Iditasport Alaska v. Merchant et al
ORDER granting in part and denying in part 44 Motion to Dismiss. Plaintiffs' second amended complaint, should they decide to file one, shall be filed before 10/4/18. Signed by Judge H. Russel Holland on 9/13/18. (JLH, COURT STAFF)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
KATHARINA MERCHANT, et al.,
Motion to Dismiss
Counterclaim defendants move to dismiss the counterclaims asserted against them.1
This motion is opposed.2 Oral argument was not requested and is not deemed necessary.
Plaintiff is Iditasport Alaska. Defendants are Katharina Merchant, Kyle Durand,
Kevin Robbins, Alaska Ultra Sport LLC, and Winter Ultra LLC.
Docket No. 44.
Docket No. 48.
Plaintiff is owned and operated by Billy and Erica Koitzsch.3 Plaintiff alleges that it
operates the Iditasport ultramarathon.4 Plaintiff alleges that the Iditasport ultramarathon was
first held in 1987, but that “[o]rganizational difficulties caused the event to lapse in 2001[.]”5
Plaintiff alleges that the Koitzschs “revived” the event in 2014 and “branded the event under
its original name: Iditasport.”6
Plaintiff alleges that the Koitzschs “acquired a federal trademark for” the
“IDITASPORT design mark” in 2014, U.S. Registration No. 4574317.7 This “mark consists
of (blue) mountain range with a sun, the (red text) ‘IDITA’ on the next line (red text)
‘SPORT’ on the next line, wide blue line underneath and in smaller (blue text), ‘Human
Powered Ultra-Marathon[.]’”8 Plaintiff further alleges that in 2018, it “filed a trademark
application for the [word] mark IDITASPORT, U.S. Trademark Application Ser. No
877860698. . . .”9 Iditasport Alaska alleges that the IDITASPORT word mark and the
IDITASPORT design mark “have gained fame and distinction within the State of Alaska,
Complaint at 4, ¶ 19, Docket No. 1.
Id. at 4, ¶ 16.
Id. at 4, ¶ 17.
Id. at ¶ 4, ¶ 20.
Exhibit A at 2, Complaint, Docket No. 1.
Complaint at 5, ¶ 21, Docket No. 1.
within the United States, and worldwide by virtue of their longstanding use in identifying a
premier winter endurance event.”10
Plaintiff alleges that defendants operate “the Iditarod Trail Invitational, an
ultramarathon intended to replace the Iditasport event.”11 Plaintiff alleges that defendants
have since 2015, “attempted to associate their event with Iditasport, without Iditasport’s
license or permission.”12 Plaintiff alleges that defendant Ultra Sport filed a trademark
application in 2016 for the word mark, IDITASPORT, U.S. Trademark Application Ser. No.
86961602, but that this application “was rejected due to a likelihood of confusion with the
IDITASPORT design mark.”13 Plaintiff also alleges that defendants have acquired three
domain names that include the word “iditasport”.14
Plaintiff asserts federal and state trademark and unfair competition claims against
defendants based on allegations that they are infringing plaintiff’s IDITASPORT design
mark and its IDITASPORT word mark. Plaintiff also asserts a cyberpiracy claim based on
allegations that defendants have inappropriately acquired the domain names which include
the term “iditasport.”
Id. at 5, ¶ 22.
Id. at 5, ¶ 23.
Id. at 5, ¶ 25.
Id. at 5, ¶ 26.
Id. at 5, ¶ 27.
