CHARLESTON – A federal magistrate judge issued proposed findings and recommendations in a lawsuit that named both the Democratic National Party and Republican National Party and Facebook as defendants.
U.S. Magistrate Judge Dwane L. Tinsley recommended the dismissal of the 2017 lawsuit, claiming it failed to state a claim. He called the lawsuit frivolous, according to the Jan. 14 recommendations.
Tinsley wrote that Sherry A. Tulk's allegations were, at best, general, conclusory and speculative.
"Moreover, they are fanciful, fantastic, and delusional claims that merit dismissal," Tinsley wrote. "This is one of three civil actions filed by Tulk in this court alleging infringement of nothing more than general marketing and business concepts that do not warrant copyright protection. Each case has grown more irrational and implausible and this litigation represents an abuse of the judicial process and valuable court resources."
Tinsley said the complaint and an amended complaint repeatedly assert that the defendants are using her marketing strategies and processes and she claims infringement by the defendants for the use of similar words, phrases or slogans that are not subject to copyright protection under the circumstances.
"Nowhere in the amended complaint does Tulk identify any specific original written work that has been copied by the defendants," Tinsley wrote. "Rather, she merely asserts that the defendants are using similar concepts, which are not protectable. The complaint documents are deficient because they do not allege any specific original work which was allegedly infringed or specific infringing acts by any particular defendants and, thus they fail to satisfy the Iqbal plausibility standard."
The lawsuit was filed in 2017 against at least 280 different organizations and individuals, including Move Forward West Virginia, WV History Museum, former Gov. Earl Ray Tomblin, Gov. Jim Justice, Attorney General Patrick Morrisey, both the Republican and Democratic National Parties, Facebook, Amazon, Comcast, the FBI, AARP and several cities in West Virginia and other cities across the nation.
Tulk worked in city planning, community development and economic development and alleged that all of the defendants engaged in intellectual property theft and fraud.
"This brief story is a summary of that intellectual property (IP) theft and fraud which began in Ohio, and continues to the present, here in West Virginia ... It was not long before I began reading of my business concepts in the local newspapers, after pursing assistance with my startups from various local nonprofits," Tulk wrote.
Tulk claimed this expanded to include other concepts developed prior to moving to West Virginia, and to aspects of her character, life commitments, values, keywords and phrases – which she considers her identity.
"Finally, I initiated my first legal action for infringement (in) July 2015 and am pursuing additional legal recourse for infringement and many cease and desists," Tulk wrote. "This has become an apparent ongoing, intentioned fraud of intellectual property and identity theft, ensuing life and employment hindrance, and it appears with intent to undermine pursuit of protection and legal recourse, by ensuring a survival focus."
U.S. District Court for the Southern District of West Virginia case number 2:17-cv-00685