2014 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-10-2014

Dolores Dawes v. Publish America LLLP

Precedential or Non-Precedential: Non-Precedential

Docket No. 13-3269

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Recommended Citation

"Dolores Dawes v. Publish America LLLP" (2014). 2014 Decisions. Paper 391.

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1

NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 13-3269

___________

DOLORES DAWES,

Appellant

v.

PUBLISH AMERICA LLLP, A Limited Liability Limited Partnership; 

PUBLISH AMERICA, INC., A Corporation

____________________________________

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 11-cv-06912)

District Judge: Honorable C. Darnell Jones, II

____________________________________

Submitted Pursuant to Third Circuit LAR 34.1(a)

March 4, 2014

Before: RENDELL, GREENAWAY, JR. and ALDISERT, Circuit Judges

(Opinion filed: April 10, 2014)

___________

OPINION

___________

PER CURIAM

Dolores Dawes appeals the District Court’s order granting a motion to dismiss 

filed by Publish America, LLLP and Publish America, Inc. (“Publish America”). For the 

reasons below, we will affirm the District Court’s order.
2

In June 2003, Dawes, a Pennsylvania resident, assigned the right to publish and 

sell her book, A Child’s Intuition, to Publish America, a company based in Maryland. 

The next year, a dispute arose between the parties concerning whether Publish America 

was performing its duties under the contract. In 2005, Dawes filed suit in state court in 

Maryland, seeking an accounting of the sales of the book and the royalties due. The 

matter was arbitrated, and in May 2007, Dawes was awarded royalties based on the sale 

of seven copies of the book. In 2009, Dawes filed a claim for copyright infringement in 

the United States District Court for the Eastern District of Pennsylvania. The District 

Court dismissed the claim because Dawes had never registered the copyright. Dawes 

appealed, and we affirmed, holding that Dawes “submitted no proof that she had 

registered her copyright or that Publish America had infringed upon her copyright after 

their contract was terminated.” Dawes-Lloyd v. Publish America, LLLP, 441 F. App’x 

956, 957 (3d Cir. 2011) (not precedential). 

Dawes filed the instant action in November 2011, alleging that Publish America 

fraudulently induced her to enter into the contract, breached the contract by failing to 

register her copyright, and infringed her copyright by selling the book without her 

permission. Publish America filed a motion to dismiss or for summary judgment. The 

District Court granted the motion to dismiss, citing Federal Rules of Civil Procedure 

12(b)(2) (lack of personal jurisdiction) and 12(b)(6) (failure to state a claim upon which 
3

relief can be granted), as well as 28 U.S.C. § 1406(a) (pertaining to “venue in the wrong 

division or district”). Dawes appealed.1 

The District Court held that dismissal was mandated by a forum selection clause in 

the contract, which provided that “Author and Publisher irrevocably submit to the 

jurisdiction of any Maryland State or Federal court sitting in the City of Frederick over 

any suit related to this agreement.”2 This was error, however, because the forum 

selection clause – which did not make jurisdiction in Maryland exclusive – was 

permissive, not mandatory.3 See Dunne v. Libbra, 330 F.3d 1062, 1063 (8th Cir. 2003) 

 

1 We note that specific personal jurisdiction has been established through the contractual 

relationship between Publish America and Dawes. See Remick v. Manfredy, 238 F.3d 

248, 256 (3d Cir. 2001) (stating that “we expressly acknowledged that in many instances, 

personal jurisdiction can arise primarily from a nonresident defendant’s contract with a 

forum resident.”). 

2

The contract also provided that “[a]ll unresolved disputes and controversies of any kind 

and nature within the scope of this agreement . . . shall be submitted to an Arbitrator . . . . 

The arbitration shall be conducted in the City of Frederick, Maryland . . ., and the 

decision of the arbitrator shall be final and binding on the parties to the proceeding, 

subject only to the right of judicial relief as prescribed by law. This agreement shall be 

governed and construed in accordance with the laws of the State of Maryland.” Publish 

America did not file a motion to compel arbitration. See Gray Holdco, Inc. v. Cassady, 

654 F.3d 444, 451 (3d Cir. 2011) (discussing waiver of right to compel arbitration).

3

If the forum selection clause was mandatory, it would be entitled to a presumption of 

enforceability. See M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 15 (1972)). But 

that presumption can be overcome when, as here, “extraordinary circumstances unrelated 

to the convenience of the parties” clearly disfavor a transfer. Atlantic Marine Const. Co., 

Inc. v. U.S. Dist. Court for W. Dist. of Tx., 134 S. Ct. 568, 581 (2013); see also Martinez 

v. Bloomberg LP, -- F.3d --, 2014 WL 114252, at *5-6 (2d Cir. 2014) (factoring

mandatory-permissive analysis into Atlantic Marine approach). Transfer under the forum 

selection clause would be useless because, as described below, Dawes’s claims are 

plainly barred.
4

(noting distinction between permissive and mandatory forum selection clauses); see also

Global Satellite Commc’n Co. v. Starmill U.K. Ltd., 378 F.3d 1269, 1272 (11th Cir.