In response, Alaska Ultra Sport LLC and Winter Ultra LLC ( referred to hereafter as
the Ultra plaintiffs) assert counterclaims against Iditasport Alaska and Billy and Erica
Koitzsch (referred to hereafter as the Iditasport defendants). The Ultra plaintiffs allege that
Alaska Ultra Sport has been operating the Iditarod Trail Invitational since 2002.15 The Ultra
plaintiffs allege that Alaska Ultra Sport assumed operation of the original Iditasport event
in that year.16 The Ultra plaintiffs allege that “Alaska Ultra Sport [has] continually used the
mark Iditasport in connection with athletic and sports event services from 2007 through
2018[,]” thereby making it “the first of the parties to this case to use the mark Iditasport in
connection with athletic and sports event services.”17 The Ultra plaintiffs allege that they
“own valid and subsisting common law rights to the Iditasport mark” based on their
“widespread, continuous, and exclusive use of the Iditasport mark to identify their
event. . . .”18
The Ultra plaintiffs allege that in 2014, the Koitzschs “launched a small winter athletic
event designed to compete with the Iditarod Trail Invitational and chose the name Iditasport
without license or permission from Alaska Ultra Sport.”19 The Ultra plaintiffs allege that the
Counterclaim-Plaintiffs’ First Amended Counterclaim at 3, ¶ 13, Docket No. 41.
Id. at 4, ¶ 16.
Id. at 4, ¶ 17.
Id. at 4, ¶ 18.
Id. at 5, ¶ 21.
Iditasport defendants falsely claimed to have been using the Iditasport mark since January
1, 1990, when Alaska Iditasport applied for the IDITASPORT design mark in 2014.20 The
Ultra plaintiffs allege that since 2014, the Iditasport defendants “have systematically
attempted to divert customers from the Iditarod Trail Invitational” by “promulgat[ing] . . .
false and misleading statements and inflammatory remarks regarding the Iditarod Trail
Invitational and its organizers and by actively soliciting current and prospective Iditarod Trail
Invitational customers to withdraw from the Iditarod Trail Invitational.”21
The Ultra plaintiffs also allege that Alaska Ultra Sport owns the copyright to a Release
and Waiver of Liability document that was created in 2011.22 They allege that on May 29,
2018, Alaska Ultra Sport submitted an application to register its copyright in this work.23
The Ultra plaintiffs allege that the Iditasport defendants copied the Release and Waiver of
Liability document and have used the work “as part of their solicitations of customers for
their athletic events by distributing” the work “electronically on their website.”24
The Ultra plaintiffs assert five counterclaims. In their first counterclaim, the Ultra
plaintiffs assert a common law trademark infringement claim. In their second counterclaim,
Id. at 5, ¶¶ 23-24.
Id. at 6, ¶ 30.
Id. at 7, ¶¶ 34-35.
Id. at 7-8, ¶ 36.
Id. at 8, ¶ 37.
the Ultra plaintiffs seek to cancel the registration for the Iditasport design mark (the ‘317
In their third counterclaim, the Ultra plaintiffs assert a claim for copyright
In their fourth counterclaim, the Ultra plaintiffs assert an intentional
interference with a prospective economic advantage claim. In their fifth counterclaim, the
Ultra plaintiffs assert a civil conspiracy claim.
Pursuant to Rules 8, 9(b), and 12(b)(6), Federal Rules of Civil Procedure, the
Iditasport defendants now move to dismiss all five counterclaims asserted against them.
“Rule 8 requires a complaint to include ‘a short and plain statement of the claim
showing that the pleader is entitled to relief.’” Eclectic Properties East, LLC v. Marcus &
Millichap Co., 751 F.3d 990, 995 (9th Cir. 2014) (quoting Fed. R. Civ. P. 8(a)(2)). “To meet
this requirement, the Supreme Court has held that an ‘entitlement to relief’ requires ‘more
than labels and conclusions. . . . Factual allegations must be enough to raise a right to relief
above a speculative level.’” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
“Under Rule 9(b), a plaintiff ‘must state with particularity the circumstances
constituting fraud.’” United States v. United Healthcare Ins. Co., 848 F.3d 1161, 1180 (9th
Cir. 2016) (quoting Fed. R. Civ. P. 9(b)). “This means the plaintiff must allege the who,
what, when, where, and how of the misconduct charged, including what is false or
misleading about a statement, and why it is false[.]” Id. (internal citations omitted).
“Knowledge, however, may be pled generally.” Id.
“‘To survive a [Rule 12(b)(6)] motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim is facially plausible ‘when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.’” Id. (quoting Iqbal, 556 U.S. at 678). “‘Where a complaint pleads facts
that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.’” Id. (quoting Iqbal, 556 U.S. at 678).
