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Quill Ink Books Ltd. v. Soto

United States District Court, E.D. Virginia, Alexandria Division

October 29, 2019

Quill Ink Books, Ltd. Plaintiff,
Rachelle Soto a/k/a Addison Cain, Defendant.



         This 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 process.

         1. Background

         This 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 present suit.

         Plaintiff 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 notices.

         Plaintiff 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.

         II. Legal Standard

         To 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)).

         III. Analysis

         A. Defamation (Count III)

         Plaintiff 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.

         A claim 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)).

         Defamatory 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).

         The so-called "exception" to the of or concerning test is "the 'small group theory.'"[1]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. ...

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