Tom Hussey Photography LLC v. Family Matters In-Home Care LLC

Filing 48

ORDER GRANTING MOTION TO DISMISS THIRD-PARTY COMPLAINT WITHOUT PREJUDICE by Judge Yvonne Gonzalez Rogers; granting 39 Motion to Dismiss. Amended Pleadings due by 6/25/2021. * The motion hearing set for 6/8/2021 is VACATED.*(fs, COURT STAFF) (Filed on 6/4/2021)

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1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF CALIFORNIA 3 4 5 TOM HUSSEY PHOTOGRAPHY LLC AND TOM HUSSEY, 6 7 8 Plaintiffs, Case No. 4:20-CV-8197-YGR ORDER GRANTING MOTION TO DISMISS THIRD-PARTY COMPLAINT WITHOUT PREJUDICE vs. Re: Dkt. No. 39 FAMILY MATTERS IN-HOME CARE LLC, 9 Defendant. 10 11 FAMILY MATTERS IN-HOME CARE LLC, Northern District of California United States District Court 12 Third-Party Plaintiff, 13 VS. 14 15 JAMES BOWEN AND RIPEN DIGITAL LLC, Third-Party Defendants. 16 17 On November 20, 2020, plaintiffs Tom Hussey Photograph LLC and Tom Hussey filed this 18 action asserting claims of copyright infringement and infringement of the right to publicity against 19 defendant Family Matters In-Home Care LLC. (Dkt. No. 1) On February 16, 2021, defendant filed 20 an amended answer to the complaint as well a third-party complaint against third-party defendants 21 James Bowen and Ripen Digital LLC. (Dkt. Nos. 27, 28.) Despite the causes of action therein being 22 styled as cross-claims and/or a counterclaim, the Court understands the third-party complaint to be 23 seeking contribution, indemnity, and declaratory relief from the third-party defendants. 24 Third-party defendants are now “mov[ing] to dismiss any and all third-party claims raised 25 against them in the [t]hird-[p]arty [c]omplaint on the grounds [that] there exists no right to 26 contribution or indemnity under federal copyright law or [p]laintiff’s Mr. Tom Hussey’s preempted 27 right to publicity.” (Dkt. No. 39.) In response, defendant/third-party plaintiff “concedes that it cannot 28 seek indemnity or contribution from the [t]hird-[p]arty [d]efendant and that dismissal of the [t]hird- 1 [p]arty [c]omplaint may be considered. In the alternative, however, [t]hird [p]arty [p]laintiff seeks 2 leave of this [C]ourt to amend the complaint in the interests of justice and judicial economy to state 3 the applicable causes of action for breach of contract.” (Dkt. No. 44.) Plaintiff also filed a response, 4 opposing the motion to the extent the third-party defendants were seeking dismissal of the complaint’s 5 second and third claims in light of the motion suggesting as much. (Dkt. No. 45.) 6 In light of the foregoing, the Court GRANTS the motion to dismiss the third-party complaint 7 WITH LEAVE TO AMEND. To the extent that third-party defendants seek dismissal of claims in the 8 complaint by plaintiff against defendant, the motion is DENIED. Defendant shall have twenty-one 9 (21) days from the date of this order to file an amended third-party complaint. Third-party defendants 10 shall have twenty-one (21) days to respond after filing. Northern District of California IT IS SO ORDERED. 12 United States District Court 11 This Order terminates Docket Number 39. 13 14 Dated: June 4, 2021 ____________________________________ YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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