“[T]he complaint must provide ‘more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.’” In re Rigel Pharmaceuticals, Inc.
Securities Litig., 697 F.3d 869, 875 (9th Cir. 2012) (quoting Twombly, 550 U.S. at 555). “In
evaluating a Rule 12(b)(6) motion, the court accepts the complaint’s well-pleaded factual
allegations as true and draws all reasonable inferences in the light most favorable to the
plaintiff.” Adams v. U.S. Forest Srvc., 671 F.3d 1138, 1142-43 (9th Cir. 2012).
“When ruling on a Rule 12(b)(6) motion, if ‘matters outside the pleadings are
presented to and not excluded by the court, the motion must be treated as one for summary
judgment under Rule 56.” Hicks v. PGA Tour, Inc., 897 F.3d 1109, 1117 (9th Cir. 2018)
(quoting Fed. R. Civ. P. 12(d)). The Iditasport defendants have submitted matters outside
the pleadings; but the court has not considered these matters and thus the instant motion does
not need to be converted to a motion for summary judgment.
first counterclaim – common law trademark infringement
To prevail on their common law trademark infringement claim, the Ultra plaintiffs
must prove: “(1) ownership interest in a mark, and (2) the likelihood of the infringing mark
being confused with the [Iditasport defendants’] mark.” Sebastian Brown Productions, LLC
v. Muzooka, Inc., 143 F. Supp. 3d 1026, 1039 (N.D. Cal. 2015). The Iditasport defendants
argue that the Ultra plaintiffs have failed to state a plausible common law trademark
infringement claim because they have not adequately alleged an ownership interest in a mark
nor have they adequately alleged priority in their mark.
The Ultra plaintiffs argue that they have adequately alleged ownership interest in the
Iditasport word mark, and they cite to paragraph 17 of the counterclaim and Exhibit B to the
counterclaim in support. In paragraph 17, the Ultra plaintiffs allege that “Alaska Ultra Sport
continually used the mark Iditasport in connection with athletic and sport event
services. . . .”25 This reference to the “Iditasport” mark is not sufficient. The Ultra plaintiffs
do not state whether this mark consists of words only or whether this mark includes design
elements similar to the ‘317 mark. The Ultra plaintiffs’ reliance on Exhibit B to their
counterclaim is also unavailing. Exhibit B is a screenshot of the Iditarod Trail Invitational
website with an article on the History of Winter Biking and Winter Races in Alaska that
Counterclaim-Plaintiffs’ First Amended Counterclaim at 4, ¶ 17, Docket No. 41.
refers to an “Iditasport race” in the past tense.26 Exhibit B does not indicate what mark the
Ultra plaintiffs are claiming an interest in.
As for the Ultra plaintiffs’ allegations of priority of use, “[i]t is axiomatic in trademark
law that the standard test of ownership is priority of use.” Sengoku Works Ltd. v. RMC Int’l,
Ltd., 96 F.3d 1217, 1219 (9th Cir. 1996). “To acquire ownership of a trademark it is not
enough to have invented the mark first or even to have registered it first; the party claiming
ownership must have been the first to actually use the mark in the sale of goods or services.”
Id. The Ultra plaintiffs allege that Alaska Ultra Sport was the first of the parties to the case
to use the Iditasport mark and that it has used the mark from 2007 until 2018.27 The Ultra
plaintiffs allege that Alaska Ultra Sport used the Iditasport mark “in connection with athletic
events and sports event services.”28 However, the only specific use of the mark that is
alleged is use on the Iditarod Trail Invitational website,29 which, as discussed above, does not
indicate what mark the Ultra plaintiffs are claiming an ownership interest in.
The Ultra plaintiffs have failed to state a plausible claim for common law trademark
infringement because they have failed to adequately allege what mark they are claiming an
Exhibit B, Counterclaim-Plaintiffs’ First Amended Counterclaim, Docket No. 41.
