Rearden LLC et al v. Crystal Dynamics, Inc. et al
Filing
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ORDER DENYING MOTION FOR SUMMARY JUDGMENT PURSUANT TO FEDERAL RULE OF CIVIL PROCEDURE 56(D) by Judge Jon S. Tigar denying 55 Motion for Summary Judgment. (wsn, COURT STAFF) (Filed on 6/18/2018)
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UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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REARDEN LLC, et al.,
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Plaintiffs,
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v.
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CRYSTAL DYNAMICS, INC., et al.,
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Defendants.
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United States District Court
Northern District of California
Case No. 17-cv-04187-JST
ORDER DENYING MOTION FOR
SUMMARY JUDGMENT PURSUANT
TO FEDERAL RULE OF CIVIL
PROCEDURE 56(D)
Re: ECF No. 55
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Before the Court is Defendants, Crystal Dynamics’ and Square Enix’s motion for summary
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judgment. ECF No. 55. Plaintiffs, Rearden LLC and Rearden Mova LLC (collectively Rearden)
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oppose the motion. Alternatively, Rearden asks the Court to deny the motion pursuant to Federal
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Rule of Civil Procedure 56(d). For the reasons set forth below, the Court will grant Plaintiff’s
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request for relief under Rule 56(d).
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I.
BACKGROUND
This action centers on the MOVA Contour Reality Capture Program (“MOVA Contour” or
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“MOVA”), which – as the name suggests – is a program for capturing the motion of the human
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face to create images used in motion pictures. The ownership of this program and related
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hardware (collectively, the “Mova assets”) was contested in an earlier action.1 See Shenzhenshi, et
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al. v. Rearden, et al., No. 15-CV-00797 JST, ECF No. 1 (N.D. Cal. Feb. 20, 2015). On August
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11, 2017, the Court found that Rearden owns the MOVA assets. See Shenzhenshi, et al. v.
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Rearden, et al., No. 15-CV-00797 JST, ECF No. 427 at 18 (N.D. Cal. Aug. 11, 2017).
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The Statement of Decision in that action includes a summary of the facts underlying the
ownership dispute. See Shenzhenshi, et al. v. Rearden, et al., No. 15-CV-00797 JST, ECF No.
427 (N.D. Cal. Aug. 11, 2017).
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Rearden brought this action against Crystal Dynamics and Square Enix for copyright and
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patent infringement. See ECF No. 49 (First Amended Complaint, “FAC”). Rearden alleges that
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Crystal Dynamics’ Rise of the Tomb Raider videogame was released and distributed in the United
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States by Square Enix. FAC ¶ 1. Rearden contends that Crystal Dynamics used MOVA Contour
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output “in creating the Lara Croft CG face and then released multiple versions of the Rise of the
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Tomb Raider game from November 2015 through October 2016 which Square Enix distributed
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throughout the United States.” Id. ¶ 4. Rearden’s complaint repeatedly refers to statements and
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associated tweeted images made by Camilla Luddington, the star of the Rise of the Tomb Raider
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videogame, about the MOVA Contour program. See e.g., FAC ¶ 2, 91, 98, 99, 100, 103.
Defendants now move for summary judgment. ECF No. 55. Defendants concede that
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United States District Court
Northern District of California
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Crystal Dynamics contracted with another company, DD3, to use its “facilities and services for
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traditional performance capture sessions for the actors portraying the characters in the game.”
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ECF No. 55 at 9. They contend that “neither Crystal Dynamics nor Square Enix used MOVA, or
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requested, instructed, or directed DD3 to use MOVA, directly or indirectly in the creation of [Rise
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of the Tomb Raider], and in fact DD3 did not use MOVA in the creation of [Rise of the Tomb
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Raider].” Id. at 6.
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II.
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LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(d), a court may deny or defer considering a
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motion for summary judgment “[i]f a nonmovant shows by affidavit or declaration that, for
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specified reasons, it cannot present facts essential to justify its opposition.” Fed. R. Civ. P. 56(d).
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To prevail on a Rule 56(d) motion, “the parties opposing a motion for summary judgment must
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make (a) a timely application [that] (b) specifically identifies (c) relevant information, (d) where
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there is some basis for believing that the information sought actually exists.” Blough v. Holland
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Realty, Inc., 574 F.3d 1084, 1091 n.5 (9th Cir. 2009) (citations and internal quotations omitted).
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Courts generously grant Rule 56(d) motions, “unless the non-moving party has not diligently
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pursued discovery of the evidence.” Burlington N. Santa Fe R. Co. v. Assiniboine & Sioux Tribes
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of Fort Peck Reservation, 323 F.3d 767, 773-74 (9th Cir. 2003) (citations omitted).
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III.
DISCUSSION
Rearden has met its burden under Rule 56(d). Rearden has notified the Court via
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declaration of specific facts it hopes to elicit from further discovery such as “the terms of a
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contract, either between DD3 and one or the other defendants, or between DD3 and a third party
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that was authorized to capture Ms. Luddington’s performance as Lara Croft by defendants.” ECF
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No. 72 ¶ 9. Rearden seeks to discover “to what extent, if any, defendants participated directly or
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indirectly in the summer 2014 Contour capture of Ms. Luddington as Lara Croft.” Id. ¶ 11.
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Rearden “expects that defendants and/or an authorized third party will know for what purpose the
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Contour output from the summer 2014 capture was used, whether to animate CG characters that
appeared in the Rise of the Tomb Raider game itself, or in a trailer or other video used to promote
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United States District Court
Northern District of California
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the game.” Id. ¶ 13.
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Rearden’s counsel explains to the Court that these facts are essential to preclude summary
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judgment because the Defendants’ declarations address only the images used in the Rise of the
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Tomb Raider game itself, and not other potential uses for the 2014 Contour captures, such as
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trailers or promotional videos. Id. ¶ 15. As Rearden notes in its opposition to Defendants’
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summary judgment motion, “only two of defendants’ . . . declarations . . . mention the summer 2014
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Contour capture. And although some of the declarants state that defendants did not use Contour output
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in the game, none explain why defendants authorized the summer 2014 Contour captures in the first
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place, and what they did with that Contour output.” ECF No. 70 at 12-13. While Defendants contend
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that they did not contract with DD3 for the summer 2014 Contour session, they do not dispute that
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the session took place. Thus, there is a basis for believing that the information Rearden seeks
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about this summer 2014 session actually exists.
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Finally, Rearden has not had a reasonable opportunity to conduct this discovery. This
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action was filed on July 24, 2017. Defendants filed a motion to dismiss on September 15, 2017.
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ECF No. 20. The Court granted the motion in part and denied the motion in part on March 6,
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2018. ECF No. 48. At the March 7, 2018 case management conference, Rearden agreed to stay
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discovery until July 11, 2018, after the Court rules on the motion to dismiss the amended
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complaint. ECF No. 74 ¶ 8. Accordingly, Plaintiff’s request for relief under Rule 56(d) is
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granted.
CONCLUSION
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For the foregoing reasons, the motion for summary judgment is DENIED without
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prejudice. Defendants may file an amended motion for summary judgment after the close of
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discovery.
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IT IS SO ORDERED.
Dated: June 18, 2018
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JON S. TIGAR
United States District Judge
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United States District Court
Northern District of California
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