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Casterlow-Bey v. Trafford Publishing Co.

United States District Court, W.D. Washington, Tacoma

July 31, 2018

GARY CASTERLOW-BEY, Plaintiff,
v.
TRAFFORD PUBLISHING COMPANY, Defendant.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          ROBERT J. BRYAN UNITED STATES DISTRICT JUDGE

         This matter comes before the Court on Defendant Trafford Publishing Company's (“Trafford”) Motion for Summary Judgment. Dkt. 51. The Court has considered the pleadings filed regarding the motion and the remainder of the record herein.

         This case arises from the Defendant's alleged failure to pay pro se Plaintiff Gary Casterlow-Bey royalties on books he authored. Dkt. 7. Defendant now moves for summary dismissal of the claims asserted against it pursuant to Fed.R.Civ.P. 56. Dkt. 51. Plaintiff was given a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir 1998) on June 29, 2018. Dkt. 56. Plaintiff filed two responses to the motion. Dkts. 55 and 57. The motion for summary judgment (Dkt. 51) should be granted because Plaintiff's claims are barred by res judicata, Plaintiff fails to point to genuine issues of material fact, and Defendant is entitled to a judgment of dismissal as a matter of law.

         I. BACKGROUND FACTS AND PROCEDURAL HISTORY

         A. BACKGROUND FACTS

         In 2006, Plaintiff contracted with Trafford Holdings, Ltd. (“Trafford”) to self-publish his book Through the Eyes of a Gangster; and in 2008, he contracted with Trafford to self-publish Through the Eyes of a Gangster II. Dkts. 7 at 2 and 53-2, at 1-2. (According to the Defendant, “Trafford Publishing Company, ” the named Defendant in this case, never existed. Dkt. 53, at 1. The Defendant has construed the Complaint as referring to “Trafford Publishing, ” which, Defendant maintains, is the trade name of Get Published! LLC, which is a subsidiary of Author Solutions, LLC. Id. In 2009, Trafford's assets were purchased by what is now Author Solutions, LLC. Id. Plaintiff offers no evidence to the contrary. Accordingly, the Court will construe the claims made in the Complaint against the answering Defendant Trafford Publishing.) Trafford states that, “[a]s a result of the 2009 transaction and the passage of time, Trafford does not have a copy of Plaintiff's signed contracts for his first two novels.” Dkt. 53, at 2. The record contains a copy of the form contracts used at the time. Dkt. 53.

         Plaintiff acknowledges in the Complaint that he and Trafford “reached another agreement, ” in 2014, to publish a third book, Wildflower. Dkt. 7, at 2. On December 7, 2013, Plaintiff entered (via an electronic signature) an Author Agreement to Trafford['s] Terms and Conditions (Dkt. 53-3) and an Installment Payment Agreement (Dkt. 53-4). Plaintiff paid an initial payment of $500.00, and agreed to pay a remaining $940.00 in two monthly installments to purchase Trafford's “Tablet Black & White Publishing Package.” Dkt. 53, 53-2, 53-3 and 53- 4. Plaintiff defaulted on this plan, and Trafford agreed to allow Plaintiff to buy a discounted Novo package in April of 2014. Dkts. 53, at 4; 53-5, and 53-6, at 4.

         In May of 2014, Trafford states that Plaintiff informed it he was in jail and was given information about a niece who would help him. Dkt. 53-6, at 2.

         Trafford asserts that on June 28, 2014, Plaintiff entered into a Service Agreement, which replaced the December 7, 2013 Author Agreement. Dkt. 53, at 3. In support of its' motion for summary judgment, Trafford points to this June 28, 2014 contract, entitled “Self-Publishing Services Agreement, ” containing Plaintiff's electronic signature, an address of “15007 Weststorm LN SW, Lakewood, WA 98498, ” and an email address of “garycasterlow@78gmail.com.” Dkt. 53-7.

         Plaintiff contends that the June 28, 2014 contract in Trafford's records is “falsified and forged” and that he did not sign it. Dkt. 57, at 1. He contends that the “Weststorm Lane” address in Lakewood, Washington and the listed phone number do not exist. Id. Plaintiff maintains he was in jail at the time, and could not have signed this document. Dkt. 55, at 2.

