(PS) Smith v. Counts et al

Filing 74

ORDER signed by Magistrate Judge Jeremy D. Peterson on 7/3/24 ORDERING that service is appropriate on defendants Charles Lago, Ryan Hudson, John Cardot, Matthew Quall, Matthew Dardenne, Franco Zampetti, Richard Mortimer, KK Chan, and Unbelievers Movie, LLC. The Clerk is directed to issue process and to send plaintiff an instruction sheet for service of process by the United States Marshal (USM), nine USM-285 forms, a summons form, and an endorsed copy of plaintiff's 72 amended com plaint. Within 60 days after this order is served, plaintiff shall supply the USM all information needed by the Marshal to effect service of process. Within 21 days after submitting the required materials to the USM, plaintiff shall file with th is court a declaration stating the date on which plaintiff submitted the required documents to the USM. Within 60 days after receiving the necessary materials from plaintiff, the USM is directed to serve process on defendants without prepayment of costs. (Kastilahn, A)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 TREVOR L. SMITH, 12 Plaintiff, 13 14 Case No. 2:20-cv-02441-TLN-JDP (PS) ORDER v. FINDINGS THAT THE SECOND AMENDED COMPLAINT STATES A COGNIZABLE CLAIM AND DIRECTING SERVICE PAUL COUNTS, et al., 15 Defendants. ECF No. 72 16 17 18 Plaintiff brings this action against fifteen defendants, alleging claims for violation of 19 federal copyright and state laws. The second amended complaint’s allegations are, for screening 20 purposes only, sufficient to state a cognizable claim, and I will therefore direct service for those 21 defendants not previously served.1 Screening and Pleading Requirements 22 23 A federal court must screen the complaint of any claimant seeking permission to proceed 24 in forma pauperis. See 28 U.S.C. § 1915(e). The court must identify any cognizable claims and 25 dismiss any portion of the complaint that is frivolous or malicious, fails to state a claim upon 26 27 28 The court previously directed service for the seven defendants named in plaintiff’s original complaint. ECF Nos. 4 & 5. As the original defendants have already been served, I will only direct service for the nine defendants that were not named in the original complaint. 1 1 1 which relief may be granted, or seeks monetary relief from a defendant who is immune from such 2 relief. Id. 3 A complaint must contain a short and plain statement that plaintiff is entitled to relief, 4 Fed. R. Civ. P. 8(a)(2), and provide “enough facts to state a claim to relief that is plausible on its 5 face,” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The plausibility standard does not 6 require detailed allegations, but legal conclusions do not suffice. See Ashcroft v. Iqbal, 556 U.S. 7 662, 678 (2009). If the allegations “do not permit the court to infer more than the mere 8 possibility of misconduct,” the complaint states no claim. Id. at 679. The complaint need not 9 identify “a precise legal theory.” Kobold v. Good Samaritan Reg’l Med. Ctr., 832 F.3d 1024, 10 1038 (9th Cir. 2016). Instead, what plaintiff must state is a “claim”—a set of “allegations that 11 give rise to an enforceable right to relief.” Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1264 12 n.2 (9th Cir. 2006) (en banc) (citations omitted). 13 The court must construe a pro se litigant’s complaint liberally. See Haines v. Kerner, 404 14 U.S. 519, 520 (1972) (per curiam). The court may dismiss a pro se litigant’s complaint “if it 15 appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which 16 would entitle him to relief.” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017). 17 However, “‘a liberal interpretation of a civil rights complaint may not supply essential elements 18 of the claim that were not initially pled.’” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 19 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). 20 21 Analysis The second amended complaint alleges that in 2012, plaintiff authored the novel 22 Unbelievers. ECF No. 72 at 7. The following year, he wrote a screenplay based on the novel 23 with the intention of making a film. Id. He claims that he is the owner of copyright registrations 24 for the novel and screenplay, and that he is the sole “Copyright Claimant for the Pre-Registration 25 of the UNBELIEVERS motion picture.” Id. at 5. 26 After completing the screenplay, plaintiff solicited defendant Counts to assist with making 27 the film, and in 2015, filming commenced. Id. at 7-10. However, in 2017, defendants Counts 28 and Bennett filed a lawsuit against plaintiff in an “effort to force Plaintiff into giving up all his 2 1 legal right to” the film.2 Id. at 12, 17. Although that suit was voluntarily dismissed, it resulted in 2 cast members quitting the project and eventual termination of production. Id. However, in 3 October 2018, plaintiff learned that the defendants were “unlawfully editing” the film and 4 attempting to sell it notwithstanding plaintiff’s demands to “cease and desist their unlawful 5 actions.” Id. at 15, 18. Plaintiff further alleges that defendants edited, sold, and aired a portion of 6 the film in violation of his exclusive copyright. Id. at 18-20. 7 8 For purposes of screening, I find that the second amended complaint states a claim upon which relief can be granted. 9 Accordingly, it is hereby ORDERED that: 10 1. Service is appropriate on defendants Charles Lago, Ryan Hudson, John Cardot, 11 Matthew Quall, Matthew Dardenne, Franco Zampetti, Richard Mortimer, KK Chan, and 12 Unbelievers Movie, LLC. 13 2. The Clerk of the Court is directed to issue process and to send plaintiff an instruction 14 sheet for service of process by the United States Marshal, nine USM-285 forms, a summons form, 15 and an endorsed copy of plaintiff’s amended complaint filed March 9, 2022. ECF No. 72. 16 3. Within sixty days after this order is served, plaintiff shall supply the U.S. Marshal all 17 information needed by the Marshal to effect service of process. The required documents shall be 18 submitted directly to the United States Marshal either by personal delivery or by mail to: United 19 States Marshals Service, 501 I Street, Suite 5600, Sacramento, CA 95814 (tel. 916-930-2030). 20 The court anticipates that, to effect service, the U.S. Marshal will require, for each defendant, at 21 least: 22 a. One completed summons; 23 b. One completed USM-285 form; 24 c. One copy of the endorsed complaint, with an extra copy for the U.S. Marshal; 25 and 26 d. One copy of the instant order. 27 28 2 Defendant Bennet allegedly helped finance production of the film. ECF No. 72 at 11. 3 1 4. In the event the U.S. Marshal is unable, for any reason whatsoever, to effect service on 2 a defendant within ninety days of receiving this order the Marshal is directed to report that fact, 3 and the reasons for it, to the undersigned. 4 5. Within twenty-one days after submitting the required materials to the United States 5 Marshals Service, plaintiff shall file with this court a declaration stating the date on which 6 plaintiff submitted the required documents to the United States Marshal. Failure to file the 7 declaration in a timely manner may result in an order imposing appropriate sanctions. 8 9 6. Within sixty days after receiving the necessary materials from plaintiff, the United States Marshal is directed to serve process on defendants without prepayment of costs. 10 11 7. Plaintiff is cautioned that the failure to comply with this order may result in a recommendation that this action be dismissed. 12 13 IT IS SO ORDERED. 14 Dated: 15 16 July 3, 2024 JEREMY D. PETERSON UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 4

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