Brave New Films 501 (C)(4) v. Weiner et al

Filing 24

MOTION to Dismiss filed by Michael Weiner. Motion Hearing set for 3/13/2009 09:00 AM in Courtroom 10, 19th Floor, San Francisco. (Attachments: # 1 Exhibit A, # 2 Proposed Order)(Reilly, Christine) (Filed on 1/11/2009)

Brave New Films 501 (C)(4) v. Weiner et al Doc. 24 1 Benjamin Aaron Shapiro (SBN 254456) 12330 Magnolia Boulevard, No. 114 2 Valley Village, CA 91607 Telephone: (818) 620-0137 3 Attorney for Defendants 4 MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC. 5 6 7 8 9 10 11 12 BRAVE NEW FILMS 501(c)(4), 13 14 v. Plaintiff, Case No. CV 08-4703 SI DEFENDANT MICHAEL WEINER AKA MICHAEL SAVAGE'S NOTICE OF MOTION AND MOTION TO DISMISS Date: March 13, 2009 Time: 9:00 a.m. Location: Courtroom [filed concurrently with Proposed Order] Honorable Susan Illston UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 15 MICHAEL WEINER aka MICHAEL SAVAGE, and ORIGINAL TALK RADIO NETWORK, INC., 16 17 18 19 20 21 22 23 24 25 26 27 28 LA1835454.1 211275-10004 Defendants. SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI Dockets.Justia.com 1 TO ALL PARTIES AND THEIR COUNSEL OF RECORD: 2 3 PLEASE TAKE NOTICE that, on March 13, 2009, at 9:00 a.m., in 4 Courtroom 10 of the above-captioned court located at 450 Golden Gate Avenue, San 5 Francisco, California 94102, Defendant Michael Weiner aka Michael Savage 6 ("Savage") will and hereby does move this Court for an order dismissing this action 7 against Savage. 8 9 This Motion is made pursuant to Federal Rule of Civil Procedure 12(b)(6), on 10 the basis that the complaint fails to state a claim upon which relief can be granted 11 against Savage. 12 13 This Motion is based upon this Notice, the accompanying Memorandum of 14 Points and Authorities, all records on file with the Court, any reply, and any 15 additional argument or evidence which may be presented at or prior to the hearing 16 on this Motion. 17 18 Dated: January 9, 2009 19 20 21 22 23 24 25 26 27 28 LA1835454.1 211275-10004 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI By /s/ Benjamin Aaron Shapiro Attorneys for Defendants Michael Weiner aka Michael Savage and Original Talk Radio Network, Inc. 2 1 2 3 MEMORANDUM OF POINTS AND AUTHORITIES Defendant MICHAEL WEINER aka MICHAEL SAVAGE ("Savage" or 4 "Defendant"), hereby moves, in the above-captioned action (this "Action"), 5 brought by plaintiff BRAVE NEW FILMS 501(C)(4) ("Plaintiff"), for dismissal of 6 this Action against Savage, pursuant to FRCP 12(b)(6), on the grounds that the 7 complaint in this Action (the "Complaint") fails to state a claim upon which relief 8 can be granted against Savage. Defendant requests that the motion be submitted on 9 the papers and without oral argument. 10 11 I. 12 13 14 15 16 A. The Legal Standard A court should grant a motion to dismiss under Rule 12(b)(6) when a THE COURT SHOULD DISMISS THIS ACTION AS TO SAVAGE BECAUSE IT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED 17 plaintiff's complaint does not provide grounds establishing that he is entitled to 18 relief. See Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955, 1964 (2007). 19 Allegations of material fact are taken as true and construed in the light most 20 favorable to the plaintiff. See Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th 21 Cir. 2001). Nonetheless, unwarranted inferences are insufficient to defeat a motion 22 to dismiss for failure to state a claim. See In Re VeriFone Sec. Litig., 11 F.3d 865, 23 868 (9th Cir. 1993). Similarly, "[f]actual allegations must be enough to raise a right 24 to relief above the speculative level." See Bell Atlantic Corp., 127 S.Ct. at 1965. 25 26 27 28 LA1835454.1 211275-10004 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 1 2 3 B. Plaintiff Has Not Alleged Any Acts or Omissions by Defendant that State a Claim for Relief Plaintiff has not alleged any relevant acts or omissions by Savage in the 4 Complaint, let alone facts that could state a claim for relief against Savage. At most, 5 Plaintiff alleges in Paragraph 5 of the Complaint that "On information and belief, 6 OTRN has acted as Savage's agent, and OTRN's actions as alleged herein were 7 done with Savage's knowledge and permission". However, such allegation has no 8 basis in fact, and there is simply no factual basis whatsoever alleged in the 9 Complaint to support such allegation. 