he ISBD number . . .
was not mine.”5 In addition, the original complaint alleges defendant omitted the dedication page
and the epilogue page from plaintiff’s book.6
On January 27, 2011, the District Judge referred the case to the undersigned for
disposition of all pretrial matters.7 On February 9, 2011, defendant filed a “Motion to Dismiss in
Favor of Arbitration Under the Federal Arbitration Act or For Failure to State a Claim or to
Transfer to Another Venue,” with attachments.8 The same day, the undersigned entered an Order
requiring plaintiff to file any response to defendant’s motion on or before February 23, 2011.9
3 Docket no. 1 at civil cover sheet; docket no. 8.
4 Docket no. 1.
5 Id. at 2.
6 Id.
7 Docket no. 5.
8 Docket no. 6. Attached to defendant’s motion is the declaration of Miranda Prather and
its exhibits: ex. A,“Author Database” spreadsheet; ex. B, contract signed by plaintiff and
defendant on Mar. 22, 2005; ex. C, computer page showing the “save” dates for various drafts of
plaintiff’s manuscript; and ex. D, proposed order of dismissal.
9 Docket no. 7 at 1-2.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 2 of 13
Plaintiff was also notified that, if he failed to file a timely response, the Court might grant
defendant’s motion as unopposed, or dismiss plaintiff’s case due to his failure to comply with a
court order or timely prosecute his case.10
On February 17, 2011, plaintiff filed a two sentence response.11 On February 22, 2011,
defendant filed a reply.12 On March 3, 2011, plaintiff filed a three sentence “Resolution,” stating
that he seeks “judgment of the court” in the event that a “resolution for an out of court
settlement” cannot be reached.13
1. Whether plaintiff’s complaint should be dismissed or stayed in favor of
arbitration under the Federal Arbitration Act.
2. Whether, in the alternative, plaintiff’s complaint should be dismissed
under FED. R. CIV. P. 12(b)(6) for failure to state a claim for relief, or
transferred to Maryland under 28 U.S.C. § 1404.
A. Summary of Arguments
Defendant has moved to dismiss or stay plaintiff’s cause of action in favor of arbitration,
arguing a contract between the parties regarding the publication of plaintiff’s book includes an
10 Id. at 2.
11 Docket no. 8.
12 Docket no. 9.
13 Docket no. 10 at 1. (“I, Leonard J. Warrick the plaintiff, seek to address a resolution
for the claim of which I filed in Federal Court for 1.7 million dollars without any stipulations.
Correspondence from the defendant in which I received by certified mail on Wednesday,
February 23, 2011 failed to state any resolution for an out of court settlement of §1.7 million
dollars. Henceforth, in the event that a resolution can not be reached, I seek the judgment of the
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 3 of 13
arbitration clause.14 Defendant contends the contract, which is attached to the declaration of
Miranda Prather, involves interstate commerce as the parties are from different states and the
contract allows defendant to sell plaintiff’s book “anywhere ‘in the United States of America’
and ‘its Dependencies.’”15 Defendant asserts the contract is sufficient to show an arbitration
agreement exits.16 In addition, defendant argues the broad scope of the arbitration clause
encompasses plaintiff’s claims as it “obligates the parties to arbitrate all disputes relating to the
existence, validity, interpretation, performance, or breach of the Contract.”17 Defendant also
asserts “it is clear that for all intents and purposes” from paragraph 4 and 5 of the complaint that
plaintiff “is alleging a breach of contract claim” because he claims the loss of royalties when two
pages were omitted from the book18 and “the dispute cannot be resolved without reference to the
Alternatively, defendant asserts the case should be dismissed because plaintiff has failed
to allege defendant copied his work without permission, one of the required elements of a
copyright infringement claim.20 Defendant contends plaintiff cannot allege this element because
plaintiff gave defendant “exclusive license to publish his work in book form throughout the
