The following speaks for itself but the plaintiff sued Publish America over contract disputes instead of executing the arbitration clause. The result is that the court dismissed the case stating in part that the plaintiff must pursue his disputes with Publish America through the Publish America contract arbitration provision.
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
LEONARD WARRICK, )
)
Plaintiff, )
)
VS. ) Civil Action No: SA-11-CA-0042-XR
)
PUBLISH AMERICA, LLLP, ))
Defendant. )
ORDER RE: UNITED STATES
MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
On this date, the Court considered the Report and Recommendation (docket no. 12) filed on
March 14, 2011, regarding Defendant Publish America’s 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
(docket no. 6). The Magistrate Judge recommends granting the motion to dismiss in favor of
arbitration. After careful consideration, the Court accepts the recommendation.
Plaintiff Leonard Warrick filed his original complaint on January 18, 2011, alleging copyright
infringement against the publisher of his book, Defendant Publish America. Plaintiff’s complaint
alleges that he “noticed that the copyright page [of his book] had the name of another author behind
the copyright trademark” and the “ISBN number on the copyright page was not mine either.” He
also alleges that Publish America committed a tort by not printing the dedication page or the
epilogue. He alleges that the discrepancies have hindered him from successfully selling his book
because he cannot distribute it to book distributors with the name of another author and his ISBN
on the copyright page.
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On January 27, 2011, the Undersigned referred the case to Magistrate Judge Mathy for
disposition of all pretrial matters. On February 9, 2011, Defendant Publish America 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, and Plaintiff filed a brief response on February 17. Defendant
moves to dismiss or stay Plaintiff’s case in favor of arbitration, based on a contractual arbitration
agreement contained in the publishing contract between the parties. The arbitration agreement
provides that “[a]ll 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 Arbitrator
selected in accordance with the Voluntary Labor Arbitration Rules of the American Arbitration
Association. . . .”
The Magistrate Judge recommends granting the motion to dismiss in favor of arbitration,
noting that Plaintiff’s response to the motion does not deny the existence or validity of the arbitration
agreement, and finding that the arbitration clause covers the dispute at hand. The Magistrate Judge
concluded that Plaintiff’s claims fall within the broad scope of the arbitration clause. Liberally
construing Plaintiff’s filings, the Magistrate Judge concluded that Plaintiff appears to be asserting
that his claims cannot be arbitrated because they are brought pursuant to federal copyright statutes.
However, she concluded that Plaintiff failed to establish that such claims are exempt from
arbitration, and noted that courts that have considered the question have determined that copyright
disputes are arbitrable. Accordingly, she recommends that the motion to dismiss in favor of
arbitration be granted.
On April 7, Plaintiff filed a “Plea and Prayer,” which the Court will construe as objections
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to the Report and Recommendation. Therein, Plaintiff requests that the case remain in federal court,
asserts that the truth of the alleged violation of the Copyright Act will be shown, and states there is
no principled reason for the change of venue. Plaintiff contends that he obtained and paid for the
copyright registration of his book, and that he has had a zero balance for royalties for the past two
years. Plaintiff includes a “history of contractual torts,” which lists various provisions of the
publishing contract. Plaintiff asserts that Defendant “blatantly violated” articles 4, 11, and 21 of the
contract, and also appears to assert violations of Article 30 and 31 of the contract. Article 4 requires
that copyright shall be taken out in the name of the Author. Article 11 of the contract requires
Defendant to maintain accurate records of all sales generated by the book. Article 21 obligates
Defendant to pay the author 50% of any recovery for copyright infringement by third parties.
Regarding the arbitration clause, Plaintiff states, “The Elastic Clause of the Voluntary Labor
Arbitration Rules of The American Arbitration Association is strategically used to violate all other
articles of this legally binding contract.” He contends that the arbitration clause “should not be used
to omit the validity of all the other clauses in the contract.” He further states, “No method of
arbitration or amends was express, implied or communicated by the Defendant (Publish America
LLLP) 100 days after they were notified in writing of the contractual torts against me as the
Plaintiff.”
Plaintiff asserts that Defendant falsely states it provided him with two copies of his book in
order to falsely project the idea that amends or arbitration had been attempted before Plaintiff filed
suit, when in fact he purchased them himself. He also complains that, after he notified Defendant
of his claims, they sent him an offer to return his publishing rights to him for $99.
Plaintiff’s objections appear to primarily assert that Defendant has breached the contract in
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a number of ways, and Plaintiff argues that arbitration should not be required because Defendant has
engaged in deceit and failed to invoke the arbitration provision or “make amends” during the 100-
day period after Plaintiff provided Defendant with written notice of the alleged violations. Rather
than disputing the Magistrate Judge’s conclusion that Plaintiff’s claims fall within the scope of the
arbitration agreement, Plaintiff’s response clarifies that Plaintiff is complaining of a number of
violations of the contractual provisions, and those claims are squarely within the scope of the
arbitration agreement. Further, Plaintiff’s apparent claim that Defendant failed to make amends or
begin arbitration within 100 days of receiving Plaintiff’s written notice and thus waived its right to
arbitration is misplaced. Defendant has timely invoked the arbitration clause in response to
Plaintiff’s filing of this lawsuit, and Plaintiff points to no legal basis for his apparent argument that
Defendant was obligated to remedy Plaintiff’s complaints or seek arbitration within 100 days of
Plaintiff’s written notice. The arbitration clause does not nullify the other provisions of the contract,
as Plaintiff asserts. Rather, it only governs the forum in which Plaintiff may pursue his claims that
Defendant has breached the contract.
The Court finds that the current dispute is subject to a valid arbitration clause, and thus
ACCEPTS the Magistrate Judge’s recommendation to GRANT Defendant’s motion to dismiss this
case in favor of arbitration (docket no. 6). If Plaintiff wishes to pursue his claims, he should initiate
an arbitration proceeding pursuant to the terms of Article 29 of the contract.
Conclusion and Orders
The Magistrate Judge’s Recommendation is ACCEPTED. Defendant’s 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 (docket no. 6) is GRANTED IN PART and DISMISSED AS MOOT IN
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PART, such that the Motion to Dismiss in Favor of Arbitration is GRANTED, and this case is
DISMISSED WITHOUT PREJUDICE. The remainder of the motion is DISMISSED AS MOOT.
It is so ORDERED.
SIGNED this 12th day of April, 2011.
_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE
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