Counterclaim-Plaintiffs’ First Amended Counterclaim at 4, ¶ 17, Docket No. 41.
Id. at 4, ¶ 16.
interest in. The Ultra plaintiffs’ first counterclaim is dismissed. However, the Ultra
plaintiffs are given leave to amend as to this counterclaim.
second counterclaim – cancellation of the ‘317 mark
“A party who believes he has been harmed by a trademark’s registration may seek the
cancellation of that trademark’s registration on certain specified grounds, including that the
trademark was obtained by the commission of fraud on the United States Patent and Trade
Office (USPTO).” Hokto Kinoko Co. v. Concord Farms, Inc., 738 F.3d 1085, 1097 (9th Cir.
2013) (citing 15 U.S.C. § 1064)). The Iditasport defendants first argue that the Ultra
plaintiffs lack standing to bring a cancellation claim. The Iditasport defendants appear to
argue that the Ultra plaintiffs lack both Article III standing and prudential standing. But,
because the standing issue can be resolved on prudential standing grounds, the court need not
consider whether the Ultra plaintiffs lack Article III standing. Hong Kong Supermarket v.
Kizer, 830 F.2d 1078, 1081 (9th Cir. 1987).
“[T]he cancellation petitioner [must] plead and prove facts showing a ‘real interest’
in the proceeding in order to establish standing.” Star-Kist Foods, Inc. v. P.J. Rhodes & Co.,
735 F.2d 346, 349 (9th Cir. 1984) (quoting Int’l Order of Job’s Daughters v. Lindeburg &
Co., 727 F.2d 1087, 1091 (Fed. Cir. 1984)). “The petitioner . . . must show a real and
rational basis for his belief that he would be damaged by the registration sought to be
cancelled, stemming from an actual commercial or pecuniary interest in his own mark.” Id.
The Ultra plaintiffs argue that they have standing to bring a cancellation claim
because, as argued above, they contend that they have adequately alleged an ownership
interest in the “Iditasport” mark. But, as discussed above, the Ultra plaintiffs have not
adequately alleged what mark they are claiming an ownership interest in. Because it is not
clear what competing mark the Ultra plaintiffs are claiming an ownership interest in, it is not
at all clear that they have an actual commercial or pecuniary interest in their own mark that
might be damaged by the ‘317 mark. Thus, the Ultra plaintiffs have failed to state a plausible
cancellation claim.30 The second counterclaim is dismissed, but the Ultra plaintiffs are given
leave to amend this counterclaim.
third counterclaim – copyright infringement
“To prove copyright infringement, a plaintiff must show: ‘(1) ownership of a valid
copyright and (2) copying of constituent elements of the work that are original.’” Folkens
v. Wyland Worldwide, LLC, 882 F.3d 768, 774 (9th Cir. 2018) (quoting Feist Publ’ns, Inc.
v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). The Iditasport defendants argue that the
Ultra plaintiffs have not plausibly alleged that they copied the protectable elements of the
Waiver and Release form. This argument is based on “the doctrines of merger and scènes
The court would note that, contrary to the Iditasport defendants’ contention, the
Ultra plaintiffs have adequately alleged the who, what, when, and where as to the fraudulent
statements made by the Koitzschs. They have alleged that the Koitzschs (the who);
fraudulently declared that no other person, firm, corporation, or association had the right to
use the mark in commerce (the what); in connection their trademark application of January
28, 2013 (the when/where/how).
à faire.” Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1082 (9th Cir. 2000). “Under the
merger doctrine, courts will not protect a copyrighted work from infringement if the idea
underlying the copyrighted work can be expressed in only one way, lest there be a monopoly
on the underlying idea.” Id. “Under the related doctrine of scènes à faire, courts will not
protect a copyrighted work from infringement if the expression embodied in the work
necessarily flows from a commonplace idea; like merger, the rationale is that there should
be no monopoly on the underlying unprotectable idea.” Id. “[W]hen similar features [of a
work] are as a practical matter indispensable, or at least standard, in the treatment of a given
idea, they are treated like ideas and are therefore not protected by copyright.” Apple
Computer Corp. v. Microsoft Corp., 35 F.3d 1435, 1444 (9th Cir. 1994) (citations omitted).
