Levingston v. Earle et al

Filing 33

ORDER granting Defendants' Motion to Dismiss 23 in full with prejudice; denying Plaintiff's Motion to Disqualify the Honorable Judge Teilborg 31 ; Defendants may move for attorneys' fees as prescribed in the Court's earlier Order. See (Doc. 30 at 8). IT IS FURTHER ORDERED that the Clerk shall terminate this case. Signed by Senior Judge James A Teilborg on 3/26/2014.(ALS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Lynnell Levingston,

No. CV-12-08165-PCT-JAT
Plaintiff,

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v.

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ORDER

Victoria L. Earle; the Law Office of
Victoria L. Earle, LLC, an Arizona limited
liability company; Patricia V. Piburn and
Raymon L. Piburn, husband and wife,

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Defendants.

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Pending before the Court is Plaintiff Lynnell Levingston’s Memorandum in

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Support of Opposition to Defendant’s Claim of “Fair Use” and Motion to Disqualify the

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Honorable Judge Teilborg (Doc. 31). The Court now rules on all pending matters.

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I.

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Background
In its previous Order, the Court summarized the background of this dispute as

follows:
In 2008, Plaintiff authored and published a book called The
Road Memoir of Corruption and Abuse of Power (the
“Book”). (Doc. 22 at 2). Plaintiff later registered the Book
with the United State[s] Copyright Office. Id. at 3. Plaintiff
also posts writings to a self-hosted Internet Blog entitled
Three Men Make a Tiger (the “Blog”). Id. at 2.
On August 24, 2009, Plaintiff commenced an action for
copyright infringement of the Book against at least some of
the Defendants in the district court. (Doc. 23-5 at 2). While
the action was pending, Plaintiff filed a Chapter 7 petition in
the United States Bankruptcy Court, District of Arizona. Id.
In the schedule submitted to the Bankruptcy Court dated
December 7, [2]009, Plaintiff listed the Book as an asset, but

Plaintiff did not list (1) the copyright right infringement
claims related to the Book, (2) the Blog, or (3) the copyright
infringement claim related to the Blog. (Doc. 23-2). The
district court ultimately dismissed the copyright infringement
action because Plaintiff failed to substitute or join the
bankruptcy trustee, or alternatively, Plaintiff failed to allege
that the action was exempt from the bankruptcy estate or
abandoned by the bankruptcy trustee. (Doc. 23-5 at 4).

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On August 16, 2012, Plaintiff filed a Complaint (Doc. 1) with
this Court, and on April 29, 2013, Plaintiff filed an Amended
Complaint (Doc. 22). In the Amended Complaint, Plaintiff
stated four claims for relief: (1) copyright infringement under
17 U.S.C. § 501, (2) contributory infringement, (3) civil
conspiracy to commit misappropriation, and (4) violations of
the Digital Millennium Copyright Act under 17 U.S.C. §
1201(a). On May 20, 2013, Defendants filed a Motion to
Dismiss. (Doc. 23). Plaintiff responded to Defendants Motion
to Dismiss in a First Opposition (Doc. 24) and a Second
Opposition (Doc. 26). With the first Opposition, Plaintiff filed
a Motion for Sanctions (Doc. 24) and a Motion for Out-ofPocket Costs. After Defendants responded to the Amended
Complaint, Plaintiff filed a Motion for Entry of Default (Doc.
27) and a Motion to Compel Compliance with the Rule 16
Conference (Doc. 29).

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Levingston v. Earle, 2013 WL 6119036, at *1 (D. Ariz. Nov. 21, 2013).
II.

Copyright Infringement Claim
In its previous Order, the Court granted Defendants’ Motion to Dismiss (Doc. 23)

on all claims except Plaintiff’s copyright infringement claim for Defendants’ alleged
infringement of Plaintiff’s book, The Road Memoir of Corruption and Abuse of Power
(the “Book”). Levingston, 2013 WL 6119036, at *1, *4-5. Plaintiff’s remaining
infringement claim arose because Defendants attached copies of the Book to their
pleadings when proceeding in court against Plaintiff for alleged harassment. Id. at *3.
Plaintiff alleges Defendants’ actions constituted willful copyright infringement. (Doc. 22
at 4-5).
Although Defendants’ actions were clearly fair use, see 17 U.S.C. § 107,
Defendants inexplicably failed to raise fair use as an affirmative defense. See Levingston,
2013 WL 6119036, at *3. Accordingly, the Court noted its power to sua sponte dismiss a
complaint if “the plaintiff is given notice and an opportunity to be heard.” Id. (quoting
Wachtler v. Cnty. of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994)). The Court ordered
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Plaintiff to file a memorandum addressing only the issue of fair use and reserved its

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ruling on Plaintiff’s infringement claim until Plaintiff had such opportunity to be heard.