         On July 25, 2014, from the email address on the June 28, 2014 contract, Plaintiff emailed Nick Arden, of Trafford, returning electronically signed copies of an “Interior Sign-Off and Pricing” document and a “Cover Sign-Off, ” regarding Wildflower, which, in part, provided that: [b]y signing this form, I attest that the interior is ready and distribution. By distribution, we mean the book will be made available for public sale on retail websites like the Trafford bookstore, Amazon, Barnes and Noble, and other online retail websites.” Dkt. 53-9, at 3-4 (emphasis in original).

         Trafford states that it distributed all three books in accordance with the agreements with Plaintiff. Dkt. 53, at 3. It notes that once a book is sold, and then offered by a third party seller, Trafford has no ability to set the price and such sales do not qualify for royalty payments. Id.

         While Plaintiff maintains in some pleadings that he “has not received a royalty payment on any book sale from [Trafford] since 2009, ” (Dkt. 57, at 2) in other pleadings, Plaintiff acknowledges that “from 2009 until 2017[, ] Plaintiff has received approximately five (5) royalty payments that grossed less than $500” (Dkt. 7, at 3). Trafford's records are in accord: between January 2007 and July 2009, Plaintiff sold 116 copies of his books that resulted in $101.57 in royalty payments; between October 2009 and July 2017, Plaintiff sold an additional 86 copies, resulting in $173.46 in royalty payments. Id., at 28-31 and 41-44. Trafford also points to some checks which were cashed by Plaintiff or his designee. Dkt. 53-11, at 1-3.

         B. PLAINTIFF' COMPLAINT AND DEFENDANT'S SUBSEQUENT ACTION

         On June 14, 2017, Plaintiff, while a prisoner in the Pierce County, Washington, Jail, filed this case. Dkt. 1. His Complaint makes claims for a breach of contract (for failure to pay him royalties), copyright infringement, and fraud. Dkt. 7. The Complaint also asserts that the forged contract “was on its face a deliberate conspiracy to deny [Plaintiff] adequate compensation for his copyrighted work;” and that Trafford's actions “rise to the level of criminal activity, i.e. fraud, forgery, and criminal conspiracy.” Id. Plaintiff seeks an order requiring Trafford to “cease and desist all sales” of Plaintiff's books and $10 million in damages. Id.

         On September 19, 2017, Trafford wrote Plaintiff a letter, construing statements made in the Complaint in this case as a “notice by [Plaintiff] exercising [his] right to terminate the agreements governing the publishing and selling of [his] books.” Dkt. 53, at 12. Accordingly, Trafford stopped distributing all Plaintiff's books. Id.

         C. OTHER CASES FILED REGARDING PLAINTIFF'S BOOKS

         This is one of several cases the Plaintiff has filed regarding his books in U.S. District Court for the Western District of Washington. Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB Casterlow-Bey v. Ebay.com, case number 17-5687 RJB; Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB; Casterlow-Bey v. Barnes and Nobles, case number 17-5834; and Casterlow-Bey v. Barnes and Nobles, case number 17-5871.

         On August 30, 2017, Plaintiff filed a case against Amazon and Google asserting they committed copyright infringement when Plaintiff's books were sold on their website. Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB, Dkt. 1-1. On January 18, 2018, Defendants Amazon and Google's motions to dismiss pursuant to Fed.R.Civ.P. 12 were granted and the case was dismissed with prejudice. Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB, Dkt. 27.

         On August 30, 2017, Plaintiff filed a case against Ebay.com, asserting that Ebay.com committed copyright infringement, breached a contract, and committed fraud when it sold Plaintiff's books. Casterlow-Bey v. Ebay.com, case number 17-5687 RJB, Dkt. 1-1. Plaintiff sought injunctive relief and several million dollars in damages in that case. Id. Ebay.com moved to dismiss the claims asserted against it, in part, based on Plaintiff's failure to show that his books are registered with the U.S. Copyright Office; the motion was granted and the case was dismissed with prejudice on January 8, 2018. Casterlow-Bey v. Ebay.com, case number 17-5687 RJB, Dkt. 25.

         On October 13, 2017, Plaintiff filed a case against “Barnes and Nobles, ” moved to proceed in forma pauperis (“IFP”), and provided a proposed complaint asserting that Defendant “Barnes and Nobles” committed copyright infringement, breached a contract, and committed fraud when it sold Plaintiff's books. Casterlow-Bey v. Barnes and Nobles, case number 17-5834, Dkts. 1 and 1-1. Plaintiff made reference to the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1962, (“RICO”). Id. Plaintiff sought several million dollars in damages. Id. Barnes and Noble's motion to dismiss was granted, Plaintiff's claims were dismissed and the case is closed. Casterlow-Bey v. Barnes and Nobles, case number 17-5834, Dkt. 20.