The Iditasport defendants argue that any expression in a release and waiver form flows
from commonplace principles of contract and liability law and they request that the court take
judicial notice of a list of elements of waiver and release forms that they contend are
generic.31 FRE 201 provides that “[t]he court may judicially notice a fact that is not subject
These elements, according to counterclaim defendants, are as follows:
• A statement regarding consideration;
• A statement that the agreement has been read, understood, and
is freely entered into;
• A description of the dangers associated with an event;
• A statement acknowledging the dangers associated with the
• Assumption of the risk of injury;
• A declaration that the event organizers will be held harmless
to reasonable dispute because it (1) is generally known within the trial court’s territorial
jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy
cannot reasonably be questioned.” Courts have taken judicial notice of generic elements of
creative works. See, e.g., Zella v. E.W. Scripps Co., 529 F. Supp. 2d 1124, 1129 (C.D. Cal.
2007) (taking judicial notice of “elements of a television show” because they are “generally
known and can be verified simply by watching television for any length of time”).
The Iditasport defendants then argue that the Waiver and Release form contains no
original elements that distinguish it from a generic release form. They argue that any
similarity between the Ultra plaintiffs’ Waiver and Release form and the forms of other
winter event organizers is inevitable and thus there are no original elements to be protected.
But even if there were a “thin” level of protection, the Iditasport defendants argue that the
Ultra plaintiffs’ copyright infringement claim is still not plausible because their release form
is not virtually identical to the Ultra plaintiffs’ form. See Ets-Hokin, 323 F.3d at 766 (“When
by the participant and the participant’s heirs, agents, and
• An acknowledgment of review of event rules;
• A statement regarding physical capacity to participate;
• An acknowledgment that event rules are subject to change;
• A statement regarding modification of the agreement;
• A statement regarding construction of the agreement;
• Permission to use the image or likeness of the participant.
Counter-Defendants’ Motion to Dismiss Counterclaim Plaintiffs’ First Amended Counterclaim at 16, Docket No. 44.
we apply the limiting doctrines, subtracting the unoriginal elements, Ets–Hokin is left with
only a ‘thin’ copyright, which protects against only virtually identical copying”).
The court declines to take judicial notice of what the Iditasport defendants contend
are the generic elements of a waiver and release form. This is not something that is generally
known or that can be easily verified. As a result, the Iditasport defendants’ argument that the
copyright infringement counterclaim is not plausible fails. The application of the doctrines
of merger and scènes à faire requires factual inquiries that are not appropriately considered
when deciding a Rule 12(b)(6) motion.
But even if the Ultra plaintiffs’ copyright infringement claim is plausible, which it is,
the Iditasport defendants argue that the Ultra plaintiffs’ request for attorneys’ fees as relief
for this counterclaim should be dismissed. 17 U.S.C. § 412 prohibits attorneys’ fees for “any
infringement of copyright commenced after first publication of the work and before the
effective date of its registration, unless such registration is made within three months after
the first publication of the work.” The Ultra plaintiffs concede that they cannot seek
attorneys’ fees and costs in connection with acts of infringement that predate the submission
of their copyright registration application, which was May 29, 2018.32 However, they argue
that they should still be able to seek attorneys’ fees and costs for any infringement that
occurred after May 29, 2018.
Counterclaim-Plaintiffs’ Response to Counterclaim-Defendants’ Motion to Dismiss
First Amended Counterclaim at 12, Docket No. 48.
The weight of authority does not support the Ultra plaintiffs’ argument.
“‘[I]nfringement commences for the purposes of § 412 when the first act in a series of acts
constituting continuing infringement occurs.’” City of Carlsbad v. Shah, 850 F. Supp. 2d
1087, 1102 (S.D. Cal. 2012) (quoting Johnson v. Jones, 149 F.3d 494, 506 (6th Cir. 1998)).