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Id. at *5. The Court has considered Plaintiff’s memorandum (Doc. 31) and now rules on

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whether to dismiss Plaintiff’s infringement claim.1

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Plaintiff’s memorandum does not contain any significant original arguments

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concerning the doctrine of fair use in this case, or even fair use in general.2 Instead, it

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contains nearly fifty pages of reproductions, either in whole or in substantial part, of

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various articles concerning fair use.3 See (Doc. 31 at 9-56). Plaintiff reproduces

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substantial portions of, among others, Barton Beebe, An Empirical Study of U.S.

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Copyright Fair Use Opinions, 1978-2005, 156 U. Pa. L. Rev. 549 (2008) (Doc. 31 at 9-

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33); Joel Friedlander, What Every Writer Ought to Know about Fair Use and Copyright,

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The Book Designer (Feb. 8, 2010), http://www.thebookdesigner.com/2010/02/what-

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every-writer-ought-to-know-about-fair-use-and-copyright/ (Doc. 31 at 34-37); Rich Stim,

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Summaries

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http://fairuse.stanford.edu/overview/fair-use/cases/ (last visited Mar. 17, 2014) (Doc. 31

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at 38-40);

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Fair Use, Copyright Codex, http://www.copyrightcodex.com/fair-use-toc/18-fair-use

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(last visited Mar. 17, 2014) (Doc. 31 at 40-46); Gene Quinn & Michael Sullivan,

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Copyright Fair Use Cases of the United States Supreme Court, IPWatchdog (Oct. 5,

of

Fair

Use

Cases,

Stanford

Copyright

&

Fair

Use

Ctr.,

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Plaintiff twice filed her memorandum for the purpose of including additional
supporting exhibits. (Doc 32).
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Plaintiff’s sole argument concerning the application of the fair use doctrine to the
specific facts in this case appears to be contained in her Exhibit 24, which is a “Fair Use
Checklist” under which Plaintiff has, without comment, checked boxes under factors
purporting to favor or oppose fair use. These boxes include factors such as “Commercial
activity,” “Bad-faith behavior,” and “Repeated or long-term use.” (Doc. 31-4). Plaintiff
checked eleven boxes purporting to oppose fair use and only one favoring fair use. (Id.)
Plaintiff fails to connect these conclusory allegations to specific facts of this case, and
this “Fair Use Checklist” does not support a finding of fair use.
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The memorandum also contains sections on standing and facts about her
bankruptcy petition (Doc. 31 at 3-9, 56-58). Because the Court has already ruled on
standing and ordered Plaintiff to “address only fair use as discussed in this Order,”
Levingston, 2013 WL 6119036, at *4, the Court will not consider these discussions.
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2012),

http://www.ipwatchdog.com/2012/10/05/copyright-fair-use-cases-of-the-united-

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states-supreme-court/id=26225 (Doc. 31 at 47-52); and Ninth Circuit Model Jury

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Instructions § 17.18 (2013 ed.) (Doc. 31 at 52-56).

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The Court has reviewed the Plaintiff’s quoted commentaries and finds them to be

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consistent with the conclusion of the Ninth Circuit Court of Appeals that reproductions of

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works in judicial proceedings are fair use. See Religious Tech. Ctr. v. Wollersheim, 971

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F.2d 364, 367 (9th Cir. 1992). Defendants’ reproduction of the Book constituted fair use

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because it was a noncommercial use necessary to provide evidentiary support for

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Defendants’ court proceedings.4 Defendants could not attempt to prove Plaintiff’s written

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harassment without providing the court with the allegedly harassing material.
Consequently, Plaintiff fails to state a claim against Defendants for copyright

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infringement and the Court will dismiss this claim.

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III.

