IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
DARLA YOOS, et al *
vs. * CIVIL ACTION NO. MJG-12-1696
PUBLISH AMERICA, LLLP *
* * * * * * * * *
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
The Court has before it Defendant's Motion to Dismiss and
to Strike [Document 10] and the materials submitted relating
thereto. The Court has held a hearing and had the benefit of
the arguments of counsel.
I. Summary Background
Defendant Publish America, LLLP ("PA") is a Maryland-based
enterprise that offers services to authors. Plaintiffs are
three authors of manuscripts who entered into contracts with PA
relating to book publication. Pursuant to the contracts,
Plaintiffs assigned the publishing rights to their works to PA
for seven years and paid sums for various services.
In broad terms, Plaintiffs allege that PA falsely
represented itself as a "traditional publisher," did not provide
the services for which Plaintiffs paid, and misled them in
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 1 of 11
various manners. PA denies all allegations of impropriety on
In their Class Action Complaint, Plaintiffs assert claims
in three Counts:
Count One – Federal Declaratory Judgment Act;
Count Two – Maryland Consumer Protection Act;
Count Three – Unjust Enrichment.
By the instant motion, PA seeks dismissal of all claims.
II. DISMISSAL STANDARD
A motion to dismiss filed under Federal Rule of Civil
1 tests the legal sufficiency of a complaint.
A complaint need only contain "a short and plain statement of
the claim showing that the pleader is entitled to relief, in
order to give the defendant fair notice of what the . . . claim
is and the grounds upon which it rests." Bell Atl. Corp. v.
, 550 U.S. 544, 555 (2007) (citations omitted). When
evaluating a 12(b)(6) motion to dismiss, a plaintiff's wellpleaded
allegations are accepted as true and the complaint is
viewed in the light most favorable to the plaintiff. However,
conclusory statements or a "formulaic recitation of the elements
of a cause of action" will not suffice. Id. A complaint must
All "Rule" references herein are to the Federal Rules of
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allege sufficient facts to "cross 'the line between possibility
and plausibility of entitlement to relief.'" Francis v.
Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (quoting Twombly,
550 U.S. at 557).
Inquiry into whether a complaint states a plausible claim
is "a context-specific task that requires the reviewing court to
draw on its judicial experience and common sense." Id. Thus,
if the well-pleaded facts contained within a complaint "do not
permit the court to infer more than the mere possibility of
misconduct, the complaint has alleged – but it has not shown –
that the pleader is entitled to relief." Id. (quoting Ashcroft
, 556 U.S. 662, 679 (2009))(internal quotation marks
The instant decision pertains to the claims of the
individual Plaintiffs and does not address class certification
issues. Class certification shall be considered in due course
in regard to any claims of the named Plaintiffs (putative Lead
Plaintiffs in a Class Action) that survive dismissal.
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 3 of 11
A. Declaratory Judgment
The Declaratory Judgment Act provides, in pertinent part:
In a case of actual controversy within its
jurisdiction [with exceptions not here
relevant] any Court of the United States,
upon the filing of an appropriate pleading,
may declare the rights and other legal
relations of any interested party seeking
such declaration, whether or not further
relief is or could be sought.
28 U.S.C. § 2201(a).
In effect, a declaratory judgment can be thought of as a
remedy that may be available to a prevailing party on the
party's substantive claims. Therefore, Count One does not
present free-standing claims.
As discussed on the record of proceedings held August 25,
2012, the availability to Plaintiffs of declaratory judgment
relief should be considered in conjunction with, or after, the
resolution of Plaintiff's substantive claims.
B. Maryland Consumer Protection Act
For present purposes, it suffices to state that the
Maryland Consumer Protection Act, Md. Code Ann., Com. Law § 13-
101 et seq. ("MCPA") provides relief with regard to deceptive
trade practices relating to consumer goods and service.
Plaintiffs allege that PA engaged in at least some
deceptive trade practices in regard to its dealings with them.
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 4 of 11
However, PA asserts that Plaintiffs do not allege facts
sufficient to present a plausible claim that the services at
issue constitute consumer services covered by the MCPA.
The MCPA defines the term "consumer" to include "an actual
or prospective purchaser . . . or recipient of . . . consumer
services." Id. § 13-101(c)(1). The term "consumer services" is
defined as "services which are primarily for personal,
household, family, or agricultural purposes." Id. § 13-101(d).
The Complaint does not clearly, if at all, enable the Court
to determine the particular factual allegations upon which
Plaintiffs base the contention that the claims in Count Two
would be covered by the MCPA. Indeed, Plaintiffs do not specify
which of the alleged deceptive trade practices are the subjects
of the MCPA claims. Plaintiffs' incorporation by reference of
120 prior paragraphs is insufficient.
As well-stated by Judge Fawsett of the Middle District of
Florida, "Plaintiffs in federal court are permitted to plead in
the alternative . . . but they are not permitted to plead 'in
the ambiguous.'" J & J Sports Prods., Inc. v. Torres, No. 6:09–
cv–391–Orl–19DAB, 2009 WL 1774268 at *3 (M.D. Fla. June 22,
Plaintiffs must note that, in considering whether each
Plaintiff is a "consumer" for purposes of any MCPA claim, it may
be pertinent to consider the Plaintiff's particular
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 5 of 11
circumstances and the particular consumer services as to which
relief is sought.
Each Plaintiff simply alleges his/her name, place of
residence and that he/she contracted with PA to publish a book.
Plaintiffs do not allege facts relating to their pertinent
background and cannot – on the face of the pleading – be assumed
to be seeking publication "primarily for personal," as distinct
from commercial, purposes.
