United States District Court, D. Nebraska
THE EDGE IN COLLEGE PREPARATION, LLC, a New York limited liability company, Plaintiff,
PETERSON'S NELNET, LLC, a Nebraska limited liability company, Defendant.
MEMORANDUM AND ORDER
M. Gerrard United States District Judge.
matter is before the Court on the defendant's motion to
dismiss (filing 12) two of the plaintiff's claims for
relief. That motion will be granted.
plaintiff, The Edge in College Preparation (ECP), specializes
in helping high school students prepare for college entrance
examinations. Filing 1 at 2. Peterson's is an educational
services company. Filing 1 at 2. The parties entered into a
publishing contract in 2015. Filing 1-1. ECP agreed to
prepare a manuscript to be published by Peterson's as
"Peterson's ACT 2016, " in exchange for $180,
000. Filing 1 at 1; filing 1-1 at 1, 4.
completed the initial portions of the manuscript and
submitted them to Peterson's, which accepted them with
minor revisions. Filing 1 at 3. But Part III of the
manuscript was, according to ECP, deficient. Filing 1 at 3.
Peterson's proposed amending the publishing contract so
that ECP would author a different publication, and
Peterson's would retain the rights to use ECP's work
on the ACT publication. Filing 1 at 3. ECP refused, and
Peterson's terminated the contract. Filing 1 at 3-4. A
balance of $120, 000 remained due at the time of the
termination. Filing 1 at 4.
alleges that Peterson's subsequently published two ACT
preparation books: "Peterson's ACT Prep Guide"
and "Peterson's ACT Prep Guide Plus." Filing 1
at 4. According to ECP, the publications are substantially
similar to the work ECP performed for Peterson's, and ECP
alleges that "[g]iven the substantial similarity between
the two works, it is inconceivable that Peterson's
prepared the Infringing Publications without referring to the
Work, for which ECP retained the intellectual property
rights." Filing 1 at 5. ECP alleges that Peterson's
referred to ECP's work and copied parts of it. Filing 1
sued Peterson's, asserting four claims for relief: breach
of contract, copyright infringement, unfair competition, and
violation of the Nebraska Uniform Deceptive Trade Practices
Act (UDTPA), Neb. Rev. Stat. § 87-301 et seq.
Filing 1 at 5-7. Peterson's moves to dismiss two of those
claims. Filing 12.
survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a
complaint must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged. Id. While the Court must accept as true all
facts pleaded by the nonmoving party and grant all reasonable
inferences from the pleadings in favor of the nonmoving
party, Gallagher v. City of Clayton, 699 F.3d 1013,
1016 (8th Cir. 2012), a pleading that offers labels and
conclusions or a formulaic recitation of the elements of a
cause of action will not do. Iqbal, 556 U.S. at 678.
Determining whether a complaint states a plausible claim for
relief will require the reviewing court to draw on its
judicial experience and common sense. Id. at 679.
moves to dismiss ECP's unfair competition and UDTPA
claims. Filing 12.
contends that ECP's unfair competition claim is preempted
by the federal Copyright Act, 17 U.S.C. § 101 et
seq. ECP grounds its claim in both Nebraska common law
and the Nebraska Consumer Protection Act, Neb. Rev. Stat.
§ 59-1602 et seq. Filing 19 at 5, 10. The Court
will begin with the common-law claim.
to § 301(a) of the Copyright Act, federal copyright law
preempts "all legal or equitable rights that are
equivalent to any of the exclusive rights within the general
scope of copyright . . . in works of authorship that are
fixed in a tangible medium of expression and come within the
subject matter of copyright." SeeDryer v.
Nat'l Football League, 814 F.3d 938, 942 (8th Cir.
2016). In determining whether federal copyright law preempts
a cause of action under state law, the Court asks (1) whether
the work at issue is within the subject matter of copyright
and (2) whether the state law created right is equivalent to
any of the exclusive rights within the general scope of
copyright as specified in § 106. Dryer, 814
F.3d at 942. If a plaintiff's state-law claim meets both