Urell v. Colgate-Palmolive Company

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

SUSAN F. URELL,

Plaintiff,

v. Civil Action 2:23-cv-3652

Judge Sarah D. Morrison

Magistrate Judge Chelsey M. Vascura

COLGATE-PALMOLIVE COMPANY,

et al.,

Defendants.

ORDER and REPORT AND RECOMMENDATION

This matter is before the Court for consideration of Plaintiff’s Motion for Leave to

Proceed in forma pauperis. (ECF No. 1.) Initially, the undersigned recommended that Plaintiff’s

Motion be denied. (R. & R., ECF No. 2.) However, Plaintiff filed objections to the Report and

Recommendation that included additional information about her financial status. (ECF No. 3.) In

light of this additional information, the November 3, 2023 Report and Recommendation (ECF

No. 2) is VACATED and Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (ECF No.

1) is GRANTED. All judicial officers who render services in this action shall do so as if the

costs had been prepaid. 28 U.S.C. § 1915(a).

This matter is also before the Court for the initial screen of Plaintiff’s Complaint as

required by 28 U.S.C. § 1915(e)(2) to identify cognizable claims and to recommend dismissal of

Plaintiff’s Complaint, or any portion of it, which is frivolous, malicious, fails to state a claim

upon which relief may be granted, or seeks monetary relief from a defendant who is immune

from such relief. 28 U.S.C. § 1915(e)(2). Having performed the initial screen, for the reasons that

follow, Plaintiff MAY PROCEED on her claim for copyright infringement against Defendants

The Colgate-Palmolive Company, Hecho Studios, LLC, and Thomas L. Dunlap, III, but it is

RECOMMENDED that the Court DISMISS Plaintiff’s claims against Marsha Butler pursuant

to § 1915(e)(2).

I. STANDARD OF REVIEW

Congress enacted 28 U.S.C. § 1915, the federal in forma pauperis statute, seeking to

“lower judicial access barriers to the indigent.” Denton v. Hernandez, 504 U.S. 25, 31 (1992). In

doing so, however, “Congress recognized that ‘a litigant whose filing fees and court costs are

assumed by the public, unlike a paying litigant, lacks an economic incentive to refrain from

filing frivolous, malicious, or repetitive lawsuits.’” Id. at 31 (quoting Neitzke v. Williams, 490

U.S. 319, 324 (1989)). To address this concern, Congress included subsection (e) as part of the

statute, which provides in pertinent part:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid,

the court shall dismiss the case at any time if the court determines that—

* * *

(B) the action or appeal—

(i) is frivolous or malicious; [or]

(ii) fails to state a claim on which relief may be granted . . . .

28 U.S.C. § 1915(e)(2)(B)(i) & (ii); Denton, 504 U.S. at 31. Thus, § 1915(e) requires sua sponte

dismissal of an action upon the Court’s determination that the action is frivolous or malicious, or

upon determination that the action fails to state a claim upon which relief may be granted.

To properly state a claim upon which relief may be granted, a plaintiff must satisfy the

basic federal pleading requirements set forth in Federal Rule of Civil Procedure 8(a). See also

Hill v. Lappin, 630 F.3d 468, 470–71 (6th Cir. 2010) (applying Federal Rule of Civil Procedure

12(b)(6) standards to review under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii)). Under Rule

8(a)(2), a complaint must contain a “short and plain statement of the claim showing that the

pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Thus, Rule 8(a) “imposes legal and factual

demands on the authors of complaints.” 16630 Southfield Ltd., P’Ship v. Flagstar Bank, F.S.B.,

727 F.3d 502, 503 (6th Cir. 2013).

Although this pleading standard does not require “detailed factual allegations, a pleading

that offers labels and conclusions or a formulaic recitation of the elements of a cause of action”

is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (cleaned up). A complaint will not

“suffice if it tenders naked assertion devoid of further factual enhancement.” Id. (cleaned up).

Instead, in order to state a claim upon which relief may be granted, “a complaint must contain

sufficient factual matter to state a claim to relief that is plausible on its face.” Id. (cleaned up).

Facial plausibility is established “when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. “The

plausibility of an inference depends on a host of considerations, including common sense and the

strength of competing explanations for the defendant’s conduct.” Flagstar Bank, 727 F.3d at 504

(citations omitted). Further, the Court holds pro se complaints “to less stringent standards than

formal pleadings drafted by lawyers.” Garrett v. Belmont Cty. Sheriff’s Dep’t, 374 F. App’x 612,

614 (6th Cir. 2010) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)). This lenient

treatment, however, has limits; “courts should not have to guess at the nature of the claim

asserted.” Frengler v. Gen. Motors, 482 F. App’x 975, 976–77 (6th Cir. 2012) (quoting Wells v.

Brown, 891 F.2d 591, 594 (6th Cir. 1989)).