         In October of 2017, Plaintiff filed Casterlow-Bey v. Barnes and Nobles, case number 17-5871, moved for IFP, and provided a proposed complaint again asserting that Defendant “Barnes and Nobles” committed copyright infringement, breached a contract, and committed fraud when it sold Plaintiff's books. Casterlow-Bey v. Barnes and Nobles, case number 17-5871, Dkts. 1 and 1-1. Plaintiff again made reference to RICO violations. Id. Plaintiff sought injunctive relief and several million dollars in damages. Id. His motion for IFP was denied because the case was duplicative of the other cases he had already filed. Casterlow-Bey v. Barnes and Nobles, case number 17-5871, Dkt. 4. After being given an opportunity to pay the filing fee if he wished to continue with the case, the case was dismissed for failure to pay the filing fee. Casterlow-Bey v. Barnes and Nobles, case number 17-5871, Dkt. 5.

         Of particular note here, Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB was filed on October 13, 2017; Plaintiff's proposed complaint in that case asserted that the Defendants (Amazon.com, Google.com, Barnes and Noble.com, eBay.com and Trafford) infringed on the copyrights he had on his books and violated RICO. Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkts. 1 and 5. This Complaint also alleged that Trafford “has a forged, fraudulent contract” for Wildflower - An Urban Tale, “signed by some unknown person, with non-existent address . . . with a phone number Plaintiff has never had.” Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 5. He maintained that this “bogus, illegal contract authorizes international sales of all three books.” Id. The Plaintiff alleged that all of the books' copyrights belong to him, and the “theft, unlawful distribution of all three of these copyrighted materials, done nationally and internationally by Defendants in a continuous ‘covert operation' designed to deprive Plaintiff of the royalties from sales of all three books since 2006.” Id. The Plaintiff maintained that he had “proof of numerous sales from Defendants' websites.” Id. He also made reference to fraud. Id. Plaintiff sought several million dollars in damages. Id.

         On March 19, 2018, the Defendants' motions to dismiss in Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB were granted, Plaintiff's claims were dismissed with prejudice, and the case closed. Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 58. Plaintiff's claims for copyright violations were dismissed because Plaintiff failed to demonstrate that he had a copyright on any book other than Wildflower and he failed to allege any facts in support of a claim for violation of the Copyright Act. Id. Plaintiff's RICO claim was dismissed because he failed to identify any RICO predicate acts. Id. His claims for fraud were dismissed because he failed to plead any facts which would support his claim of fraud against any of the Defendants, much less with particularity. Id. In declining to give Plaintiff leave to amend, the undersigned found:

At this stage, it is absolutely clear that no amendment can cure the defects in Plaintiff's Complaint. In two other cases, Plaintiff was notified of the deficiencies in the complaints (which are the same deficiencies here against some of the same Defendants here) and given leave to amend. Casterlow-Bey v. Ebay.com, case number 17-5687 RJB, Dkts. 21 and 25; and Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB, Dkts. 25 and 27. He did not do so in either case, and so the cases were dismissed with prejudice. Id. Further, Plaintiff did not respond to Barnes and Noble's motion to dismiss Plaintiff's claims for copyright infringement and RICO violations in Casterlow-Bey v. Barnes and Nobles, case number 17-5834. (The grounds for the motion to dismiss there were the same or similar to the issues raised in this case and in Casterlow-Bey v. Ebay.com, case number 17-5687 RJB, Dkts. 21 and 25; and Casterlow-Bey v. Google.com, Inc., number 17-5686 RJB.) Accordingly, case number 17-5834 was dismissed with prejudice. Defendants have filed separate replies in this case each time the motions to dismiss were ripe for review or where, due to Plaintiff's late filings, Defendants assumed Plaintiff was not going to respond. Dkts. 44-47; 49-51 and 53-57. Plaintiff has been given multiple warnings and has failed to address the basic deficiencies in any of his complaints, including the one filed in this case.
Accordingly, Plaintiff should not be given leave to amend. The claims should be dismissed with prejudice ...

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