USDC IN/ND case 3:17-cv-00829 document 1 filed 11/03/17 page 1 of 7

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION

W ILLIAM J ONES , Case No. 3:17-cv-829

Plaintiff,
v.
B RIOCHE AND M AYO , LLC,
Defendant.

NOTICE OF REMOVAL

Defendant Brioche and Mayo, LLC (“Brioche and Mayo”) hereby removes this case

from the St. Joseph Circuit Court, Indiana, to the United States District Court for the Northern

District of Indiana, South Bend Division. The factual and legal grounds supporting this Notice of

Removal are described below.

I. Procedural History

1. Plaintiff William Jones (“Jones”) filed his Complaint on December 16, 2016, in

the St. Joseph Circuit Court of Indiana under Case No. 71C01-1612-CT-000548.

2. The Complaint asserted claims against Brioche and Mayo for breach of contract,

intentional infliction of emotional distress, and quantum meruit. All claims were based upon state

law, and Jones alleged that he was not seeking more than $75,000 in damages. Accordingly, the

Complaint could not be removed to federal court.

3. Brioche and Mayo moved to dismiss all counts in the Complaint, and the St.

Joseph Circuit Court denied in part and granted in part Brioche and Mayo’s motion. The St.

Joseph Circuit Court denied the motion with respect to the claims for breach of contract and

intentional infliction of emotional distress but granted the motion with respect to the claim for

quantum meruit. The St. Joseph Circuit Court gave Jones 30 days to file an amended Complaint.

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4. On October 6, 2017, Jones filed an Amended Complaint in which he asserts

claims for breach of contract, intentional infliction of emotional distress, and unjust enrichment.

5. In the claim for unjust enrichment, Jones alleges that “Defendant used Plaintiff’s

original script and rewrites, including Plaintiff’s final rewrite in the final version of the script as

filmed.” (Amended Complaint ¶ 31.)

6. Jones further alleges that “Defendant sold copies of the film, generating

significant income for Defendant,” and that “[i]t is unequitable and unconscionable for

Defendant to benefit from the Plaintiff’s work without complete payment or proper complete

credit.” (Amended Complaint ¶¶ 32, 36.)

II. The Court May Exercise Federal Question Jurisdiction.

7. The Amended Complaint may be removed to this Court because Count III of

Jones’s Amended Complaint, although styled as a claim for unjust enrichment, in fact arises

under the Copyright Act.

8. There is “complete preemption” under the Copyright Act. GlobeRanger Corp. v.

Software AG, 691 F.3d 702, 706 (5th Cir. 2012) (“We hold that Section 301(a) of the Copyright

Act completely preempts the substantive field.”); accord Ritchie v. Williams, 395 F.3d 283, 286–

87 (6th Cir. 2005); Briarpatch Ltd., L.P., v. Phoenix Pictures, Inc., 373 F.3d 296, 304–05 (2d Cir.

2004); Rosciszewski v. Arete Assocs., Inc., 1 F.3d 225, 232–33 (4th Cir. 1993).

9. “Complete preemption” makes removal proper due to original jurisdiction under

the Copyright Act and its preemptive effect on Jones’s purported state law claim for unjust

enrichment in the Amended Complaint. 28 U.S.C. §§ 1338, 1454; 17 U.S.C. § 301(a); see

Beneficial Nat’l Bank v. Anderson, 539 U.S. 1, 8 (2003).

10. “Complete preemption” results in the displacement of any state law claims and re-

characterization of them as a federal copyright claims. Vaden v. Discover Bank, 556 U.S. 49, 61
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(2009); see also, Ritchie, 395 F.3d at 289; Moran v. Rush Prudential HMO, Inc., 230 F.3d 959,

967 (7th Cir. 2000).

11. The preemption analysis under the Copyright Act involves two prongs. The first is

the subject matter prong, and the second is the equivalence prong. Seng-Tiong Ho v. Taflove, 648

F.3d 489, 500 (7th Cir. 2011); GlobeRanger Corp., 691 F.3d at 706. Under the subject matter

prong, “the work in which the right is asserted must be fixed in tangible form and come within

the subject matter of copyright as specified in § 102.” Seng-Tiong Ho, 648 F.3d at 500 (internal

quotations omitted). Under the equivalence prong, “the right must be equivalent to any of the

rights specified in § 106.” Id. (internal quotations omitted).

12. The screenplay is a “work” as defined under the Copyright Act. 17 U.S.C. §§ 101,

102. Under the Copyright Act, “[a] work is ‘fixed’ in a tangible medium of expression when its

embodiment in a copy or phonorecord, by or under the authority of the author, is sufficiently

permanent or stable to permit it to be perceived, reproduced, or otherwise communicated for a

period of more than transitory duration.” 17 U.S.C. § 101. As a result, screenplays fall within the

scope of the Copyright Act. See Heriot v. Byrne, No. 08 C 2272, 2008 WL 5397496, at *3 (N.D.

Ill. Dec. 23, 2008). Accordingly, the subject matter prong is satisfied.

13. For the unjust enrichment claim in the Amended Complaint, the equivalence

prong is satisfied.

14. For the equivalence prong, the right under a state law claim need be equivalent to

only one of the rights set forth in § 106. Seng-Tiong Ho, 648 F.3d at 500.

