Budiyanto et al v. My Vintage Venue LLC et al
Filing
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ORDERED: Plaintiffs' Complaint (Doc. 1 ) is dismissed with prejudice pursuant to Fed. R. Civ. P. 41(b). All pending motions are denied as moot. This action is dismissed in its entirety. The Clerk of Court shall enter a judgment accordingly and terminate this action. Signed by Judge Steven P Logan on 10/31/17.(EJA)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Yoshi Budiyanto, et al.,
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Plaintiffs,
vs.
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My Vintage Venue, LLC, et al.,
Defendants.
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Couple of Bartenders, LLC, et al.,
Crossclaimants,
vs.
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Jeanne and John Doe Colquette, et al.,
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Crossdefendants.
Lavender & Old Lace, LLC,
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Crossclaimant,
vs.
Emily and John Doe Hughes, et al.,
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Crossdefendants.
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No. CV-17-01410-PHX-SPL
ORDER
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Jeanne Colquette dba Events Your Way,
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Crossclaimant,
vs.
My Vintage Venue, LLC, et al.,
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Crossdefendants.
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Pixy Cakes, LLC, et al.,
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Crossclaimants,
vs.
My Vintage Venue, LLC, et al.,
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Crossdefendants.
Gail and TimothyArchambeau,
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Crossclaimants,
vs.
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Lavender and Old Lace, LLC,
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Crossdefendant.
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For the reasons that follow, this case will be dismissed pursuant to Rule 41(b) of
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the Federal Rules of Civil Procedure.
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I.
Background
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Plaintiffs Yoshi Budiyanto and Rebekah Kay Lynn Huges allege that on May 21,
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2016, professional photographer Rizalde Sherwood took a “special wedding photograph”
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of them “standing under the gazebo” at their wedding reception. (Docs. 1 ¶ 25; 1-1.) On
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August 18, 2016, Plaintiffs, through attorney Sylvia Lynne Thomas, registered a
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copyright in a “photograph, Wedding Photograph Compilation.” (Doc. 1-1 at 12-13.) On
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May 8, 2017, Plaintiffs, through counsel, filed a complaint against 33 defendants for
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copyright infringement, contributory copyright infringement, vicarious copyright
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infringement, and violations of the Digital Millennium Copyright Act (“DMCA”). (Doc.
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1.) The complaint alleges that Defendants infringed Plaintiffs’ copyright by, among other
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things, creating a flyer depicting the “special wedding photograph,” sharing the flyer,
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and/or posting the flyer on social media between June and July of 2016.
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Following a prolonged series of orders and filings concerning service and answers,
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in July 2017, Plaintiffs noticed their intent to amend their complaint. (Docs. 110, 113.)
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The Court ordered that Plaintiffs would have until August 10, 2017 to file their amended
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complaint, and all Defendants would have 21 days of the filing of the amended complaint
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to file answers, counterclaims, and crossclaims. In the event Plaintiffs did not file an
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amended complaint, Defendants were alternatively given until August 17, 2017 to file
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answers, counterclaims, and crossclaims. (Doc. 116.)
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No amended complaint was filed, and on August 17, 2017, Defendants American
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Family Mutual Life Insurance Company, Pixy Cakes, LLC, and Tina and Stephen
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Cubbon filed a Motion to Dismiss. (Doc. 150.) On request, the Court extended the
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deadline for Plaintiffs to file a response in opposition to the motion to September 11,
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2017. (Docs. 167, 172.) Plaintiffs however did not file a response. Instead, without
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consent of the parties or leave of court, on September 11, 2017, Plaintiffs filed an
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amended complaint. (Doc. 186.) Because it was not timely filed in accordance with Rule
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15(a), the amended complaint was stricken. (Doc. 188.)
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On October 3, 2017, Defendants filed a “Notice Re: Plaintiffs’ Counsel,” attaching
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a September 6, 2017 Final Judgment and Order issued by the Presiding Disciplinary
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Judge for the Arizona Supreme Court suspending Plaintiffs’ counsel from the practice of
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law effective September 15, 2017. (Doc. 194.) 1 The Court called counsel to show cause
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in writing as to why she should not be removed as counsel in this case (Doc. 197), to
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The Order states that the “matter was heard by the Hearing Panel, which rendered
its Decision and Order on August 16, 2017. On August 30, 2017, Ms. Thomas filed a
notice of appeal pursuant to Rule 59(a), Ariz. R. Sup. Ct., but filed no request for stay.
