The opinion
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
DOCKET NO. 3:18-cv-00534-FDW-DSC
ERNEST KING, )
)
Plaintiff, )
)
vs. )
) ORDER
AMAZON CORPORATION, )
REGINA THOMAS, )
)
Defendants. )
)
THIS MATTER is before the Court on a Motion to Dismiss by Defendant Amazon
pursuant to Federal Rule of Civil Procedure 12(b)(6). (Doc. No. 19). Because Plaintiff Ernest
King (“Plaintiff”) appears pro se, the Court issued a Roseboro notice. (Doc. No. 20). Plaintiff has
responded to Defendant Amazon, (Doc. No. 23), and this matter is now ripe for review. For the
reasons stated below, Defendant Amazon’s Motion to Dismiss is GRANTED in part and DENIED
in part.
I. BACKGROUND
This lawsuit appears to stem from a dispute over the publishing of the book, From Brooklyn
to the Grave. At all times relevant to this suit, Plaintiff has been incarcerated. (Doc. No. 1, pp. 1–
2). Plaintiff alleges that, at one point, Defendant Regina Thomas (“Thomas”) and Plaintiff were
in a relationship. (Doc. No. 1, p. 2). During that time, Defendant Thomas was purportedly “acting
as an agent on Plaintiff’s behalf in publishing his book” and editing the book, which was completed
in 2008. (Doc. No. 1, pp. 2–3). According to Plaintiff, Defendant Amazon then published
Plaintiff’s book, From Brooklyn to the Grave, with the assistance of Defendant Thomas. (Doc.
No. 1, p. 3). Defendant Thomas and Plaintiff separated in 2010, and Defendant Thomas allegedly
disappeared with Plaintiff’s manuscript and “shortly thereafter begain [sic] to reap the benefits of
sell’s [sic].” (Doc. No. 1, p. 3). Plaintiff alleges that he owns the copyright to the book, and
therefore, Defendant Thomas is benefiting from stolen property because she never informed
Plaintiff of any book sales or “money deals” even though Plaintiff did not give Defendant Thomas
“power of attorney” over his book. (Doc. No. 1, pp. 3–4).
After learning that Defendant Amazon was selling his book, Plaintiff allegedly alerted
Amazon that the book was stolen, but Amazon informed Plaintiff that it would “continue to sell
any remaining stock currently in their possession [and] . . . any royalties resulting from such
purchases [of the book] are payable to Plaintiff’s publisher.” (Doc. No. 1, p. 4). Plaintiff’s
complaint asserts four “counts” against the Defendants: (1) “property flipping,” (2) “false
documentation,” (3) “amount in controversy,” and (4) “prayer for relief.” (Doc. No. 1, pp. 5–7).
II. STANDARD OF REVIEW
A motion to dismiss pursuant to Rule 12(b)(6) tests the “legal sufficiency of the complaint”
but “does not resolve contests surrounding the facts, the merits of a claim, or the applicability of
defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992); Eastern Shore
Markets, Inc. v. J.D. Assoc. Ltd. Partnership, 213 F.3d 175, 180 (4th Cir. 2000). A complaint
attacked by a Rule 12(b)(6) motion to dismiss will survive if it contains “enough facts to state a
claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 697 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when
the plaintiff pleads factual content that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id.
The Supreme Court has also held that “when ruling on a defendant's motion to dismiss, a judge
must accept as true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 93-94 (2007) (quoting Twombly, 550 U.S. at 555-56) (internal citations omitted).
Conclusory allegations, however, are “not entitled to be assumed true.” Iqbal, 556 U.S. at 681.
While a high level of factual detail is not required, a complaint needs more than “an unadorned,
the-defendant-unlawfully-harmed-me accusation.” Id. at 678 (citing Twombly, 550 U.S. at 555).
A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520
(1972). However, the liberal construction requirement will not permit a district court to ignore a
clear failure to allege facts in the complaint which set forth a claim that is cognizable under federal
law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III. ANALYSIS
Plaintiff’s pro se complaint first asserts a claim against Defendants for “property flipping,”
described by Plaintiff as a “property fraud scheme[]” whereby Defendants “artificially inflated the
book sales through false and fraudulent schemes.” (Doc. No. 1, p. 5). Plaintiff’s second claim
against the Defendants is for “false documentation,” described by Plaintiff as another “property
fraud scheme[]” whereby Defendants engaged in a scheme understood to be “illegal and
fraudulent.” (Doc No. 1, p. 6). While this Court is unaware of cognizable causes of action for
“property flipping” in this context or “false documentation” in any context,1 the Court liberally
construes these claims as a fraud claim against Defendant Amazon. (Doc. No. 1, p. 5).
