HARRISBURG – For jurisdictional and other reasons, a Pennsylvania publisher is seeking to dismiss class action claims from more than three dozen comic creators who alleged that the organization showed a lack of communication, statements, marketing, changed publishing plans and failed to pay them.
Tom Rogers (on behalf of himself and all others similarly situated) first filed suit in the U.S. District Court for the Middle District of Pennsylvania on Jan. 31 versus Action Lab Entertainment of Uniontown and Bryan Seaton, of Canonsburg.
“ALE signed multiple creators to contracts with the promise of having creators’ properties put into print (as opposed to digital). ALE provided each creator a handbook. In the handbooks, ALE promised to have creators’ works released in print, acknowledged its obligations to promote and market creators’ works and acknowledged its obligations to report sales and income on a quarterly basis to all creators,” the suit said.
“ALE failed to put into print a large number of projects, failed to properly market and promote creators’ projects, failed to report sales and income to creators on a quarterly basis despite providing sample sales reports to creators, failed to properly maintain social media accounts, failed to retain persons to carry out its promises to creators and failed to do the bare minimum to drum up retailer support.”
The suit said ALE “changed terms of agreements, closed offices and furloughed or laid off staff without informing creators and did not routinely communicate with creators, often wholesale ignoring communications from creators.”
The suit went on to detail these instances with all 38 plaintiffs, all of whom say they were negatively affected by the company’s practices.
“The ALE offices were shut down without reason from Dec. 16, 2019 to Jan. 6, 2020, during which time creators were not being paid and marketing was nor being conducted. Shawn Pryor was unable to pay any creators during this period of time. Defendant Seaton later told creators that the offices were closed for the holidays and all due payments should have been issued prior to Dec. 16, 2019. Defendant Seaton told creators that Mr. Pryor has been incapable of handling the company and left in January of 2020,” the suit said.
“In February of 2020, defendant Seaton claimed to have allegedly resigned and no one was left in charge of the company because the supposed board of directors did not replace the president. ALE shut down again in March of 2020 but did not tell any of its creators. During this time no work was performed by ALE and no creators were paid. ALE told its creators that it reopened during the last week of June 2020.”
The suit continued that the company stopped releasing material and stopped paying publishers for books which had been released recently.
“ALE told its creators that Diamond had closed in March, immediately stopped releasing all planned new releases, stopped sending sales reports, and stopped paying all publishers monies owed for books sold in February and March. ALE further said that Diamond reopened in June of 2020, started shipping new releases already in the Diamond warehouse, and started paying publishers monies owed under a 13-week repayment plan,” the suit stated.
“By email dated June 30, 2020, ALE declared that Bryan Seaton was still CEO/Publisher of ALE but had decided to step down, and ‘the board’ had not replaced him or the company’s then-president. Bryan Seaton is still running ALE.”
UPDATE
Subsequent to the filing of an amended complaint on April 1, the defendant motioned to dismiss the case on April 15 for lack of subject matter jurisdiction.
“The amended complaint does not identify any claims that are within the original subject-matter jurisdiction of this Court because it does not identify a viable claim arising under federal law or allege any way in which this action is a class action, a mass action, or otherwise meets the requirements for diversity jurisdiction pursuant to 28 U.S.C. Section 1332. This Court cannot exercise supplemental jurisdiction over any part of this action without such a claim,” per the dismissal motion, in part.
“This Court should dismiss the amended complaint pursuant to 28 U.S.C. Section 1406 because this Court is not a proper venue for this action. Neither of the Defendants resides within the territorial jurisdiction of this Court within the meaning of 28 U.S.C. Section 1391, none of the transactions or occurrences that plaintiffs allege in the amended complaint occurred here, and this action could have been brought in at least one different district court.”
The dismissal motion went on to say that the amended complaint “does not allege that any of the plaintiffs registered their claimed copyrights prior to bringing this action and never alleges that anyone acted or refrained from acting on the basis of any purportedly false statement that Seaton is alleged to have made to him or her.”
“Also in the event that this Court does not dismiss the amended complaint in its entirety, this Court should strike the demand for attorney’s fees that appears in every count of the amended complaint. Particularly in the absence of copyright registration, there is no exception to the American Rule that might apply to any of these claims,” the motion stated.
“Finally and in any event, this Court should direct plaintiffs to submit a more definite statement of any claims that remain before it. The amended complaint lacks the clarity necessary (generally and under Local Rule 23.2 of this Court) to allow this Court or defendants to identify the proposed class representative(s), to understand why he or they believe that he or they will be an adequate representative, to identify the provisions of Rule 23 of the Federal Rules of Civil Procedure under which he or they hope to proceed, or to understand why plaintiffs believe that they can do so.”
For counts of breach of contract, declaratory judgment and fraud, the plaintiffs are seeking injunctive relief, a declaratory judgment from this Court that ALE breached its agreements with the creators and that ALE has no further right to print, sell, publish, distribute, advertise, publicize and exploit any of the properties named herein or otherwise entered into with members of the creators class not named herein, monetary damages, attorney’s costs and fees, and any additional damages the Court deems appropriate.
The plaintiff is represented by Michael S. Katz of Lopez McHugh, in Moorestown, N.J.
The defendants are represented by Stuart C. Gaul Jr. of Bernstein-Burkley, in Pittsburgh.
U.S. District Court for the Middle District of Pennsylvania case 1:22-cv-00159
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com