UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

ANGELA BROOKS-NGWENYA, )

)

Plaintiff, )

)

v. ) Cause No. 1:16-cv-193

 )

BART PETERSONS’ MIND TRUST, )

)

Defendant. )

OPINION & ORDER

This is one of many cases brought by Angela Brooks-Ngwenya, alleging

infringement of her copyright on materials she developed for the Transitioning into

Responsible Students (TIRS) educational program.1

 The target this time is Bart

Petersons’ [sic] Mind Trust which has moved to dismiss on grounds that the amended

complaint does not state a plausible claim for relief. (DE 99.) Brooks-Ngwenya has filed

two motions for judgment on the pleadings and a motion for a preliminary injunction.

(See DE 91; DE 102; DE 107.) For the reasons below, the defendant’s motion to dismiss is

granted, and the plaintiff’s motions are denied.

Background

The amended complaint makes a number of allegations about individuals and

companies that have never been defendants in this matter, yet has very little to say

1 The others are Brooks-Ngwenya v. Nat’l Heritage Acads., No. 1:16-cv-183

(N.D. Ind. May 26, 2016); Brooks-Ngwenya v. The Mind Trust, No. 1:15-cv-1648 (S.D. Ind. 

Sept. 15, 2015); Brooks-Ngwenya v. Indy. Pub. Schs., No. 1:13-cv-152 (S.D. Ind. Jan. 28,

2013); Brooks-Ngwenya v. Indy. Pub. Schs., No. 1:07-cv-67 (S.D. Ind. Jan. 18, 2007); BrooksNgwenya v. Thompson, No. 1:05-cv-1469 (S.D. Ind. Oct. 3, 2005).
about the Mind Trust. (See DE 54.) The sole mention of the Mind Trust by name is the

assertion that in “2006, Ex-Mayor Bart Peterson established the Mind Trust and is

currently promoting TIRS to for-profit entrepreneurs.” (DE 54 at 3.) Giving the

amended complaint the most generous reading I can, it arguably alleges the following

claims: (1) contributory/secondary infringement by the Mind Trust; (2) intentional or

negligent infliction of emotional distress by Bart Peterson and the Mind Trust; and

(3) breach of contract by Indianapolis Public Schools. (Id. at 1–4, 6.)

The Mind Trust has moved to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6). (DE 99.) To survive a 12(b)(6) motion, “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, 663 (2009) (internal quotation marks and citations

omitted); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). I must accept as true

all factual allegations in the complaint and draw all reasonable inferences in favor of the

plaintiff, but I am not required to accept “threadbare recitals of a cause of action’s

elements, supported by mere conclusory statements.” Iqbal, 556 U.S. at 663. Because

Brooks-Ngwenya is representing herself, I must construe her complaint liberally. See

Erickson v. Pardus, 551 U.S. 89, 94 (2007).

Contributory/Secondary Infringement

To state a claim of contributory infringement, a complaint must allege that: (1) a

third party infringed the plaintiff’s registered copyright; (2) the defendant knew about

that infringement; and (3) the defendant materially contributed to it. Monotype Imaging,

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Inc. v. Bitstream, Inc., 376 F. Supp. 2d 877, 883 (N.D. Ill. 2005). The amended complaint

here alleges none of these elements. Brooks-Ngwenya alleges that Bart Peterson used her

program to create his own educational program, which was then implemented at a

charter school. (See DE 54 at 2.) But this falls far short of what’s required to show

infringement because there is no allegation that Peterson copied the plaintiff’s text or

used it to create derivative works. See Janky v. Lake Cty. Convention & Visitors Bureau, 576

F.3d 356, 361 (7th Cir. 2009) (citing Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340

(1991); Twentieth Century Music Corp. v. Aiken, 422 U.S. 151 (1975)). As the Seventh

Circuit explained in a similar case brought by the plaintiff:

Copyright protection does not extend to any idea, procedure, process,

system, method of operation, concept, principle, or discovery, regardless of

the form in which it is described, explained, illustrated, or embodied in such

work. It is not the idea that is protected, but rather the original expression of

the idea.

Brooks-Ngwenya v. Indy. Pub. Schs., 564 F.3d 804, 808 (7th Cir. 2009) (internal quotation

marks and citations omitted); accord See Pivot Point Intern., Inc. v. Charlene Prods., Inc.,

372 F.3d 913, 929 (7th Cir. 2004) (stating that copyrights protect “the particularized

expression of an idea”). 

Nor does Brooks-Ngwenya’s claim in her response brief that Peterson “copied

the language” of her educational program cure this shortcoming. (DE 101 at 2; see also

DE 1-1; DE 1-3 (directing the court’s attention to summaries that plaintiff believes show

structural similarities between her and Peterson’s programs).) To begin with, a

complaint cannot be amended by a brief opposing a motion to dismiss. Car Carriers, Inc.