2004) (“A permissive clause authorizes jurisdiction in a designated forum but does not

prohibit litigation elsewhere,” whereas “[a] mandatory clause . . . dictates an exclusive 

forum for litigation under the contract.” (internal quotation marks omitted)). If the 

contract does not contain a mandatory forum selection clause, then a forum non 

conveniens analysis applies. See Evolution Online Sys., Inc. v. Koninklijke PTT 

Nederland N.V., 145 F.3d 505, 509-10 (2d Cir. 1998). 

Although the District Court failed to apply such an analysis here, any error was 

harmless. The ends of justice would certainly not be furthered if we forced the District 

Court to take more action on a permissive forum selection clause that ultimately will not 

affect the outcome of the case. See Lony v. E.I. Du Pont de Nemours & Co., 886 F.2d 

628, 632 (3d Cir. 1989) (“In deciding whether to dismiss a case for forum non 

conveniens, ‘the ultimate inquiry is where trial will best serve the convenience of the 

parties and the ends of justice.’” (quoting Koster v. Lumbermens Mut. Casualty Co., 330 

U.S. 518, 527 (1947))). Here, every reasonable adjudicator, regardless of venue, would 

dismiss Dawes’s case because, as Publish America correctly alleged, her claims are 

clearly barred by the applicable statute of limitations and res judicata. See Ball v. 

Famiglio, 726 F.3d 448, 459 n.16 (3d Cir. 2013) (noting that both statute of limitations 

and res judicata may be raised in a 12(b)(6) motion to dismiss).
5

Dawes alleged that Publish America fraudulently induced her to enter into the 

contract and breached the contract by failing to register her copyright.4 We agree with 

Publish America’s contention that these claims are barred by Maryland’s three-year 

statute of limitations.

5

 See Goodman v. Praxair, Inc., 494 F.3d 458, 463-64 (4th Cir. 

2007) (recognizing that breach of contract actions in Maryland are governed by a threeyear statute of limitations); Phillips v. G.D. Searle & Co., 884 F.2d 796, 797 (4th Cir. 

1989) (stating that [u]nder the Maryland statutes, actions for . . . fraudulent 

misrepresentation are barred three years after the cause of action accrues.” (citing Md. 

Cts. & Jud. Proc. Code Ann. § 5-101)); see also Gen. Eng’g Corp. v. Martin Marietta 

Alumina, Inc., 783 F.2d 352, 358 n.5 (3d Cir. 1986) (discussing enforceability of a forum 

selection clause in Maryland). These claims accrued by 2004, when Dawes stated that 

she became aware of Publish America’s alleged failure to “honor” the contract. See 

Poffenberger v. Risser, 431 A.2d 677 (Md. 1981) (holding that, under the discovery rule, 

“the cause of action accrues when the claimant in fact knew or reasonably should have 

 

4

To the extent that Dawes alleged that Publish America infringed her copyright by 

selling the book without her permission, we agree with Publish America’s assertion in its 

motion to dismiss that res judicata bars that claim, which we rejected in a prior suit. 

Dawes-Lloyd, 441 F. App’x at 956; Federated Department Stores, Inc. v. Moitie, 452 

U.S. 394, 398 (1981) (noting that res judicata bars claims that were actually litigated or 

could have been litigated in the prior action).

5

The contract provided that it would be governed by Maryland law. See footnote 2, 

supra. Neither party has alleged that this choice of law provision is invalid or 

inapplicable. See Neely v. Club Med Mgmt. Servs., 63 F.3d 166, 180 & n.10 (3d Cir.

1995) (en banc) (concluding that “choice of law issues may be waived”).
6

known of the wrong.”). Accordingly, the fraudulent inducement and breach of contract 

claims raised in Dawes’s 2011 complaint are time-barred.6 

For the foregoing reasons, we will affirm the judgment of the District Court.

 

6 We also note that there is no merit to Dawes’s assertion that Publish America breached 

the contract by failing to register her copyright. Contrary to Dawes’s belief, the contract 

did not obligate Publish America to register a copyright. Instead, it merely stated that 

“[c]opyright shall be taken out in the name of Author in the United States, and in foreign 

countries as the Publisher may deem advisable.” See In re Burlington Coat Factory Sec. 

Litig., 114 F.3d 1410, 1426 (3d Cir. 1997) (recognizing “an exception to the general rule 

[that matters extraneous to the pleadings may not be considered on a motion to dismiss] 

is that a document integral to or explicitly relied upon in the complaint may be 

considered without converting the motion [to dismiss] into one for summary judgment.” 

(citation and internal quotation marks omitted)).