Motion to Disqualify

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Plaintiff additionally moves in her memorandum to disqualify the undersigned

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Judge.5 (Doc. 31 at 58). Plaintiff’s basis for sanctions is footnote 1 in the Court’s

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previous Order, which states: “For purposes of the Motion to Dismiss, the Court assumes

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Plaintiff’s affidavit is true. However, if the Court later finds that Plaintiff has made false

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statements in the affidavit that she submitted, Defendants may seek sanctions against

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Plaintiff.” Levingston, 2013 WL 6119036, at *2 n.1.

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Plaintiff contends that this footnote evinces the Court’s violation of “The

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Universal Human Rights Act of 1998 which guarantees Plaintiffs’ [sic] dignity.” (Doc. 31

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at 1). “The Universal Human Rights Act of 1998” appears not to exist; the Court

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presumes Plaintiff refers to the similarly named “Universal Declaration of Human

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The Court notes that if Plaintiff’s theory of infringement were true, if Plaintiff
lacked a license to reproduce the commentaries that she has included in her
memorandum, she would be liable for willful copyright infringement with statutory
damages of up to $150,000 per infringement. See 17 U.S.C. § 504(c)(2). Presumably
Plaintiff is not arguing for her own infringement liability.
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Because Plaintiff has not filed an affidavit avowing that the undersigned Judge
has a personal bias or prejudice against her, the undersigned Judge may, in the absence of
actual bias or prejudice, rule on Plaintiff’s motion. See 28 U.S.C. §§ 144, 455.
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Rights,” (the “Declaration”) which was adopted in 1948 and recognizes the fundamental

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dignity of human beings. See Universal Declaration of Human Rights, G.A. Res. 217A

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(III), U.N. Doc. A/810 (1948). The Declaration “does not of its own force impose

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obligations as a matter of international law.” Sosa v. Alvarez-Machain, 542 U.S. 692, 734

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(2004). Nor is it self-executing, and therefore it “did not itself create obligations

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enforceable in the federal courts.” Id. at 735; see also Guaylupo-Moya v. Gonzales, 423

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F.3d 121, 133 (2d Cir. 2005) (noting that the Declaration did not create “independent,

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privately enforceable rights”). Because Plaintiff has no enforceable rights under the

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Declaration, her argument is procedurally improper.6

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Plaintiff’s second contention is that the Court’s actions violated Canon 2 of the

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Arizona Code of Judicial Conduct. (Doc. 31 at 1, 58-59). The Court has not adopted the

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Arizona Code of Judicial Conduct, and consequently could not have violated its Canons.

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Cf. McKinney v. Ryan, 2009 WL 2432738, at *16 n.9 (D. Ariz. Aug. 10, 2009) (assertion

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of violation of Arizona Code of Judicial Conduct did not state a federal claim). Instead,

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the Court adheres to the Code of Conduct for United States Judges (the “Code of

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Conduct”). The Court has reviewed the Code of Conduct and finds that it has not

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committed any proscribed conduct in this case.7 Plaintiff’s misinterpretation of the

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Court’s footnote does not give rise to a Code of Conduct violation, and adverse rulings

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alone are not sufficient to show bias, see Liteky v. United States, 510 U.S. 540, 555

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(1994).
Accordingly, the Court denies Plaintiff’s motion to disqualify the undersigned

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Judge.

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IV.

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Conclusion
For the foregoing reasons,

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The Court expresses no opinion as to the merit of Plaintiff’s argument.

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Per Plaintiff’s request, (Doc. 31 at 58), the Court has also reviewed Plaintiff’s
Exhibit 30 attached to her memorandum. Exhibit 30 contains a copy of a pleading filed in
an unrelated 2006 Ohio state court proceeding and a copy of Defendant Victoria L.
Earle’s directory listing on the State Bar of Arizona website. (Doc. 32-5). Neither is
relevant to Plaintiff’s motion.
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IT IS ORDERED granting Defendants’ Motion to Dismiss (Doc. 23) in full with
prejudice.
IT IS FURTHER ORDERED denying Plaintiff’s Motion to Disqualify the
Honorable Judge Teilborg (Doc. 31).
IT IS FURTHER ORDERED that Defendants may move for attorneys’ fees as
prescribed in the Court’s earlier Order. See (Doc. 30 at 8).

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IT IS FURTHER ORDERED that the Clerk shall terminate this case.

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Dated this 26th day of March, 2014.

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