Kelly v. Maricopa County Sheriff's Office et al

Filing 51

ORDER: Defendants' Motion to Dismiss (Doc. 36 ) is DENIED. Signed by Judge G Murray Snow on 9/20/2016. (REK)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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David E. Kelly,

No. CV-15-02572-PHX-GMS
Plaintiff,

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ORDER

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v.

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Maricopa County Sheriff’s Office, et al.,

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Defendants.

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Pending before the Court is Defendants Maricopa County and Sheriff Joe Arpaio’s
Motion to Dismiss. (Doc. 36.) For the following reasons, the Court denies the motion.
BACKGROUND

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On October 27, 2001, Plaintiff David Kelly attended Game 1 of the 2001 Major

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League Baseball World Series in Phoenix, Arizona. (Am. Compl. ¶ 9.) Before the first

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pitch, Plaintiff photographically captured an image of the baseball teams and the Phoenix

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Fire Department raising the American flag. (Id.) Entitled, “Remember September 11th,

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2001,” Plaintiff registered the photograph with the United States Copyright Office (“the

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photograph”) on August 30, 2002. (Id.)

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On September 16, 2002, Plaintiff and his company, Big League Photos, entered

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into an agreement with Raymond Young (“Young”), allowing Young to act as a sales

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agent for the distribution of posters depicting the photograph (“the posters”), but Plaintiff

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retained the exclusive rights to the worldwide distribution of the posters. (Id. ¶ 12.)

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Plaintiff remained solely responsible for the printing and shipping of the posters and any

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sale of the posters required Plaintiff’s approval. (Id.) In September 2002, Young began

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violating the agreement by falsely portraying himself as the owner of Big League Photos,

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selling the posters without Plaintiff’s approval, and allowing other vendors to reproduce

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the posters. (Id. ¶ 14.) Upon Plaintiff’s discovery of Young’s actions, Plaintiff began

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contacting Defendants in 2002 and continuing through 2003, informing them of Young’s

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criminal conduct. (Id. ¶ 18.) In 2006, Plaintiff filed a lawsuit against Young in Maricopa

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County Superior Court and was awarded $1.125 million.

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In early 2012, Plaintiff believes Young donated 3,000 copies of the posters to
Defendants in exchange for immunity from any criminal liability.

(Id. ¶ 18.)

In

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December 2012, Plaintiff learned Defendants were selling the posters at Phoenix-based

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auctions. (Id. ¶ 19.) On January 25, 2013, Plaintiff spoke with Defendant Arpaio in

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downtown Phoenix where Arpaio admitted to selling the posters and promised Plaintiff

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that he would “make it up to [Plaintiff] somehow.” (Id. ¶ 20.) On November 21, 2014, a

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Maricopa County deputy admitted to Plaintiff that Defendants had sold framed copies of

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the posters at their charity auctions, leading Plaintiff to believe this occurred recently.

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(Id. ¶ 22.)

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On December 18, 2015, Plaintiff filed this lawsuit against Maricopa County and

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Sheriff Joe Arpaio and Jane Doe Arpaio, as husband and wife, alleging copyright

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infringement pursuant to 17 U.S.C. § 501 (2002).

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DISCUSSION
I.

Legal Standard

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To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a

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complaint must contain more than “labels and conclusions” or a “formulaic recitation of

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the elements of a cause of action;” it must contain factual allegations sufficient to “raise

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a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

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555 (2007). While “a complaint need not contain detailed factual allegations . . . it must

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plead ‘enough facts to state a claim to relief that is plausible on its face.’” Clemens v.

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DaimlerChrysler Corp., 534 F.3d 1017, 1022 (9th Cir. 2008) (quoting Twombly, 550

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U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual content

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that allows the court to draw the reasonable inference that the defendant is liable for the

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misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550

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U.S. at 556). The plausibility standard “asks for more than a sheer possibility that a

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defendant has acted unlawfully.

