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Dankovich v. Keller

United States District Court, E.D. Michigan, Southern Division

September 15, 2017

CHRISTOPHER DANKOVICH, Plaintiff,
v.
BILL KELLER, ELI HAGER, THE MARSHALL PROJECT, JOHN DOE, and VICE NEWS, Defendants.

          David R. Grand Magistrate Judge

          OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION GRANTING IN PART AND DENYING IN PART AS MOOT DEFENDANTS' MOTION TO DISMISS [20], DENYING PLAINTIFF'S MOTION FOR TEMPORARY RESTRAINING ORDER [17], AND AFFIRMING THE ORDER DENYING PLAINTIFF'S MOTIONS FOR LEAVE TO AMEND [30, 32]

          LAURIE J. MICHELSON U.S. DISTRICT JUDGE

         Plaintiff Christopher Dankovich is currently incarcerated at the Thumb Correctional Facility in Lapeer, Michigan. (R. 1, PID 1.) He wrote an essay about his experience as a young prisoner in solitary confinement, which Defendants published online. (R. 1.) Dankovich took objection to a few revisions that were made to the published essay, most significantly the title. (Id.) These concerns form the basis of this suit.

         The Court referred the case to Magistrate Judge David Grand for all pretrial matters. (R. 4.) The Magistrate Judge has issued a Report and Recommendation regarding Defendants' Motion to Dismiss and Plaintiff's Motion for Temporary Restraining Order (“Report”) (R. 42). He recommends that the Court grant Defendants' Motion to Dismiss (R. 20) to the extent it seeks to dismiss Dankovich's Lanham Act claim. He further recommends, based on Dankovich's request, that the copyright-infringement claim be dismissed without prejudice. It follows that he recommends denying as moot Defendants' motion to dismiss that claim. It also follows that he recommends denying Dankovich's Motion for Temporary Restraining Order (R. 17) for failing to demonstrate a likelihood of success on the merits. Additionally, Magistrate Judge Grand has entered an order denying Dankovich's Motion for Leave to Amend (R. 43) and Re-Submitted Motion for Leave to Amend (R. 32) (“Order”). (R. 43.)

         Now before this Court is Dankovich's objections to both the Report and Order. (R. 44, 45.) He primarily argues that he should be granted leave to amend his complaint because he has met his pleading requirements for two state fraud claims and the Magistrate Judge did not properly analyze his Lanham Act claims. For the reasons set forth below, the Court overrules Dankovich's objections, affirms the Magistrate Judge's Order, and adopts his Report.

         I.

         A.

         In January 2016, Dankovich began an email correspondence with Defendant Eli Hager, an editor at Defendant The Marshall Project, a non-profit news organization that focuses on the criminal justice system. (R. 1, PID 45; R. 42, PID 371.) As part of that correspondence, Dankovich shared a personal essay he wrote, entitled The Riving, which dealt with “how quickly solitary confinement can institutionalize and mess with the mind of an adolescent.” (R.1, PID 48.) In response, Hager requested a few alterations and stated “[j]ust like last time, my higher-up editor will have the final say, so I don't want to make any promises. But I definitely CAN promise that if you keep working on these pieces and future submissions, you will definitely be published here.” (R. 1, PID 50.) Dankovich responded to Hager's request for changes in an April 17, 2016 email. (R. 1, PID 51.) On May 4, 2016, Dankovich received another email from Hager. (R. 1, PID 4.) According to Dankovich, Hager stated in the email that the attached version was the final edit to the essay and that it had moved to the top of the queue . (R. 1, PID 4.) Defendants have produced the email and, contrary to Dankovich's memory, the email states that the attached version was “the latest” version, not the “final” version. (R. 20-1, PID 175.)

         On or around May 19, 2016, The Marshall Project, in collaboration with Defendant VICE Media LLC, published Dankovich's essay under the title I'm Losing My Mind after Refusing to Plead Insanity for Murdering My Mom. (R.1, PID 5.) In addition to the change in title, Dankovich claims Defendants made other changes to the text of his essay, including that he pleaded no contest to the murder of his mother when he pleaded guilty, and that “around”-not “on” - his eleventh birthday he was taken to the hospital for physical abuse by his mother. (R.1, PID 11.)

         On May 30, 2016, Dankovich emailed Hager about his objections to the essay and focused primarily on the title. (R. 1, PID 55.) In the email, he stated that he did not write the title, and yet it “is written as if it were a quotation from me.” (Id.) Hager responded the next day that he was sorry Dankovich was upset by the piece, and explained that VICE Media writes the headlines and that oftentimes it is written in the first person even if it is not a quotation. (R. 1, PID 56.) Hager also stated that the factual issues Dankovich raised were changed by a fact-checker. (Id.) In a later email, Hager reported that the plea issue was corrected, and that the fact-checker made an error. (R. 1, PID 65.) Hager also stated that “I take personal responsibility for not making it clear to you that the headline would be whatever the editors decided they wanted it to be, ” but advised Defendants would not be changing the title. (Id.)

         In July 2016, Dankovich sent a cease and desist letter to the Marshall Project regarding their alleged copyright infringement. (R. 1, PID 7, 66-67.)

         B.

         In September 2016, Dankovich filed this lawsuit. He alleged only copyright infringement and violations of the Lanham Act. (R. 1.) Approximately three months later, Dankovich filed a Motion for Temporary Restraining Order. (R. 17.) About a month after, Defendants filed a Motion to Dismiss. (R. 20.) After responding to Defendants' Motion to Dismiss, Dankovich filed a Motion for Leave to Amend his Complaint, in which he sought to add a state fraud claim based upon the title of the essay. (R. 30, PID 263-264.) Dankovich subsequently filed a Re-Submitted Motion to Amend Complaint, with a proposed amendment attached. (R. 32.) The proposed amendment added a state fraud claim based upon Hager's alleged misrepresentations about which version of the essay would be published. (R. 32, PID 280-283.)

         Magistrate Judge Grand issued an Order denying both requests to amend. (R. 43.) On the same day, he recommended granting in part Defendants' Motion to Dismiss and denying part of it as moot. (R. 42, PID 375.) He also recommended denying Plaintiff's Motion for a Temporary Restraining Order. (R. 42, PID 375.) Further, consistent with Dankovich's request (made in response to Defendants' Motion to Dismiss), the Magistrate Judge recommended that Dankovich's copyright infringement claim be dismissed without prejudice. (R. 42, PID 375.) Dankovich has objected to both rulings. (R. 44, 45.)

         II.

         The Magistrate Judge's order on Dankovich's motion to amend resolved a nondispositive pretrial issue. See Baker v. Peterson, 67 F. App'x 308, 311 (6th Cir. 2003). Therefore, pursuant to 28 U.S.C. § 636(b)(1)(A) and Federal Rule of Civil Procedure 72(a), the Court will uphold the order unless it is “clearly erroneous or contrary to law.” United States v. Curtis, 237 F.3d 598, 603 (6th Cir. 2001). A factual finding is “‘clearly erroneous' when, although there is evidence to support it, the reviewing court. . . is left with the definite and firm conviction that a mistake has been committed.” Hagaman v. Comm'r of Internal Revenue, 958 F.2d 684, 690 (6th Cir. 1992) (citation omitted). A legal conclusion is “contrary to law ‘when it ...


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