United States District Court, D. Maryland
BANCROFT COMMERCIAL, INC. doing business as Bancroft Press,
SANDRA GOROFF, et al.
CATHERINE C. BLAKE, District Judge.
Bancroft Commercial, Inc. ("Bancroft"), doing business as Bancroft Press, brings this suit against Sandra Goroff and Burton Peretsky (collectively, "the defendants"). Bancroft alleges that the defendants committed fraud by misrepresenting their qualifications as book publicists. Bancroft also alleges that the defendants breached two book publicity contracts. Before the court is the defendants' motion to dismiss, which Bancroft belatedly opposed with a three-sentence opposition, and Bancroft's motion to compel answers to interrogatories. The court finds oral argument unnecessary to resolve the issues. See Local R. 105.6 (D. Md. 2014). For the reasons stated below, the court will grant the motion to dismiss and deny as moot the motion to compel.
Bancroft is a Baltimore-based book publisher headed by Bruce Bortz, who is also acting as Bancroft's attorney in this action. (Compl. ¶ 2, ECF No. 1.) In 1996, Ms. Goroff, a publicist, performed publicity services for two of Bancroft's books. ( Id. ¶ 4.) Mr. Bortz was pleased with her work, but considered her fees too high for future projects. ( Id. ) In late 2013, however, Mr. Bortz reviewed Ms. Goroff's website as he considered hiring her Massachusetts-based firm, Sandra Goroff and Associates ("the Firm"), to publicize a new Bancroft book. ( Id. ¶ 5.) That book, a novel by David Andrews called My Father's Day Gift, was set to be published in March 2014. ( Id. ¶¶ 5, 64, 69.) Bancroft alleges Ms. Goroff's website stated that her clients "include" a number of prominent authors, though none of those authors were then her clients. ( Id. ¶ 10.) Further, some of these authors were never the Firm's clients, though Ms. Goroff did some work for them as a publicist for a previous employer. ( Id. ) Bancroft also alleges that by this time, Ms. Goroff's professional contacts "had dried up" as she took on fewer book publicity jobs, ( id. ¶ 24), and spent less of her professional activity on book publicity activities, ( id. ¶¶ 33-35).
On November 17, 2013, Mr. Bortz called Ms. Goroff to discuss the possibility that her Firm would publicize My Father's Day Gift. ( Id. ¶¶ 5, 36.) In that conversation, Ms. Goroff stated that (1) publicity activities related to her own photograph book, Solitary Soul, would not distract her; (2) she and Mr. Peretsky would work together, as they had on "many" previous book publicity projects, to publicize My Father's Day Gift; and (3) the involvement of Mr. Andrews's father in the book was "a real winner from a publicity standpoint...." ( Id. ¶ 36.) Bancroft asserts that these three representations were false. ( Id. ¶ 37.)
After this conversation, Bancroft and the Firm entered into an agreement ("the First Agreement") under which Bancroft would pay $9, 000 for the Firm's "best efforts to secure appropriate print, broadcast, online and social media to promote" My Father's Day Gift from December 2, 2013, through Father's Day, June 15, 2014. ( Id. ¶ 45; Compl. Ex. 6.) Ms. Goroff executed the First Agreement on November 22, 2013, and Mr. Bortz executed it on December 2, 2013. ( Id. ) Though the Firm charged several thousand dollars more than Bancroft typically paid for publicity services, Mr. Bortz believed he was paying for "above average clout with the national media." ( Id. ¶ 48.)
Bancroft was not happy with the results. Bancroft sent the defendants marketing materials that it says they did not use. ( Id. ¶¶ 50-51; Compl. Ex. 7.) The defendants did not call Bancroft to report on their progress, and most of their emails to Bancroft concerned payment of their fees rather than publicity. ( Id. ¶¶ 52-53.) On Mr. Bortz's request, however, Bancroft provided a list of media outlets the Firm had contacted. ( Id. ¶ 54; Compl. Ex. 9.) The only publicity the Firm garnered was an appearance by Mr. Andrews on a Boston radio show that the defendants "misrepresented as having the equivalence of national reach...." ( Id. ¶ 57). Bancroft secured a commitment from USAToday.com to run an op-ed piece, but the defendants "apparently antagonized the editor to such a degree that he dropped the commitment." ( Id. ¶ 58.) Bancroft says it "held back attempting to get any publicity for the book in hopes that" the defendants would succeed in doing so, and that Mr. Andrews "refrained" from using publicity services "easily available to him" out of "deference" to the defendants. ( Id. ¶ 63.)