The time for stay [] expired[.]” (Doc. 194-1.) See also In the Matter of Sylvia L. Thomas,
Bar No. 023845, PDJ 2017-9053 (Sep. 6, 2017), found in its entirety at
https://www.azcourts.gov/LinkClick.aspx?fileticket=67M-TSvbnK8%3D&portalid=101
(last accessed on October 30, 2017).
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which counsel filed a response on October 6, 2017 (Doc. 199).
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On October 5, 2017, Defendants filed a Notice of Non-Opposition asking that the
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Court grant their motion and dismiss the case due to Plaintiffs’ failure to timely respond.
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(Doc. 198.) On October 10, 2017, Plaintiffs filed a Motion for Leave to file a First
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Amend Complaint (Doc. 202), and a Response to the Notice of Non-Opposition on
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October 19, 2017 (Doc. 205). Defendants have filed responses opposing Plaintiffs’
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request for leave to amend. (Docs. 206-210.)
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II.
Legal Standard
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Rule 41(b) of the Federal Rules of Civil Procedure provides that “[i]f the plaintiff
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fails to prosecute or to comply with these rules or a court order, a defendant may move to
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dismiss the action or any claim against it.” The district court also has the inherent power
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to dismiss a case for failure to prosecute, for failure to comply with court orders, or for
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failure to follow the local rules. See Link v. Wabash Railroad Co., 370 U.S. 626, 629-31
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(1962) (recognizing that even though the language of Rule 41(b) requires a motion, the
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district court has sua sponte power to dismiss for failure to prosecute); Ghazali v. Moran,
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46 F.3d 52, 53 (9th Cir. 1995) (failure to comply with local rules is a proper ground for
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dismissal); Ferdik v. Bonzelet, 963 F.2d 1258, 1260 (1992) (a district court may dismiss
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an action for failure to comply with an order of the court); Wanderer v. Johnson, 910
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F.2d 652, 656 (9th Cir. 1990). “In determining whether to dismiss a claim for failure to
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prosecute or failure to comply with a court order, the Court must weigh the following
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factors: (1) the public’s interest in expeditious resolution of litigation; (2) the court’s need
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to manage its docket; (3) the risk of prejudice to defendants/respondents; (4) the
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availability of less drastic alternatives; and (5) the public policy favoring disposition of
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cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 639, 642 (9th Cir. 2002).
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III.
Discussion
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Having considered the five factors here, the Court concludes that dismissal is
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warranted. While public policy favors disposition of cases on their merits, this factor is
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outweighed by Plaintiffs’ delayed prosecution of this case and continued noncompliance
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with the Court’s Orders and the governing rules. See Pagtalunan, 291 F.3d at 643;
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Yourish v. Cal. Amplifier, 191 F.3d 983, 986 (9th Cir. 1999); Moneymaker v. CoBen (In
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re Eisen), 31 F.3d 1447, 1452 (9th Cir. 1994) (“the failure to prosecute diligently is
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sufficient by itself to justify a dismissal, even in the absence of a showing of actual
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prejudice to the defendant from the failure”) (internal quotation omitted). To date,
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Plaintiffs have yet to file a response to Defendants’ motion to dismiss. Rather, Plaintiffs
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have submitted other numerous filings, none of which present any coherent, non-
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frivolous explanation for their failure to respond to the motion, for their failure to inform
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the Court of counsel’s suspension, or for permitting counsel to continue representing
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Plaintiffs in this case in spite of the fact that she is not authorized to practice law. See
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LRCiv 83.1 and 83.2. The filings instead manifest Plaintiffs’ continued and increasing
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inability to comply with the requirements set forth by the rules and the orders of this
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Court.
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In counsel’s 46-page response (Doc. 199) to the Court’s Order concerning her
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suspension, which was accompanied by a 186-page attachment (Docs. 199-1, 200),
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“Thomas challenges the Disciplinary Court suspension, tantamount to revocation of her
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state bar membership, on the grounds that pursuant to an antitrust conspiracy involving
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deprivation of her rights, privileges, and immunities secured by the Constitution and laws
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including discrimination based on her national origin, ethnicity, race, sex, gender, age,
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civil and social economic status.” (Doc. 199 at 12.) She “requests that this Court take no
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action regarding the Disciplinary Court’s suspension and thus permit her to continue in
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practice, representation and prosecution of the Plaintiffs in this matter before it” (Doc.