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v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984). Second, adding the words “copied

the language” to the amended complaint would amount to adding a legal conclusion

without supporting factual allegations of similarities between the TIRS text and any

written materials Peterson wrote. The amended complaint must allege facts suggesting

“that the two works share enough unique features to give rise to a breach of the duty

not to copy another’s work[,]” and it simply doesn’t do that. See Peters v. West, 692 F.3d

629, 633 (7th Cir. 2012). 

The amended complaint also fails to allege that the Mind Trust knew about or

materially contributed to infringement by Peterson. (See generally DE 54 at 2–3.) Indeed,

most if not all of Peterson’s allegedly infringing conduct took place prior to the creation

of the Mind Trust in 2006, so it’s hard to see how the Mind Trust could have been

involved.

For all of these reasons, the amended complaint does not state a plausible claim

of contributory infringement, and Count One must be dismissed.

“Wrongful” Infliction of Emotional Distress

I’m not entirely sure that Brooks-Ngwenya meant to allege this count against the

Mind Trust. The claim incorporates by reference allegations against Bart Peterson and

the National Heritage Academies, Inc., both non-parties, and further claims:

That Plaintiff was denied employment in the promotion of [TIRS] and [the]

Mayors Sponsored Charter Schools. 

. . . 

[And] [t]he act of ignoring Plaintiffs Copyrights for The Transitioning Into

Responsible Students by Ex-Mayor Bart Peterson is conduct of wrongful

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harassment, was premeditated, intentional, negligent and reckless disregard

to the Plaintiff’s . . . rights, and has caused Plaintiff to undergo severe

emotional distress.

(DE 54 ¶¶ 21–22.) The paragraphs that follow vaguely refer to “the defendant” and to

the defendant’s “conduct of excluding Plaintiff and not allowing her to participate in

the promotion of her intellectual property” and “ignoring and continuing to utilize her

intellectual property.” (Id. ¶¶ 23–24.) These references strongly suggest that the

“defendant” referred to in Count Two is not the Mind Trust, but Peterson, who, of

course, is not a party.

But even if this claim could somehow be read to plead a claim against the Mind

Trust, it has to be dismissed because it is, at best, a “threadbare recital[] of a cause of

action’s elements, supported by mere conclusory statements.” See Ashcroft v. Iqbal, 556

U.S. at 663. The complaint barely alleges the elements of an intentional infliction of

emotional distress claim—that the Mind Trust (1) engaged in extreme and outrageous

conduct; (2) intentionally or reckless; (3) that caused; (4) severe emotional distress—let

alone necessary supporting facts. See Curry v. Whitaker, 943 N.E.2d 354, 361 (Ind. Ct.

App. 2011). The only hints of what the plaintiff thinks was “extreme and outrageous”

conduct by the Mind Trust are the section headers announcing the plaintiff’s

contributory infringement and breach of contract claims, and that’s just not enough to

plead a claim. Further, even if the Mind Trust did contribute to infringement of the

plaintiff’s copyright or breach a contract with her, neither would amount to conduct “so

outrageous in character, and so extreme in degree, as to go beyond all bounds of

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decency, and to be regarded as atrocious and utterly intolerable in a civilized

community.” Bradley v. Hall, 720 N.E.2d 747, 753 (Ind. Ct. App. 1999). 

Finally, to the extent that Brooks-Ngwenya intended Count Two to plead

negligent infliction of emotional distress, it still must be dismissed because such a claim

under Indiana law requires a “direct physical impact.” See Conder v. Wood, 716 N.E.2d

432, 434 (Ind. 1999). Brooks-Ngwenya alleges psychological harms, including “a

continuing fear of presenting future program initiatives,” but no physical impact of any

sort. (DE 54 at 5.) 

For all of these reasons, Count Two must be dismissed.

Breach of Contract

Count Three alleges that Indianapolis Public Schools breached a contract with

the plaintiff and reiterates plaintiff’s allegations about copyright infringement by

Peterson. (DE 54 at 6.) No where in the amended complaint does Brooks-Ngwenya

allege that she had a contract with the defendant, and it should go without saying that

there can be no breach if there was no contract. Count Three must be dismissed.

Conclusion

Accordingly, the Mind Trust’s Motion to Dismiss (DE 99) is GRANTED, and the

amended complaint is DISMISSED WITHOUT PREJUDICE. The plaintiff’s motions

for judgment on the pleadings (DE 91; DE 102), her related motion to strike (DE 111),

and her motion for preliminary injunction (DE 107) are DENIED as moot. The plaintiff

is GRANTED leave to file a second amended complaint that addresses the many

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deficiencies identified above by no later than June 19, 2017, and is CAUTIONED that

failure to do so will result in dismissal of this case with prejudice.

SO ORDERED.

ENTERED: May 22, 2017.

 s/ Philip P. Simon 

JUDGE, UNITED STATES DISTRICT COURT

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