Nevertheless, Bancroft "reluctantly decided" to enter into another book publicity contract with the Firm, this time for a "political thriller called Aftershock" set to be published in July 2014. ( Id. ¶ 65.) Under this agreement ("the Second Agreement"), Bancroft would pay $7, 500 for the Firm's "best efforts to secure appropriate print, broadcast, online and social media to promote" Aftershock and its author from March 5, 2014, to July 5, 2014. ( Id. ¶ 66; Compl. Ex. 15.) Though the Second Agreement identified the book's author as JL Herschenroeder, the author's name was actually Joe Lane. ( Id. ¶ 65.) In any event, the Firm agreed to "work cooperatively" with Bancroft and the author and to "provide regular updates." ( Id. ¶ 67; Compl. Ex. 15.) Bancroft alleges that the defendants "failed to file regular and detailed reports" and failed to use a detailed marketing plan Bancroft had prepared. ( Id. ¶ 68; Compl. Ex. 17.) As a result, Bancroft says that the defendants obtained "merely two pieces of minor publicity": a piece in a "local giveaway newspaper in Connecticut, the author's home state, " and a "much-delayed radio gig on the same show" they had arranged for Mr. Andrews. ( Id. ¶ 69.) In addition, Bancroft asserts that Ms. Goroff publicized her own photography book, including through the use of social media, in 2013 and "well into the summer of 2014." ( Id. ¶¶ 18-23.)
On September 2, 2014, Bancroft filed a complaint in this court alleging that the defendants breached the two agreements, and committed fraud by misrepresenting "their recent history, both orally and on their website." ( Id. ¶¶ 70-71.) Bancroft's claimed damages include $14, 900 it paid under the two agreements,  consequential damages over of $100, 000 in lost sales for books it says went unsold because of alleged publicity failures, and punitive damages. On September 24, 2014, the defendants, acting pro se, filed a motion to dismiss. On November 23, 2014, Bancroft filed a belated, three-sentence opposition, to which the defendants replied. On December 30, 2014, Bancroft filed a motion to compel answers to interrogatories.
Motion to Dismiss Standard
When ruling on a motion under Federal Rule of Civil Procedure 12(b)(6), the court must "accept the well-pled allegations of the complaint as true, " and "construe the facts and reasonable inferences derived therefrom in the light most favorable to the plaintiff." Ibarra v. United States, 120 F.3d 472, 474 (4th Cir. 1997). "Even though the requirements for pleading a proper complaint are substantially aimed at assuring that the defendant be given adequate notice of the nature of a claim being made against him, they also provide criteria for defining issues for trial and for early disposition of inappropriate complaints." Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). "The mere recital of elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6)." Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). To survive a motion to dismiss, the factual allegations of a complaint "must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). "To satisfy this standard, a plaintiff need not forecast' evidence sufficient to prove the elements of the claim. However, the complaint must allege sufficient facts to establish those elements." Walters, 684 F.3d at 439 (citation omitted). "Thus, while a plaintiff does not need to demonstrate in a complaint that the right to relief is probable, ' the complaint must advance the plaintiff's claim across the line from conceivable to plausible.'" Id. (quoting Twombly, 550 U.S. at 570).
In considering a Rule 12(b)(6) motion, the court need not always limit its review to the pleadings. It can also take judicial notice of public records, including statutes, and can "consider documents incorporated into the complaint by reference, as well as those attached to the motion to dismiss, so long as they are integral to the complaint and authentic." United States ex rel. Oberg v. Pennsylvania Higher ...