10 To the contrary, a copy of the September 29, 2008 letter at issue in this Action 11 (the "9/29/08 Letter"), which was sent by Mr. Carter Glahn on behalf of defendant 12 THE ORIGINAL TALK RADIO NETWORK, INC. ("OTRN") to YouTube, with 13 regard to the video at issue in this Action (the "Video") is attached as Exhibit "C" to 14 the Complaint, without the full exhibit thereto, and expressly referenced in 15 Paragraph 23 of the Complaint, with a second, full copy of the exhibit to the 9/29/08 16 Letter attached as Exhibit "D" to the Complaint, and also referenced at Paragraph 23 17 thereof. For convenient reference, a full copy of the 9/29/08 Letter, with a full copy 18 of the exhibit attached, is attached as Exhibit "A" hereto. 19 The 9/29/08 Letter contains the only factual element of the Complaint directly 20 addressing the involvement of Savage as to the relevant issues posed by Plaintiff's 21 causes of action in this Action, and does not purport to represent Savage in any way. 22 To the contrary, the 9/29/08 Letter in fact states precisely the opposite: "Please also 23 be advised that OTRN does not, by this letter, disclaim, release or speak for the 24 separate rights of Michael Savage." As a result, the documentation attached by 25 Plaintiff to the Complaint, and referenced therein, demonstrates on its face that the 26 allegation in the Complaint to the effect that OTRN acted as the agent for Savage, or 27 28 LA1835454.1 211275-10004 2 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 that Savage was somehow a party to the issuance of the 9/29/08 Notice, is simply 2 baseless speculation on Plaintiff's part. 3 4 5 6 7 8 9 10 11 C. The Actual Purported Factual Allegations Asserted Against Savage in the Complaint Demonstrate That Plaintiff's Claims Against Savage Seek to Retaliate Against Savage For Exercising His Rights To Free Speech in a Manner Which Plaintiff Finds Objectionable, and For His Pursuit of a Separate Action Which Did Not Involve Plaintiff, and Have Nothing to Do With The Causes of Action Asserted in the Complaint. This Action seeks declaratory and injunctive relief and damages for the 12 issuance, by OTRN, through counsel, of the 9/29/08 Letter, demanding removal by 13 YouTube of 259 archived videos of content taken from "The Michael Savage Show" 14 (the "Show"), of which one of the total 259 videos (the "Video") had been posted 15 by Plaintiff, and happened to involve content taken from the same broadcast as was 16 involved in the separate and unrelated litigation between Savage and the Council on 17 American-Islamic Relations (the "CAIR Litigation"). With the exception of the 18 allegations in Paragraph 4 of the Complaint, applicable to the issue of venue, and the 19 unsubstantiated agency allegation addressed above, the factual allegations as to 20 Savage consist of: 21 22 23 24 25 26 27 28 LA1835454.1 211275-10004 (i) The allegations in Paragraph 4 of the Complaint to the effect that Savage is the holder of the copyright with respect to the radio broadcast which was the subject of the Video. While such allegation is relevant to the issue of whether Plaintiff had a defense to a demand by OTRN relating to the Video (an issue recognized by OTRN after the underlying broadcast for that 1 of 259 videos was identified, and which is addressed of record in OTRN's answer in this Action which Savage requests the Court to take judicial notice 3 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 of), it does not establish that Savage had anything to do with the issuance of the 9/29/08 Letter, or knowledge of its issuance, and certainly does not establish that OTRN sent the 9/29/08 Letter as an agent for Savage. (ii) The allegation in Paragraph 4 of the Complaint that Savage is the host of the Show (and similar references throughout the Complaint to Savage's involvement in the Show ≠ as opposed to involvement with respect to the 9/29/08 Letter). Again, while this alleges a connection between Savage and the Show, it does not create any inference of, or otherwise allege or establish, any connection between Savage and the 9/28/09 Notice, or any knowledge by Savage with respect thereto. (iii) The allegation in Paragraph 14 that "Savage went on an antiMuslim tirade" on the specific broadcast of the Show placed in issue by Plaintiff in this Action (the "Program at Issue"). However, whether or not such characterization of commentary by Savage during the Program at issue is proper has nothing to do with whether the 9/29/08 Letter by OTRN properly included the Video, or whether Plaintiff is or is not entitled to equitable relief or damages with respect to the issuance of the 9/29/08 Letter. (iv) The allegations in Paragraph 16 concerning Savage and the CAIR Litigation. However, the existence of that separate litigation does not create any inference of, or otherwise allege or establish, any connection