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199 at 45), because “the ‘undertaking [of] any other inquiry’ targeted by the District
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Court to strengthen or ‘shore up’ the Hearing Panel’s unsubstantiated reasoning in favor
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of a suspension, tantamount to disbarment, beyond that set forth in its Decision and
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Order, would serve to further a continuing violation of antitrust laws, constitutional
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guarantees and their international human rights analogues constituting an ongoing
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systemic unlawful policy and/or practice” (Doc. 199 at 7-8).
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In their October 19, 2017 filing, Plaintiffs argue that Plaintiffs were not required to
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respond to Defendants’ motion to dismiss because the proposed amended complaint
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mooted it. (Doc. 205 at 13-14.) This argument is without merit. Both of Plaintiffs’
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attempts to file an amended complaint were untimely (see Docs. 116, 142), and leave to
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file an untimely amended complaint would be futile. Cf. Ramirez v. Cnty. of San
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Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (holding that when an amended
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complaint is timely filed under Fed. R. Civ. P. 15(a), it supersedes the original, and moots
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a pending motion to dismiss that is targeted at the superseded complaint).
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As argued by the Defendants, neither the complaint nor the amended complaint set
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forth allegations which show that Plaintiffs (rather than their photographer) owned a
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copyright in the “special wedding photograph” at the time of the alleged infringing
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conduct, and therefore do not show that Plaintiffs have standing to bring their copyright
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claims. See 17 U.S.C. § 501(b); Silvers v. Sony Pictures Entertainment, Inc., 402 F.3d
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881, 884 (9th Cir. 2005). Contrary to Plaintiffs’ response, it is not “indisputable that
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paragraphs 36-38 of the Budiyantos’ Amended Verified Complaint cure the alleged
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deficiencies concerning (a) the Budiyantos’ exclusive copyright ownership of their
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special wedding photograph at the time of the infringement by Pixy Cakes, (b) standing,
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and (c) the existence and date of the WMFH arrangement, as alleged within the AmFam
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Defendants’ Motion to Dismiss.” (Doc. 205 at 13-14.) Rather, not only does the amended
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complaint fail to address the defect in standing, Plaintiffs’ submissions demonstrate that
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the defect cannot be cured by the allegation of other facts. Under the express terms of the
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original January 8, 2016 “Wedding Contract” submitted by Plaintiffs, the photographer
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owned the copyright to Plaintiffs’ wedding photographs. (Doc. 200-5 at 15-16.) While it
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is true that under certain circumstances, assignment of ownership may confer standing to
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sue for accrued claims to the assignee, see DRK Photo v. McGraw-Hill Global Education
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Holdings, LLC, 870 F.3d 978, 986 (9th Cir. 2017), no valid assignment or transfer is
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alleged to have occurred here. Plaintiffs allege and submit supporting documentation
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which show that in August 2016, after the alleged infringing events occurred, at the
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direction of counsel, Plaintiffs and the photographer signed a backdated version of the
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January 2016 Wedding Contract (referred to as a “novation”), which was altered to read
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as a “work made for hire” agreement under which Plaintiffs owned exclusive copyright in
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the wedding photographs. (See Docs. 202-1 ¶¶ 36-38; 199-1; 200-5.) The August 2016
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“novation” however does not evince an assignment or transfer of the accrued claims from
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the photographer to Plaintiffs. See DRK, 870 F.3d at 985 n. 5 (“a subsequent legal owner
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may have standing to pursue accrued causes of action where the causes of action were
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transferred along with full ownership of the copyright”). Further, as the “novation” was
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not signed on the date purported, and makes no reference to the original agreement that
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was actually signed on that date, the backdated agreement itself could serve as grounds
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for dismissal of this action. See Fjelstad v. Am. Honda Motor Co., 762 F.2d 1334, 1338
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(9th Cir. 1985); Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983)
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(“courts have inherent power to dismiss an action when a party has willfully deceived the
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court and engaged in conduct utterly inconsistent with the orderly administration of
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justice”); see also Western Coach Corp. v. Roscoe, 650 P.2d 449, 454 (Ariz. 1982) (a
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valid novation is the formation of a new contract that extinguishes a previously valid
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obligation).