15. Section 106 of the Copyright Act gives a copyright owner the following rights in

his work relevant to this case:

(1) to reproduce the copyrighted work in copies or phonorecords;

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(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the
public by sale or other transfer of ownership, or by rental, lease, or
lending;

(4) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and motion pictures and other audiovisual works, to perform
the copyrighted work publicly;

(5) in the case of literary, musical, dramatic, and choreographic works,
pantomimes, and pictorial, graphic, or sculptural works, including the
individual images of a motion picture or other audiovisual work, to display
the copyrighted work publicly . . . .

17 U.S.C. § 106.

16. The claim for unjust enrichment in the Amended Complaint is premised on

multiple rights accorded to copyright owners under § 106. Jones seeks to recover based on

allegations that Brioche and Mayo “used Plaintiff’s original script and rewrites,” and that

Brioche and Mayo “sold copies of the film.” (Amended Complaint ¶¶ 31–32.)

17. To establish a claim for unjust enrichment, a plaintiff must show that: “(1) a

benefit [was] conferred upon another at the express or implied consent of such other party; (2)

allowing the other party to retain the benefit without restitution would be unjust; and (3) the

plaintiff expected payment.” Kohl’s Indiana, L.P. v. Owens, 979 N.E.2d 159, 167–68 (Ind. Ct.

App. 2012).

18. Here, Jones alleges that he conferred a benefit upon Brioche and Mayo by

conveying to it an original script and revisions that Brioche and Mayo used to create and sell a

motion picture. Thus, Jones’s claim for unjust enrichment alleges acts by Brioche and Mayo

that—if they occurred as alleged—would infringe Jones’s rights under 17 U.S.C. § 106.

19. Based upon similar allegations, a court has held that an unjust enrichment claim is

preempted by the Copyright Act, showing that the rights under an unjust enrichment claim are

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equivalent to those protected by the Copyright Act. Briarpatch, 373 F.3d at 306; see also Evan

Law Grp., LLC v. Taylor, No. 09 C 4896, 2010 WL 5135904, at *7 (N.D. Ill. Dec. 9, 2010);

Heriot v. Byrne, No. 08 C 2272, 2008 WL 5397496, at *4–5 (N.D. Ill. Dec. 23, 2008).

20. Accordingly, this Court has original jurisdiction over this lawsuit because Count

III of the Amended Complaint arises under the copyright laws of the United States. 28 U.S.C.

§§ 1331, 1338.

21. This Court has supplemental jurisdiction over the claims for breach of contract

and intentional infliction of emotional distress under 28 U.S.C. § 1367 because they are so

related to the federal claim set forth in the Complaint that they form part of the same case or

controversy.

III. Removal Is Procedurally Proper.

22. “A civil action in which any party asserts a claim for relief arising under any Act

of Congress relating to . . . copyrights may be removed to the district court of the United States

for the district and division embracing the place where the action is pending.” 28 U.S.C.

§ 1454(a).

23. Brioche and Mayo has timely removed this case under 28 U.S.C. § 1446(b)

because it has filed this Notice of Removal within 30 days after it received the Amended

Complaint. The initial Complaint was not removable because it pleaded only claims arising

under Indiana law, and Jones alleged that he was not seeking more than $75,000 in damages. The

Amended Complaint is the first document making the case removable.

24. Venue is proper in this Court under 28 U.S.C. §§ 1441 and 1454 because this case

was filed in the St. Joseph Circuit Court, Indiana.

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25. This case is not brought against a railroad or its receivers or trustees, is not

brought against a carrier or its receivers or trustees, does not arise under the workers’

compensation laws of any state, and does not arise under the Violence Against Women Act of

1994. Therefore, this case is not among the actions made non-removable by 28 U.S.C. § 1445.

26. After filing this Notice of Removal, Brioche and Mayo will promptly serve

written notice of this Notice of Removal on the lawyers representing Jones and file the notice

with the Clerk of the St. Joseph Circuit Court, Indiana, in accordance with 28 U.S.C. § 1446(d).

27. Authentic copies of all process, pleadings, and orders served on Brioche and

Mayo are attached to this Notice of Removal as Exhibit 1.

28. By removing this case from the St. Joseph Circuit Court, Brioche and Mayo does

not waive any defenses available to it.

29. By removing this case from the St. Joseph Circuit Court, Brioche and Mayo does

not admit any of the allegations in the Complaint.

Date: November 3, 2017 Respectfully submitted,

F ROST B ROWN TODD LLC

By: s/Darren A. Craig
Andre J. Correale, #28509-49
Darren A. Craig, #25534-49
201 North Illinois Street, Suite 1900
P.O. Box 44961
Indianapolis, IN 46244-0961
Telephone: (317) 237-3800
Facsimile: (317) 237-3900
Email: acorreale@fbtlaw.com
dcraig@fbtlaw.com
Attorneys for Defendant
Brioche and Mayo, LLC

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CERTIFICATE OF SERVICE

I hereby certify that on November 3, 2017, a copy of the foregoing document was served

by electronic mail and by first-class United States Mail, postage prepaid and properly addressed

to:

Andrew B. Jones
Margaret Marnocha
J ONES LAW O FFICE LLC
105 East Jefferson Boulevard, Suite 800
South Bend, IN 46601
andrew@attorney-jones.com
maggie@attorney-jones.com

s/Darren A. Craig
Darren A. Craig

4811-3225-5826v1

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