The Ultra plaintiffs allege that the Iditasport defendants have infringed the Waiver and
Release form for the last three years by putting it on their website.33 This is an allegation of
continuing infringement, which means that for purposes of Section 412, the infringement
commenced in 2015, which was before the Ultra plaintiffs registered their copyright. The
Ultra plaintiffs’ request for attorneys’ fees as relief for their copyright infringement
counterclaim is dismissed.
fourth counterclaim – intentional interference with prospective economic advantage
In order to prevail on an intentional interference with prospective economic advantage
claim, a plaintiff must prove the following elements:
(1) a prospective business relationship existed; (2) the defendant
knew of the prospective relationship and intended to prevent its
fruition; (3) the prospective business relationship did not
culminate in pecuniary benefit to the plaintiff; (4) the defendant’s conduct interfered with the prospective relationship; (5)
the interference caused the plaintiff’s damages; and (6) the
defendant’s conduct was not privileged or justified.
Counterclaim-Plaintiffs’ First Amended Counterclaim at 10, ¶ 54, Docket No. 41.
Sisters of Providence in Wash. v. A.A. Pain Clinic, Inc., 81 P.3d 989, 997 (Alaska 2003).
“Under this theory, a person who is involved in an economic relationship with another, or
who is pursuing reasonable and legitimate prospects of entering such a relationship, is
protected from a third person’s wrongful conduct which is intended to disrupt the relationship.” Ellis v. City of Valdez, 686 P.2d 700, 707 (Alaska 1984). “The cause of action
protects both continuing business or customary relationships not amounting to formal
contracts, and prospective business or contractual relations which, absent interference, would
culminate in pecuniary benefit to the plaintiff.” Id. However, “[a] prior business relationship
and an existing offer are not enough to establish a ‘prospective business relationship’. . . .”
Skagway Jewelry Co., LLC v. Westmark Hotels, Inc., Case No. 1:16-cv-00005 RRB, 2016
WL 3746423, at *2 (D. Alaska July 8, 2016).
The Ultra plaintiffs allege that the Iditasport defendants induced vendors to sever their
business relationships with the Ultra plaintiffs and diverted prospective customers to their
event.34 The Iditasport defendants argue that these allegations are insufficient to suggest that
the Ultra plaintiffs had a reasonable and legitimate expectancy of entering into business
relationships with these unnamed vendors and customers in the future. The Iditasport
defendants also argue that the Ultra plaintiffs have failed to allege that the Iditasport
defendants acted with any intent other than to further their own economic interests. The
Iditasport defendants contend that an interference claim based on an allegation that the
Id. at 12, ¶¶ 61-62.
defendant acted in “a commercially reasonable manner in his own best economic interest”
is not plausible. Id. at *3.
The Ultra plaintiffs have alleged a plausible intentional interference with prospective
economic advantage claim. They have alleged that business relationships existed with
Iditarod Trail Invitational customers, that the Iditasport defendants knew of these
relationships, that the Iditasport defendants interfered with these relationships, and that Ultra
Alaska suffered a decline in the number of participants in its event and suffered breaches of
contract by vendors and customers. In short, the Ultra plaintiffs have alleged that they had
business relationships that would have continued to result in pecuniary benefit for them had
it not been for the Iditasport defendants’ interference.
fifth counterclaim - civil conspiracy
“[T]he necessary elements of civil conspiracy include ‘unlawful’ acts by ‘two or
more persons[.]’” Davis v. King Craig Trust, Case No. S–15962, 2017 WL 2209879, at *3
(Alaska 2017) (quoting Morasch v. Hood, 222 P.3d 1125, 1131-32 (Or. Ct. App. 2009)). The
Ultra plaintiffs allege that the Koitzschs and Iditasport Alaska conspired together to divert
their customers and to interfere with their relationships with their customers.35 The Ultra
plaintiffs also allege that Iditasport Alaska conspired with “members of the local community
in and around Anchorage, Alaska. . . .”36
Id. at 12-13, ¶¶ 65-66.
Id. at 13, ¶ 67.