14 Docket no. 6 at 1-2.
15 Id. at 5 (quoting ex. B to Prather decl. at ¶ 1).
16 Id. at 5.
17 Id.
18 Id.
19 Id. at 6.
20 Id. at 7.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 4 of 13
world,” thus waiving any copyright infringement claim he might have against defendant.21
Defendant concedes “there are circumstances where a publisher’s failure to comply with
contractual terms can amount to a copyright infringement claim,”22 but argues, in sum, those
circumstances are not applicable here.23
As an additional alternative, defendant argues the case should be transferred to Maryland
because contract between the parties includes a forum selection clause24 which states that
“Author and Publisher irrevocably submit to the jurisdiction of any Maryland State or Federal
court sitting in the City of Frederick over any suit related to this agreement.”25 Defendant argues
plaintiff cannot show “Maryland is an inconvenient forum,”26 and Texas appears to have no
connection to the dispute, other than being the location of plaintiff’s residence.27
Plaintiff’s response to defendant’s motion states:
I, Leonard J. Warrick, the plaintiff fully exercise my right under the diversity of
citizenship to file a suit in the Federal District Court of San Antonio, Texas. I
attest to the claim of Copyright infringement under the federal statues of:
(Copyright Act, 17 U.S.C. § 501/Lanham Act, 15 U.S.C. § 1114) against the
defendant Publish America LLLP, to be factual.28
21 Id.
22 Id.
23 Id. 7-9.
24 Id. at 9.
25 Docket no. 6, ex. B to Prather decl. at ¶ 29.
26 Docket no. 6 at 10.
27 Id.
28 Docket no. 8.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 5 of 13
In reply, defendant argues that to the extent plaintiff is suggesting “his claims are not
arbitrable because they were filed under the Federal Copyright Act,” plaintiff’s suggestion is
misplaced.29 Assuming a copyright infringement claim has been alleged, which defendant
disputes,30 defendant asserts, in sum, that federal courts routinely enforce arbitration agreements
when a claim is based on violation of a federal statute.31 Finally, defendant argues plaintiff’s
“threadbare Response” fails to show “Congress intended to prohibit arbitration of copyright
B. Analysis
1. standard
The Federal Arbitration Act (“FAA”), 9 U.S.C. §§ , et al., creates a “federal policy
favoring arbitration”33 and provides that arbitration agreements “shall be valid, irrevocable, and
enforceable, save upon such grounds as exist at law or in equity for the revocation of any
contract.”34 The FAA provides for a stay of proceedings if a court finds that an issue is arbitrable
under the terms of an arbitration agreement.35 The FAA also authorizes courts to compel
arbitration when “there has been a failure, neglect, or refusal to comply with the arbitration
29 Docket no. 9 at 1.
30 Id.
31 Id. at 2.
32 Id. at 2-3.
33 Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp, 460 U.S. 1, 24-25, 103
S.Ct. 927, 941 (1983).
34 9 U.S.C. § 2.
35 9 U.S.C. § 3.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 6 of 13
agreement.”36 In addition to granting stays and motions to compel, a court has the discretion to
dismiss the case in favor of arbitration if all of the issues raised before it are arbitrable.37
When determining whether an arbitration agreement is enforceable, a district court must
use a two-step inquiry.38 First, the court must ascertain whether the parties agreed to arbitrate
their dispute.39 This question “‘depends on two considerations: (1) whether there is a valid
agreement to arbitrate between the parties; and (2) whether the dispute in question falls within
the scope of the arbitration agreement.’”40 Second, the court must determine if legal constraints
existing external to the arbitration agreement preclude arbitration of the dispute.
The question of whether a valid arbitration agreement exists is determined according to
state law.41 “While there is a strong federal policy favoring arbitration, the policy does not apply
to the initial determination whether there is a valid agreement to arbitrate.”42 But, in determining
the scope of an arbitration agreement, courts “must pay careful attention to the strong federal
36 9 U.S.C. § 4.
37 Fedmet Corp. v. M/V Buyalyk, 194 F.3d 674, 676 (5th Cir. 1999); see also Alford v.
Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992) (noting that § 3 of the FAA
“was not intended to limit dismissal of a case . . . when all of the issues raised in the district court
must be submitted to arbitration”).
38 See Banc One Acceptance Corp. v. Hill, 367 F.3d 426, 429 (5th Cir. 2004); Ascension
v. Thind Hotels, LLC., No. H-09-792, 2010 WL 519695, at * 3 (S.D. Tex. Feb. 8, 2010).
39 See Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U.S. 614, 626-29,
105 S.Ct. 3346, 3353-55 (1985); Fleetwood Enter., Inc. v. Gaskamp, 280 F.3d 1069, 1073 (5th
Cir. 2002); Ascension, 2010 WL 519695 at * 3.