Moreover, a particular good or service cannot be said, in
the absence of a particular context, to be a consumer good or
service. For example, a can of beans bought for home
consumption would be a consumer good. However, the same can of
beans bought by the owner of a restaurant for sale to customers
may not be. Similarly, a house cleaning service for a resident
homeowner would be a consumer service but the same service for
the landlord owner of a rented house may not be.
Also, PA contends that at least some of the alleged
"consumer services" are services that cannot plausibly be
considered primarily for personal purposes, e.g., services
relating to the sales, rather than literary aspects, of a book.
The Court is not now addressing the question of whether any such
services necessarily are non-consumer services. However, in an
Amended Complaint, Plaintiffs should allege facts sufficient to
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present a plausible claim that the services in issue are
In sum, Count Two must be redrafted to clearly and
unambiguously indicate the factual allegations on which
Plaintiffs contend they have made a plausible claim for
treatment of themselves as consumers and treatment of the
services at issue as consumer services.
C. Unjust Enrichment
Although Plaintiffs are basing their suit on the formation
and operation of their contract(s) with PA, they present a noncontractual
unjust enrichment claim. They contend this is
proper because PA committed fraud in the formation and
maintenance of the contracts. See Kwang Dong Pharm. Co. v. Myun
Ki Han, 205 F. Supp. 2d 489, 497 (D. Md. 2002).
However, Plaintiffs do not specify which of PA's actions
and inactions are relied upon to establish fraud or bad faith.
In ¶ 125 of the Complaint, Plaintiffs incorporate by reference
"all preceding paragraphs." In the remainder of the paragraphs
in Count Three, Plaintiffs do not expressly state that PA acted
fraudulently or in bad faith but provide conclusory allegations
that it would be inequitable for PA to retain publication rights
and payments. In the Opposition to the instant motion,
Plaintiffs state that they "allege just such fraud or bad faith.
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 7 of 11
See, e.g., ¶¶ 117-18, 24-25 [of the Complaint]." Opp'n 31.
However, paragraphs 117-19 include sweeping references to PA's
"representations on its websites and other promotional
materials" without enlightenment as to which representations and
which materials are being relied upon. Plaintiffs' reference to
"24-25" may be a typographical error. Paragraphs 24 and 25 of
the Complaint present published articles critical of PA. It is
unlikely that Plaintiffs were referring to paragraphs 124 and
125 of the Complaint. Paragraph 124 states that Plaintiffs seek
damages on their MCPA claims. Paragraph 125 is, as noted above,
an incorporation by reference of the contents of all of
paragraphs 1 through 124.
Count Three must be redrafted to present clearly and
unambiguously the alleged facts on which the claim is based,
with appropriate specificity in regard to allegations of fraud.
D. The Omitted Claims - Breach of Contract and Fraud
Plaintiffs, understandably, would prefer to have the case
proceed as a class action rather than one based on their
individual claims. However, at present, the Court must defer
considerations of class certification until the putative class
claims are identified and survive PA's dismissal motion.
Plaintiffs are, obviously, well aware of the allegations
that they can now make to present claims for breach of contract
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 8 of 11
and fraud. Plaintiffs can, if they choose, include their breach
of contract and/or fraud claims in an Amended Complaint. Or,
Plaintiffs can file an Amended Complaint that omits these
claims. However, they cannot omit their breach of contract and
fraud claims from an Amended Complaint, await rulings based on
that pleading, and expect to be granted leave to file a Second
Amended Complaint presenting the intentionally omitted claims.
E. Motion to Strike
PA seeks to have the Court strike from the Complaint
paragraphs 23 through 35 that present allegedly irrelevant
derogatory comments about it.
Paragraphs 23 through 33 and 35 present excerpts from
published writings presenting opinions derogatory to PA that
appear to be excludable from evidence on at least hearsay
grounds. Paragraph 34, while referring to a published item,
makes the potentially material factual allegation that the
elimination of negative reviews from the PA website perpetuates
deceptive business practices.
Rule 12(f) provides that "the court may strike from a
pleading an insufficient defense or any redundant, immaterial,
impertinent, or scandalous matter." Fed. R. Civ. P. 12(f).
However, "Rule 12(f) motions are generally viewed with disfavor
because striking a portion of a pleading is a drastic remedy and
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because it is often sought by the movant simply as a dilatory
tactic." Waste Mgmt. Holdings, Inc. v. Gilmore, 252 F.3d 316,
347 (4th Cir. 2001) (internal quotation marks omitted).
PA's motion to strike is not a dilatory tactic and
paragraphs 23 through 33 and 35 are immaterial and, while not
literally "scandalous," constitute gratuitous slamming of PA.
Nevertheless, the said paragraphs are quotations from
publications that, no doubt, had far wider circulation than the
Complaint ever will. Indeed, the Complaint is hereby being
dismissed, will be superseded by an Amended Complaint, and is
unlikely to cause any harm to PA.
Under the circumstances, the Court will not go through the
meaningless exercise of striking the paragraphs at issue.
However, the Court will prohibit the inclusion of these
paragraphs in an Amended Complaint absent a showing of
For the foregoing reasons:
1. Defendant's Motion to Dismiss and to Strike
[Document 10] is GRANTED IN PART.
2. The Complaint is dismissed without prejudice.
3. By September 30, 2012, Plaintiffs may file an
Amended Complaint consistent herewith.
Case 1:12-cv-01696-MJG Document 17 Filed 09/04/12 Page 10 of 11
a. The Amended Complaint shall include any
claims Plaintiffs may seek to assert in the
instant case for common law fraud and breach
b. The Amended Complaint shall not include the
contents of ¶¶ 23–33 and 35 of the Complaint
except to the extent the Court may, on
motion, permit supplementation of the
Amended Complaint to include such matters.
SO ORDERED, on Tuesday, September 4, 2012.
Marvin J. Garbis
United States District Judge