The Iditasport defendants argue that the Koitzschs and Iditasport Alaska cannot
conspire with each other because the Koitzschs are alleged to be Iditasport Alaska’s agents.
Specifically, the Ultra plaintiffs allege that the Koitzschs “serve as directors and officers of
Iditasport Alaska and direct the corporation’s day-to-day operations.”37 If the Koitzschs are
Iditasport Alaska’s agents, then the Iditasport defendants argue that the civil conspiracy claim
is not plausible because “‘an employee acting on behalf of the employer cannot be acting in
concert with the employer, as there is in law only a single actor.’” Amer. General Life Ins.
Co. v. Khachatourians, Case No. CV 08–06408 DDP (RZx), 2012 WL 5267683, at *5 (C.D.
Cal. Oct. 24, 2012) (quoting Fiol v. Doellstedt, 58 Cal. Rptr. 2d 308, 313 (Calif. Ct. App.
However, as the Ultra plaintiffs point out, they have alleged that the Koitzschs’
tortious activities began in 2014, but that they did not form Iditasport Alaska until 2017.38
Thus, it is plausible that the Koitzschs were conspiring with each other prior to Iditasport
Alaska being formed. See, e.g., State v. Stroud, 557 S. E. 2d 544, 550 (N.C. Ct. App. 2001)
(recognizing that a husband and wife can conspire with each other because the common law
rule that the wife’s identity has merged with her husband’s has been abrogated in many
jurisdictions). As for the Ultra plaintiffs’ allegations that Iditasport Alaska conspired with
members of the community, it is plausible that “discovery will reveal evidence’” of other co-
Id. at 6, ¶ 28.
Id. at 6, ¶¶ 27, 29.
conspirators. Name.Space, Inc. v. Internet Corp. for Assigned Names and Numbers, 795
F.3d 1124, 1129 (9th Cir. 2015) (quoting Twombly, 550 U.S. at 556). The Ultra plaintiffs’
civil conspiracy counterclaim is plausible.
Finally, the Iditasport defendants argue that the Koitzschs have been improperly
joined as counterclaim defendants because they were not plaintiffs in the original action. The
Iditasport defendants suggest that the Ultra plaintiffs were required to obtain leave of the
court to add the Koitzschs as parties.
This argument fails. “Rules 19 and 20 govern the addition of a person as a party to
a counterclaim or crossclaim.” Fed. R. Civ. P. 13(h). “While Rule 13(h) establishes that the
permissive addition of a person as a party to either a counterclaim or cross claim is governed
by Rule 20, neither Rule 13(h) nor Rule 20 require leave of court.” Lehrer v. Connelly, Case
No. 2:11–cv–00735–LDG (CWH), 2012 WL 1019164, at *2 (D. Nev. March 23, 2012).
Rule 20(a) governs permissive joinder, and identifies two
prerequisites for the joinder of defendants: (1) a right to relief
must be asserted against the defendants jointly, severally or in
the alternative with respect to or arising out of the same transaction, occurrence or series of transactions or occurrences; and (2)
some question of law or fact common to all defendants will
Armstead v. City of Los Angeles, 66 F. Supp. 3d 1254, 1262 (C.D. Cal. 2014). The
counterclaims being asserted against the Koitzschs arise out of the same transactions as the
counterclaims being asserted against Iditasport Alaska and there are common questions of
law or fact as to all counterclaim defendants.
The Iditasport defendants’ motion to dismiss39 is granted in part and denied in part.
The motion is granted as to the first and second counterclaims. These counterclaims are
dismissed without prejudice. The Ultra plaintiffs are given leave to amend as to these
counterclaims. The motion to dismiss is also granted as to the Ultra plaintiffs’ request for
attorneys’ fees as relief for their copyright infringement counterclaim. This request is
dismissed with prejudice. The motion is otherwise denied. The Ultra plaintiffs’ second
amended counterclaim, should they decide to file one, shall be filed on or before October 4,
DATED at Anchorage, Alaska, this 13th day of September, 2018.
/s/ H. Russel Holland
United States District Judge
Docket No. 44.
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