40 Ascension, 2010 WL 519695 at * 4 (quoting Gaskamp, 280 F.3d at 1073 and citing
Webb v. Investacorp., Inc., 89 F.3d 252, 257 (5th Cir. 1996)).
41 Hill, 367 F.3d t 429.
42 Id. (citing Will-Drill Res., Inc. v. Samson Res. Co., 352 F.3d 211, 214 (5th Cir. 2003)).
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 7 of 13
policy favoring arbitration and must resolve all ambiguities in favor of arbitration.”43 Similarly,
once an arbitration agreement covering a dispute is found to exist, courts are to presume that the
agreement should be enforced unless a showing is made that Congress expressly intended to
exempt from arbitration, through some other law, the type of dispute at hand.44 If a party seeks to
avoid enforcement of the arbitration agreement, it must show that “Congress intended to preclude
a waiver of the judicial forum.”45 If the party cannot make this showing with respect to all of its
claims, then the case may be dismissed in favor of arbitration.46
2. application
Defendant has produced the parties’ March 22, 2005 contract.47 The arbitration clause
included in the contract provides as follows:
All unresolved disputes and controversies of any kind and nature within the scope
of this agreement (whether arising from fraud, mistake, questions of the existence,
validity, construction, performance, nonperformance, operation, or breach) shall
be submitted to an Arbitration selected in accordance with the Voluntary Labor
Arbitration Rules of the American Arbitration Association. The arbitration shall
be conducted in the City of Frederick, Maryland in accordance with the
Arbitration Rules, and the decision of the arbitrator shall be final and binding on
the parties to the proceeding, subject only to the right of judicial relief as
prescribed by law. This agreement shall be governed and construed in accordance
with the laws of the State of Maryland. Author and Publisher irrevocably submit
to the jurisdiction of any Maryland State or Federal court sitting in the City of
43 Id.
44 Ascension, 2010 WL 519695 at * 6 (citing Soler Chrysler-Plymouth, 473 U.S. at 627,
105 S.Ct. at 3354 and Rojas v. TK Commc’ns, Inc., 87 F.3d 745, 749 (5th Cir. 1996)).
45 Id. (citing Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20, 26, 111 S.Ct. 1647,
1652 (1991)).
46 Id. (citing Alford, 975 F.2d at 1161).
47 Docket no. 6, attch. B to Prather’s decl.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 8 of 13
Frederick over any suit related to this agreement.48
Thus, the arbitration clause requires the parties to arbitrate in Fredrick, Maryland pursuant to the
“Voluntary Labor Arbitration Rules of the American Arbitration Association,” “all unresolved
disputes” arising under the March 22, 2005 contract.49 Plaintiff does not deny the existence of
the March 22, 2005 contract, existence of an arbitration clause, or validity of the arbitration
clause. Thus, the question is whether the arbitration clause covers the dispute at hand.
The arbitration clause states that it is applicable to all disputes arising under the contract
including those arising from “fraud, mistake, questions of the existence, validity, construction,
performance, nonperformance, operation, or breach.”50 The original complaint consists of two
paragraphs alleging:
I recently ordered 2 copies of my book on September 17, 2010 and I received
them at my home on the afternoon of Friday September 24, 2010. Immediately
upon opening my book I noticed that the copyright page had the name of another
author behind the copyright trademark whose name was Paul Omerizi. The ISBN
number on the copyright page was not mine either. The ISBN number at the
bottom of my copyright page was 1-4137-8438-0. I googled the name of the
author and discovered that Paul Omerizi is a Featured author by Publish America
with several publications of which the ISBN number of one work appears on my
copyright page with his name.
I would like to discuss another tort committed on behalf of Publish America that I