II. ANALYSIS

Plaintiff alleges that she authored a dental hygiene campaign for children (“The

Adventures of Toofus” and “MolarTron and Friends”) encompassing a dramatic adventure

cartoon, a musical, songs, and drawings. Plaintiff alleges that she registered her copyright for

these works in 2001 and 2009. Plaintiff further alleges that she submitted her works to

Defendant, The Colgate-Palmolive Company, in 2001 (via United States mail), 2012 (via

Colgate’s Innovation Portal), and at a third unspecified time (via a contact at the practice where

Plaintiff worked as a dental hygienist). Plaintiff learned in 2021 that Colgate was promoting a

very similar “Adventures in the Molar System” campaign which Plaintiff alleges infringes her

copyrights. (See Compl., ECF No. 1-1, PAGEID #65–67) (detailing several similarities between

Plaintiff’s and Colgate’s campaigns). Although Plaintiff contacted several individuals at Colgate,

no action was taken to cease the infringement. Plaintiff’s Complaint advances a single count for

copyright infringement under 17 U.S.C. § 101, et seq., and seeks actual and statutory damages

and disgorgement of Defendants’ profits.

In addition to Colgate, Plaintiff names several other Defendants: Marsha Butler, DDS

(described only as a retired Colgate employee who “had a reasonable opportunity to view or

copy Plaintiff’s work”) (Compl., PAGEID #57, 61); Hecho Studios, LLC (allegedly hired by

Colgate to produce the “Adventures in the Molar System” videos) (id.), and Thomas Dunlap (a

Hecho Studios employee who worked on the “Adventures in the Molar System” campaign) (id.).

Plaintiff MAY PROCEED on her claim for copyright infringement against Colgate,

Hecho Studios, and Mr. Dunlap. However, Plaintiff’s complaint does not contain sufficient

factual allegations on which the undersigned could rely to conclude that Ms. Butler is liable for

infringement of Plaintiff’s copyright. Ms. Butler’s mere opportunity to view or copy Plaintiff’s

work does not sufficiently allege that she infringed Plaintiff’s copyright herself or that she is

vicariously liable for Colgate’s alleged infringement. See Gordon v. Nextel Commc’ns & Mullen

Advert., Inc., 345 F.3d 922, 925 (6th Cir. 2003) (“Vicarious liability exists when (1) a defendant

has the right and ability to supervise the infringing conduct and (2) the defendant has an obvious

and direct financial interest in the infringement.”). Accordingly, the undersigned

RECOMMENDS that Plaintiff’s claims against Ms. Butler be dismissed for failure to state a

claim pursuant to 28 U.S.C. § 1915(e)(2).

III. DISPOSITION

For the foregoing reasons, the undersigned’s November 3, 2023 Report and

Recommendation (ECF No. 2) is VACATED and Plaintiff’s Motion for Leave to Proceed In

Forma Pauperis (ECF No.1) is GRANTED. Plaintiff MAY PROCEED on her claims for

copyright infringement against Defendants The Colgate-Palmolive Company, Hecho Studios

LLC, and Thomas L. Dunlap, III, but it is RECOMMENDED that Plaintiff’s remaining claim

against Marsha Butler be DISMISSED for failure to state a claim pursuant to 28 U.S.C.

§ 1915(e)(2).

Plaintiff has submitted requests for issuance of summons and service of process by U.S.

Marshal forms for all Defendants. The Clerk is DIRECTED to issue summonses directed only

to Defendants The Colgate-Palmolive Company, Hecho Studios LLC, and Thomas L. Dunlap,

III, and the United States Marshal is DIRECTED to serve by certified mail upon Defendants

The Colgate-Palmolive Company, Hecho Studios LLC, and Thomas L. Dunlap, III, the issued

summonses, a copy of the Complaint (ECF No. 1-1), and a copy of this Order and Report and

Recommendation.

PROCEDURE ON OBJECTIONS

If any party objects to this Report and Recommendation, that party may, within fourteen

(14) days of the date of this Report, file and serve on all parties written objections to those

specific proposed findings or recommendations to which objection is made, together with

supporting authority for the objection(s). A District Judge of this Court shall make a de novo

determination of those portions of the Report or specified proposed findings or recommendations

to which objection is made. Upon proper objections, a District Judge of this Court may accept,

reject, or modify, in whole or in part, the findings or recommendations made herein, may receive

further evidence or may recommit this matter to the Magistrate Judge with instructions. 28

U.S.C. § 636(b)(1).

The parties are specifically advised that failure to object to the Report and

Recommendation will result in a waiver of the right to have the District Judge review the Report

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140

(1985); United States v. Walters, 638 F.2d 947 (6th Cir. 1981).

IT IS SO ORDERED.

/s/ Chelsey M. Vascura

CHELSEY M. VASCURA

UNITED STATES MAGISTRATE JUDGE