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consistent with’ a defendant’s liability, it ‘stops short of the line between possibility and

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plausibility of entitlement to relief.’” Id. (internal citations omitted) (quoting Twombly,

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550 U.S. at 557).

Where a complaint pleads facts that are ‘merely

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When analyzing a complaint for failure to state a claim under Rule 12(b)(6), “[a]ll

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allegations of material fact are taken as true and construed in the light most favorable to

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the nonmoving party.” Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However,

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legal conclusions couched as factual allegations are not given a presumption of

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truthfulness, and “conclusory allegations of law and unwarranted inferences are not

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sufficient to defeat a motion to dismiss.” Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.

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1998).

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II.

Analysis

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A.

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Defendant asserts that Plaintiff’s claim is barred by the statute of limitations

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because the pleading fails to establish that the alleged conduct occurred within the three

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years prior to the Complaint. (Doc. 36 at 3.) However, statute of limitations may only be

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raised as a defense when “the running of the statute is apparent from the face of the

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complaint” and should only be granted when “the assertions of the complaint . . . would

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not permit the plaintiff to prove that the statute was tolled.” Jablon v. Dean Witter &

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Co., 614 F.2d 677, 682 (9th Cir. 1980). Under 17 U.S.C. § 507(b) (1998), a civil action

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for copyright infringement must be brought within three years after the claim accrues. A

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cause of action for copyright infringement begins to accrue when “one has knowledge of

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a violation or is chargeable with such knowledge.” Roley v. New World Pictures, Ltd., 19

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F.3d 479, 481 (9th Cir. 1994) (citing Wood v. Santa Barbara Chamber of Commerce,

Statute of Limitations

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Inc., 507 F. Supp. 1128, 1135 (D. Nev. 1980)). Recovery is barred on claims that

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accrued more than three years before commencement of a lawsuit. Id. at 481.

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Here, Plaintiff alleges that he learned Defendants were selling the posters at

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“Phoenix-based auctions and possibly other places” in December 2012. (Am. Compl.

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¶ 19.) Further, he alleges he was told up to two years later that Defendants had recently

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sold his work. Plaintiff filed his original Complaint on December 18, 2015. (Doc. 1.)

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Therefore, it is not apparent from the face of the complaint that Plaintiff’s claim is time-

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barred.

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sufficiently pleaded that Defendants’ alleged infringement took place within the three

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Construed in a light most favorable to the nonmoving party, Plaintiff has

year statute of limitations.

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B.

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Defendants argue that Plaintiff’s allegation of copyright infringement is “not

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facially plausible.” (Doc. 36 at 4.) Plaintiff, however, sufficiently pleads that Defendants

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engaged in copyright infringement by referencing two specific instances where

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Defendants admitted to liability. (Am. Compl. ¶¶ 20, 22.) Further, contrary to the

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Defendants’ argument, these allegations are not conclusory; rather, Plaintiff alleges

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specific instances where the Defendants expressly acknowledged to him that they sold

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Plaintiff’s copyrighted work.

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“information and belief,” these assertions only go to Young’s conspiratorial conduct and

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do not weigh on the merits of Plaintiff’s instant claim against Defendants. Twombly, 550

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U.S. at 551. Defendants also claim that Plaintiff “never pleads that Defendants knew the

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posters were copyright-protected at the time of the alleged sale.” (Doc. 36.) This,

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however, is not a required element for establishing copyright infringement.

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Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) (finding that “[t]o

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establish [copyright] infringement, two elements must be proved: (1) ownership of a

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valid copyright, and (2) copying of constituent elements of the work that are original.”)

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Accordingly, the Plaintiff has pleaded enough factual content to allow the Court to “draw

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the reasonable inference that the defendant is liable for the misconduct alleged.”

Sufficiency of the Pleadings

And while Plaintiff frequently asserts facts based on

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Feist

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Ashcroft, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556).
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss (Doc. 36)
is DENIED.
Dated this 20th day of September, 2016.

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Honorable G. Murray Snow
United States District Judge

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