between Savage and the 9/29/08 Letter or any knowledge by Savage with respect thereto. (v) The allegations in Paragraphs 18 and 19 discuss Savage, but in the context of describing the Video as being negative about Savage and the formation of an anti-Savage website by Plaintiff. While these allegations establish Plaintiff's dislike of Savage and show a desire by Plaintiff to punish Savage for his exercise of his free speech rights and to retaliate against LA1835454.1 211275-10004 4 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Savage for the CAIR Litigation, they again offer no facts showing any connection between Savage and the 9/29/08 Letter. (vi) Paragraphs 20 and 21 address various aspects of the CAIR Litigation, and again offer no facts even remotely tending to show any connection between Savage and the 9/29/08 Letter. (vii) Paragraph 22 alleges similarities between the Video and the "short clip" at issue in the CAIR Litigation, but again offers no facts tending to show any connection between Savage and the 9/29/08 Letter. (viii) In addition to referencing the 9/29/08 Letter attached as an exhibit, as previously addressed above, Paragraph 23 expressly alleges that the 9/29/08 Letter was delivered by "counsel for OTRN", thus further establishing that the sole relevant allegations in the Complaint bearing on whether there is any factual connection between Savage and the 9/29/08 Letter suggest the absence, rather than the presence, of any involvement on the part of Savage with respect to the 9/22/08 Letter. (ix) Paragraph 28 alleges that Savage holds the copyright with respect to the Program at Issue, and the existence of a controversy between Plaintiff and both Savage and OTRN. However, it alleges no communications from or to Savage with respect to such alleged controversy and again alleges/acknowledges that the 9/29/08 Letter was OTRN's, with no allegation or facts suggesting any involvement by Savage in the issuance of the 9/29/08 Letter. (x) Paragraph 32 also alleges/acknowledges that the 9/29/08 Letter was OTRN's and that the contents thereof constituted assertions by OTRN, without any allegations of any conduct by Savage. (xi) Paragraph 33 includes an allegation that "Savage had actual or constructive knowledge" with respect to the Video, and of Savage's copyright LA1835454.1 211275-10004 5 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 2 3 4 5 in the Program at Issue. It does not, however, contain any allegation that Savage had anything to do with the 9/29/08 Letter, but instead makes explicit reference to "the time OTRN issued" the 9/29/08 Letter. As such, in a very real sense, the Complaint is in many ways all about Savage 6 and Plaintiff's disdain for Plaintiff's view of statements made by Savage in 7 exercising Savage's free speech rights, and for actions taken by Savage in the CAIR 8 Action, none of which offer a scintilla of factual basis to establish, or even infer, any 9 involvement whatsoever by Savage in the issuance of the 9/29/08 Letter, which is 10 the actual action on which Plaintiff bases claims for equitable relief and damages in 11 this Action. That being the case, and from wholly speculative and conclusory 12 allegations that clearly are unsupported, and indeed contradicted, by the factual 13 allegations of the Complaint, it is abundantly clear, and Savage respectfully submits, 14 indisputable, that the Complaint fails to state any claims against Savage, regardless 15 of the merits, or lack of merits, of the claims asserted against OTRN for the 16 inclusion of the Video in the list of the 259 videos in the YouTube library of 17 archived content from the Show to which OTRN objected in the 9/29/08 Letter. 18 Accordingly, it is also evident from such allegations that Savage has been 19 named in the Complaint as a means of pursuing a vendetta by Plaintiff against 20 Savage to punish Savage, and to retaliate against him, for various statements and 21 actions unrelated to the Video, Plaintiff and/or the 9/29/08 Letter that Plaintiff takes 22 issue with, which clearly constitutes an improper basis for inclusion of Savage as a 23 defendant in this Action. 24 25 II. 26 28 LA1835454.1 211275-10004 CONCLUSION Accordingly, the Court should dismiss Savage from this Action pursuant to 27 FRCP 12(b)(6). 6 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI 1 Dated: January 9, 2009 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 LA1835454.1 211275-10004 By /s/ Benjamin Aaron Shapiro Attorneys for Defendants Michael Weiner aka Michael Savage and Original Talk Radio Network, Inc. 7 SAVAGE'S MOTION TO DISMISS Case No. CV 08-4703 SI