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Lastly, because the additional allegations in the proposed amended complaint are
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factually frivolous and do not give rise to a plausible claim for relief, they also do not
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serve as a basis to excuse Plaintiffs’ continued failure to respond to Defendants’ motion.
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In the proposed amended complaint, Plaintiffs name seven additional defendants -
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Defendants’ insurers and counsel. They also bring two additional claims for violations of
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the Clayton Antitrust Act, 15 U.S.C. § 15 (Count Seven) and Intentional Infliction of
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Emotional Distress (Count Eight), alleging that Defendants, the State Bar of Arizona, and
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Arizona State University participated in a conspiracy to have Plaintiffs’ counsel
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suspended from the practice of law “in order to exclude her from participating as an
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active
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communication and academic market within and between the territory of México, the
competitor
within
a
niche
interdisciplinary
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law,
business
franchisor,
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United States and this District, and thus erode competition in general.” (Doc. 202-1 ¶
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267.) Plaintiffs claim this alleged conspiracy caused them to “suffer antitrust injuries,”
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and caused counsel “emotional distress so severe that it could be expected to adversely
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affect the Budiyantos’ mental health.” (Doc. 202-1 ¶¶ 268, 281.)
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these claims are frivolous on their face. See Denton v. Hernandez, 504 U.S. 25, 32-33
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(1992) (“a finding of factual frivolousness is appropriate when the facts alleged rise to the
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level of the irrational or the wholly incredible, whether or not there are judicially
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noticeable facts available to contradict them”); Neitzke v. Williams, 490 U.S. 319, 325
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(1989) (a “frivolous” claim lacks an arguable basis either in law or in fact; the “term
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‘frivolous’… embraces not only the inarguable legal conclusion, but also the fanciful
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factual allegation”).
The Court finds that
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Plaintiffs’ repeated improper, unsubstantiated filings consume judicial resources
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and impede the timely administration of litigation. Plaintiffs’ continued failure to respond
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to Defendants’ motion impairs the progression of this case to being resolved on its merits.
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See Yourish, 191 F.3d at 990; see also In re Phenylpropanolamine Prod. Liab. Litig., 460
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F.3d 1217, 1228 (9th Cir. 2006) (“A defendant suffers prejudice if the plaintiff’s actions
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impair the defendant’s ability to go to trial or threaten to interfere with the rightful
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decision of the case.”). This case remains at an indefinite impasse, and Plaintiffs’ ongoing
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noncompliance demonstrates that dismissal is warranted; undertaking any lesser measure
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would be unavailing. The Court has no reason to believe that alternative counsel or
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further amendment would bring about a different result and set this action on course to be
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adjudicated on its merits. This conclusion is validated by Plaintiffs’ affidavit in which
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they attest that they concur with counsel’s prosecution of their case, and believe in the
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alleged conspiracy against counsel. (See Docs. 205 at 8; 199-1.)
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Therefore, the relevant factors compel that dismissal pursuant to Rule 41(b) is
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appropriate. See Yourish, 191 F.3d at 992. Although the Court is reluctant to impose the
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ultimate sanction of dismissal with prejudice where the fault appears to lie more with the
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attorney than the litigants, the circumstances here demand that dismissal with prejudice is
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appropriate. See Schmidt v. Herrmann, 614 F.2d 1221, 1223–24 (9th Cir. 1980).
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Accordingly,
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IT IS ORDERED:
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1. That Plaintiffs’ Complaint (Doc. 1) is dismissed with prejudice pursuant to
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Fed. R. Civ. P. 41(b);
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2. That all pending motions are denied as moot;
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3. That this action is dismissed in its entirety; 2 and
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4. That the Clerk of Court shall enter a judgment accordingly and terminate this
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action.
Dated this 31st day of October, 2017.
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Honorable Steven P. Logan
United States District Judge
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The Court lacks diversity jurisdiction over the parties’ crossclaims (Docs. 46, 47,
131, 148, 151, 152), and declines to exercise supplemental jurisdiction over them. See 28
U.S.C. § 1367(c)(3); Carlsbad Tech., Inc. v. HIF Bio, Inc., 556 U.S. 635, 639 (2009);
Oliver v. Ralphs Grocery Co., 654 F.3d 903, 911 (9th Cir. 2011); Gini v. Las Vegas
Metro. Police Dep’t, 40 F.3d 1041, 1046 (9th Cir. 1994).
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