discovered while examining my book. I observed the fact that the Dedication
page as well as the Epilogue page were not printed. The Book in its entirety was
only 86 pages when it should have been 88 pages. The 2 major discrepancies
have hindered me from successfully selling my book for I cannot even distribute
the work to book distributors with the name of another author and his ISBN
number on my copyright page. The proper credit and attribute is not given unto
48 Id. at ¶ 29.
49 Id.
50 Id.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 9 of 13
me as the author, with my dedication as well as the epilogue page being excluded
from printings.51
Plaintiff has not addressed defendant’s argument that these two paragraphs state claims for
breach of contract, a dispute covered by the arbitration clause. But, plaintiff’s pleadings filed
subsequent to defendant’s motion to dismiss, including his brief response as set forth above,
reflect plaintiff’s intent to bring a federal copyright infringement claim and to proceed in this
Court. These pleadings are consistent with the statements reflected on the civil cover sheet,
attached as an exhibit to plaintiff’s complaint, indicating plaintiff is suing under the “Copyright
[A]ct, 17 U.S.C. § 501/Lanham Act, 15 U.S.C. § 1114" based on the allegation that defendant
“[c]hanged/removed parts of” plaintiff’s book.52
Liberally construing the pleadings, plaintiff appears to assert his claims cannot be
arbitrated because they are brought pursuant to the federal copyright statutes. Plaintiff does not
cite authority suggesting copyright infringement claims are outside the scope of the arbitration
agreement. Specifically, plaintiff has not shown “Congress intended to limit or prohibit waiver
of a judicial form” for claims brought pursuant to the federal copyright laws.53 Stated differently,
plaintiff has failed to show Congress intended federal copyright disputes would not be arbitrated.
Moreover, courts that have considered the question have determined that copyright disputes are
51 Docket no. 1 at 2.
52 Docket no. 1 at civil cover sheet.
53 Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 227, 107 S.Ct. 2332, 2337
(1987) (“The burden is on the party opposing arbitration, however, to show that Congress
intended to preclude a waiver of judicial remedies for the statutory rights at issue.”).
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 10 of 13
In sum, plaintiff’s collective pleadings, when liberally construed, do not respond to
defendant’s arguments that plaintiff’s claims in this case are covered by the arbitration clause in
the March 22, 2005 contract, or otherwise show the arbitration clause should not be enforced.
Because an arbitration clause covering plaintiff’s claims exists and plaintiff has failed to show
the clause should not be enforced, each of plaintiff’s claims must be arbitrated. Accordingly,
defendant’s motion to dismiss in favor of arbitration should be granted.55 Because the case
should be dismissed in favor of arbitration, this report does not address defendant’s alternative
argument that the case be dismissed pursuant to Rule 12(b)(6) for failure to state a claim for
Based on the foregoing analysis, it is recommended defendant’s motion to dismiss56 be
GRANTED and plaintiff’s case should be DISMISSED in favor of arbitration.
The United States District Clerk shall serve a copy of this Report and Recommendation
on all parties by either: (1) electronic transmittal to all parties represented by an attorney
54 See McMahan Sec. Co. v. Forum Capital Mkt., 35 F.3d 82, 89 (2d Cir. 1994);
Saturday Evening Post Co. v. Rumbleseat Press, Inc., 816 F.2d 1191, 1198-99 (7th Cir. 1987);
Lorber Indus. of Cal. v. Los Angeles Printworkers, Corp., 803 F.2d 523, 525 (9th Cir.1986);
Threadgill v. Orleans Parish Sch. Bd., No. 02-1122, 2003 WL 21244009, at * 3 (E.D. La. May
23, 2002)
55 See Ascension, 2010 WL 519695 at *6 (citing Alford, 975 F.2d at 1161).
56 Docket no. 6.
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 11 of 13
registered as a Filing User with the Clerk of Court pursuant to the Court’s Procedural Rules for
Electronic Filing in Civil and Criminal Cases; or (2) by certified mail, return receipt requested, to
any party not represented by an attorney registered as a Filing User.
As provided in 28 U.S.C. § 636(b)(1) and FED. R. CIV. P. 72(b), any party who desires to
object to this Report must file with the District Clerk and serve on all parties and the Magistrate
Judge written Objections to the Report and Recommendation within 14 days after being served
with a copy, unless this time period is modified by the District Court. A party filing Objections
must specifically identify those findings, conclusions or recommendations to which objections
are being made and the basis for such objections; the District Court need not consider frivolous,
conclusive or general objections.
A party’s failure to file timely written objections to the proposed findings, conclusions
and recommendations contained in this Report will bar the party from receiving a de novo
determination by the District Court.57 Additionally, a party’s failure to file timely written
objections to the proposed findings, conclusions and recommendations contained in this Report
will bar the aggrieved party, except upon grounds of plain error, from attacking on appeal the
57 See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985).
Case 5:11-cv-00042-XR Document 11 Filed 03/14/11 Page 12 of 13
unobjected-to proposed factual findings and legal conclusions accepted by the District Court.58
SIGNED and ENTERED this 14th day of March, 2011.

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