However, Rule 9(b)(2) of the Federal Rules of Civil Procedure require a Plaintiff pleading
a claim of fraud to “state with particularity the circumstances constituting fraud.” “The purposes
of Rule 9(b) include ‘providing notice to a defendant of its alleged misconduct, of preventing
frivolous suits, of eliminating fraud actions in which all the facts are learned after discovery, and
1 See Franklin v. DaVita Healthcare Partners, Inc., No. 13-11329, 2014 WL 6886306 at *1, (E.D. Mich. Dec. 2014)
(holding regarding a plaintiff’s claim of false documentation “there is no such cause of action.”).
of protecting defendants from harm to their goodwill and reputation.’” Beam Construction
Company v. Allied World Specialty Insurance, Inc., No: 3:17-cv-00420-FDW, 2017 WL 5158712,
at *4 (W.D.N.C. Nov. 11, 2017) (quoting United States ex rel. Nathan v. Takeda Pharms. N. Am.,
Inc., 707 F.3d 451, 456 (4th Cir. 2013) (citations and internal quotation marks omitted)). To satisfy
this requirement, Plaintiff’s complaint must “at a minimum describe the time, place, and contents
of the false representations, as well as the identity of the person making the misrepresentation and
what he obtained thereby.” United States ex rel. Wilson v. Kellogg Brown & Root, Inc., 525 F.3d
370, 379 (4th Cir. 2008). Here, Plaintiff only makes statements that Amazon “conceal[ed]
payments creating false documentation” and “upon discovering Plaintiff’s book and/or transcript
was stolen property—a meeting with a federal prosecutor and investigator was required.” (Doc.
No. 1, pp. 5 – 6). Plaintiff does not describe what false documentations were made by Defendant
Amazon, when they were made, who they were made by, or the benefit obtained by such
representations. This Court finds the fraud allegations in Plaintiff’s complaint insufficient because
they lack particularity and are only conclusory statements. Therefore, the Court GRANTS
Defendant Amazon’s motion to dismiss as to Plaintiff’s fraud claim against Defendant Amazon.
Because Plaintiff appears pro se, this Court liberally construes Plaintiff’s claim that
“Defendants violated his federally-registered copyrights” as a claim for copyright infringement.
(Doc. No. 1, p. 5). The Court has reviewed Plaintiff’s claim for copyright infringement and
arguments regarding their dismissal in the briefs. In light of applicable law, the Court finds
Plaintiff has sufficiently stated a plausible claim of copyright infringement against Defendant
Amazon. Therefore, Defendant Amazon’s Motion to Dismiss Plaintiff’s copyright infringement
claim is DENIED without prejudice. Defendant Amazon may reassert any applicable arguments
regarding this claim at summary judgment.
Plaintiff’s third and fourth “counts” against the Defendants for “amount in controversy”
and “prayer for relief” are not cognizable causes of action, and therefore, are dismissed as to
Defendant Amazon. (Doc. No. 1, p. 7). Within Plaintiff’s complaint, Plaintiff mentions additional
legal terms, including libel, “white collar/fraud of civil rights,” tax fraud, “banking and/or loan
fraud,” computer and internet fraud, identity theft, and mail fraud. (Doc. No. 1, pp. 5 – 6). Plaintiff
also seeks a declaration from this Court that “the Defendants have acted in violation of federal
statutory law and the United States Constitution under the 8th and 14th Amendments.” (Doc. No.
1, p. 7). To the extent any of these claims present a cognizable cause of action, Plaintiff’s
complaint has not shown “enough facts to state a claim to relief that is plausible on its face” for
these allegations. Instead, Plaintiff’s assertions of these claims appear to this Court to be
“unadorned, the-defendant-unlawfully-harmed-me accusation[s]” which the Supreme Court has
held are insufficient to survive a Rule 12(b)(6) motion to dismiss. Iqbal, 556 U.S. at 678.
Therefore, to the extent Plaintiff seeks to assert any of the above claims against Defendant
Amazon, these claims are hereby dismissed.
IV. CONCLUSION
For the reasons stated above, Defendant Amazon’s motion to dismiss (Doc. No. 19) is
GRANTED in part and DENIED in part. Defendant Amazon’s Motion to Dismiss is GRANTED
with prejudice as to Plaintiff’s fraud claim against Defendant Amazon. Defendant Amazon’s
Motion to Dismiss is DENIED WITHOUT PREJUDICE as to Plaintiff’s copyright infringement
claim. To the extent Plaintiff’s complaint alleges other claims against Defendant Amazon, they
are DISMISSED, and the only remaining claim against Defendant Amazon in this matter is
Plaintiff’s copyright infringement claim. Because Defendant Thomas has not made a motion to
dismiss pursuant to Rule 12(b)(6), all of Plaintiff’s claims against Defendant Thomas are still
intact. The Clerk is respectfully instructed to mail a copy of this order both to Plaintiff and
Defendant Thomas.
IT IS SO ORDERED.
Signed: May 14, 2019
Frank D. Whitney é □ □
Chief United States District Judge ~*#**