United States District Court, E.D. Virginia, Alexandria Division
Quill Ink Books, Ltd. Plaintiff,
Rachelle Soto a/k/a Addison Cain, Defendant.
MEMORANDUM OPINION AND ORDER
matter comes before the Court on Defendant's Motion to
Dismiss. Dkt. 28. Defendant has moved to dismiss Counts II,
III, and IV of the First Amended Complaint. The Motion has
been fully briefed, Dkt. 33, Dkt. 34, and the Court dispensed
with oral argument because it would not aid the decisional
case arises from a dispute between two romance novel authors.
Defendant Rachelle Soto (also known as Addison Cain) and her
publisher have accused books written by the pseudonymous
"Zoey Ellis" and published by Plaintiff, of
plagiarizing Defendant's novels and have sent DMCA
takedown notices regarding the allegedly plagiarizing novels.
Plaintiff sued both Defendant and her publisher in federal
court in Oklahoma, but Defendant was dismissed from that case
on personal jurisdiction grounds. Plaintiff then filed the
Quill Ink Books Limited originally sued alleging six counts:
intentional DMCA misrepresentation in violation of 17 U.S.C.
§ 512(f), copyright misuse, tortious interference,
defamation, statutory conspiracy in contravention of Va. Code
§ 18.2-499, and a declaratory judgment count regarding
the question of infringement. Defendant moved to dismiss all
but the intentional DMCA misrepresentation count. This Court
held Plaintiffs state law claims to be preempted because they
were based directly upon DMCA takedown claims. Dkt. 24 at 4.
Accordingly, the motion to dismiss was granted and the
Amended Order dismissed the state law claims without
prejudice. That Order specifically allowed for amendment of
the defamation claim if Plaintiff were able to state a valid
defamation claim which was independent of the takedown
subsequently filed the First Amended Complaint
("FAC") at issue here. Dkt. 27. The FAC consists of
four counts: intentional DMCA misrepresentation, and three
state claims. The state law claims-tortious interference,
defamation, and statutory conspiracy-can only survive if they
are no longer "tied directly to the allegedly fraudulent
DMCA takedown notices." Dkt. 24 at 4. Defendant has
moved to dismiss the state law claims.
survive a motion to dismiss, a complaint must contain
sufficient factual information to "state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 550 (2007). Because a
Rule 12(b)(6) motion tests the sufficiency of a complaint
without resolving factual disputes, a district court
"'must accept as true all of the factual allegations
contained in the complaint' and 'draw all reasonable
inferences in favor of the plaintiff.'"
Kensington Volunteer Fire Dep't v. Montgomery
County, 684 F.3d 462. 467 (4th Cir. 2012) (quoting
E.I. du Pont de Nemours & Co. v. Kolon Indus.,
Inc., 637 F.3d 435, 440 (4th Cir. 2011)). While
"detailed factual allegations" are not required, a
plaintiff must provide more than mere "labels and
conclusions" or a "formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555 (citations omitted). In considering the
sufficiency of a complaint in response to a Rule 12(b)(6)
motion, "a court evaluates the complaint in its
entirety, as well as documents attached or incorporated into
the complaint." E.I. du Pont de Nemours &
Co., 637 F.3d at 448 (citing Sec'y of Stale for
Defence v. Trimble Navigation Ltd., 484 F.3d 700, 705
(4th Cir. 2007); Phillips v. LCI Int'l Inc., 190
F.3d 609, 618 (4th Cir. 1999)).
Defamation (Count III)
Quill's defamation assertions fail to state a claim
because the statements at issue are not actionable. The
statements which Quill identifies as defamatory are not of or
concerning Quill, nor are they directed towards a small group
of which Quill is a member.
for defamation in Virginia requires "(1) publication of
(2) an actionable statement with (3) the requisite
intent." Chapin v. Knight-Ridder, Inc., 993
F.2d 1087, 1092 (4th Cir. 1993) (citing Gazette, Inc. v.
Harris, 229 Va. 1 (1985)) (footnote omitted).
"Whether statements complained of in a defamation action
fall within the type of speech which will support a state
defamation action is a matter for the trial judge to
determine as a matter of law." WJLA-TV v.
Levin, 264 Va. 140, 152 (2002) (quoting Yeagle v.
Collegiate Times, 255 Va. 293, 296(1998)).
statements are only actionable if they are of and concerning
the plaintiff. Cave v. Shelor, 16 Va. 193, 193
(1811) (footnote omitted); accord Gazette, Inc., 229
Va. at 37. The of or concerning test does not require a
defamation plaintiff to be named, but instead tolerates
"personal imputation." Ewell v. Bouthwell,
138 Va. 402, 415 (1924). Statements which do not facially
refer to the plaintiff may be actionable if "the
allegations and supporting contemporaneous facts connect the
libelous words to the plaintiff," if those who know or
know of the plaintiff would "believe that the
[statement] was intended to refer to him," or if the
statement contains "a description or reference to
him." Gazette, Inc., 229 Va. at 37. "In
short, it matters not how artful or disguised the modes in
which the meaning is concealed if it is in fact defamatory.
Accordingly ... courts applying Virginia defamation law
should consider not only the words themselves but also the
inferences fairly attributable to them." Hatfill v.
New York Times Co., 416 F.3d 320, 331 (4th Cir. 2005)
(internal quotation marks and citations omitted).
so-called "exception" to the of or concerning test
is "the 'small group
theory.'"Dean v. Dearing,263 Va. 485, 487,
488 (2002). Under this theory, if a statement's
"language  is directed towards a comparatively small
or restricted group of persons, then any member thereof may
sue." Ewell v. Boutwell,138 Va. 402, 410
(1924). The small group theory "is only another way of
expressing what is fundamental-that is, that in order to
sustain the action the words of the publication (not the
words of the plaintiff interpreting the publication) must
contain the imputation against the plaintiff, or he cannot
maintain his action." Ewell, 138 Va. at 415.