Sen v. Amazon.com, Inc. et al

Filing 64

ORDER granting 32 Defendant Amazon.com, Inc's Motion for Summary Judgment and denying 42 Defendant's in limine motion as moot. Signed by Judge John A. Houston on 9/27/2018. (All non-registered users served via U.S. Mail Service)(jpp)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10

SOUTHERN DISTRICT OF CALIFORNIA

11
12

Case No.: 3:16-CV-01486-JAH-JLB

AYSE SEN,
Plaintiff,

13
14

v.

15

ORDER GRANTING DEFENDANT
AMAZON.COM, INC.’S MOTION
FOR SUMMARY JUDGMENT AND
DENYING DEFENDANT’S IN
LIMINE MOTION AS MOOT

AMAZON.COM, INC.,
Defendant.

16
17
18

INTRODUCTION

19

Pending before the Court is Defendant Amazon.com, Inc.’s (“Defendant” or

20

“Amazon”) Motion for Summary Judgment pursuant to Rule 56 of the Federal Rules of

21

Civil Procedure. [Doc. No. 32]. Ayse Sen’s (“Plaintiff”) complaint alleges trademark

22

infringement in violation of 15 U.S.C § 1114(1)(a), unfair competition, false designation

23

of origin, passing off, and false advertising in violation of 15 U.S.C §1125(a), and tortious

24

interference with business relations or an economic advantage. Id. After a careful review

25

of the pleadings filed by both parties, and for the reasons set forth below, Defendant’s

26

Motion for Summary Judgment is GRANTED.

27

\\

28

\\
1
3:16-CV-01486-JAH-JLB

1

BACKGROUND

2

I.

Factual Background

3

Plaintiff is the owner of the trademark “Baiden,” and uses the mark in association

4

with the marketing and selling of her “Baiden” skin-exfoliation products. See Doc. No. 1,

5

¶ 21. Defendant owns and operates Amazon.com which is a prominent e-marketplace. Id.

6

at ¶ 6. Plaintiff uses Amazon’s platform to sell her products. Id. at ¶ 11. Defendant

7

purchases certain keywords for use in sponsored advertising, and as relevant to this case,

8

purchased the keyword “Baiden” through Google’s AdWords1 program and on similar

9

programs offered by “Bing.com” and “Yahoo.com.” See Doc. No. 32–2, ¶ 2.

10

On December 4, 2012, Plaintiff initiated a lawsuit in this district against Defendant

11

alleging violations of the Lanham Act for trademark infringement and unfair competition

12

(“Initial Action”). See Doc. No. 32-2, Ex A (Case No. 12-cv-2878-AJB-BGS). In the initial

13

action, Plaintiff alleged that Defendant used her “Baiden” mark in online pay-per-click

14

campaigns and keyword advertising on various search engines without Plaintiff’s express

15

authorization. Id. The complaint alleged that the campaigns diverted online traffic to a

16

landing page on Amazon’s website displaying competitor products which reduced her

17

online traffic and decreased sales for her products. Id. On July 9, 2013 the Plaintiff and

18

Defendant reached a settlement agreement in the initial action and executed a Settlement

19

Memorandum of Understanding (“MOU”). Doc. No. 32–2, Ex C. The parties were unable

20

to agree to the terms of the long form agreement and on October 9, 2013, Defendant moved

21

to enforce the MOU. See Doc. No. 32–2, Ex D. On December 19, 2013, the Honorable

22
23

24

1

25
26
27
28

“Google AdWords is a program through which the search engine sells ‘keywords,’ or search terms that
trigger the display of a sponsor's advertisement. When a user enters a keyword, Google displays the links
generated by its own algorithm in the main part of the page, along with the advertisements in a separate
‘sponsored links’ section next to or above the objective results. Multiple advertisers can purchase the same
keyword, and Google charges sponsors based on the number of times users click on an ad to travel from
the search results page to the advertiser's own website. Network purchased ‘ActiveBatch’ as a keyword
from Google AdWords and a comparable program offered by Microsoft's Bing search engine.” Network
Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1142–43 (9th Cir. 2011)

2
3:16-CV-01486-JAH-JLB

1

Anthony J. Battaglia granted Amazon’s motion to enforce the settlement on the terms set

2

forth in the MOU. Id.

3

II.

4

On June 15, 2016, Plaintiff initiated the instant action, again alleging claims for

5

federal trademark infringement in violation of 15 U.S.C. § 114 and federal unfair

6

competition, false designation of origin, passing off and false advertising. Doc. No. 1, ¶¶

7

26–33. Additionally, Plaintiff brings a third claim for tortious interference with Plaintiff’s

8

prospective and actual business relations, and interference with an economic advantage.

9

Id. at ¶¶ 34–35. Defendant filed an Answer to the Complaint alleging twenty-four

10

affirmative defenses, including Release of Claims, Estoppel, and Waiver of Right to Assert

11

Claims. See Doc. No. 5. On November 8, 2016, Defendant filed an amended answer

12

asserting immunity under the Communications Decency Act of 1996 as an additional

13

affirmative defense. See Doc. No. 27. On March 8, 2017, Defendant filed the Motion for

14

Summary Judgment now before the Court. See Doc. No. 39. A hearing was held on May

15

9, 2017 for purposes of oral argument on Defendant’s motion. See Doc. No. 45. However,

16

the matter was taken under submission by the Court without oral argument when Plaintiff

17

failed to appear for that hearing. Id.

18

Procedural Background

LEGAL STANDARD

19

Summary judgment is properly granted when “there is no genuine issue as to any

20

material fact and . . . the moving party is entitled to judgment as a matter of law.”

21

Fed.R.Civ.P. 56(c). Entry of summary judgment is appropriate “against a party who fails

22

to make a showing sufficient to establish the existence of an element essential to that

23

party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp.

24

v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the

25

initial burden of establishing an absence of a genuine issue of material fact. Id. at 323. A

26

material fact is one that is relevant to an element of a claim or defense and the existence of

27

which might affect the outcome of the suit. T.W. Electrical Service, Inc. v. Pacific

28

Electrical Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Anderson v. Liberty
3
3:16-CV-01486-JAH-JLB

1

Lobby, Inc., 477 U.S. 242, 248 (1986)). The materiality of a fact is thus determined by the

2

substantive law governing the claim or defense. Id. Once the moving party meets the

3

requirements of Rule 56, the burden shifts to the party resisting the motion. Anderson, 477

4

U.S. at 256.

5

To demonstrate a genuine issue, the opposing party “must do more than simply show

6

that there is some metaphysical doubt as to the material facts. . . . [T]he nonmoving party

7

must come forward with specific facts showing that there is a genuine issue for trial.”

8

Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). In

9

deciding a motion for summary judgment, “[t]he evidence of the non-movant is to be

10

believed, and all justifiable inferences are to be drawn in his favor.” Anderson, 477 U.S. at

11

255. Nevertheless, inferences must be made upon a reasonable basis, and it is the opposing

12

party’s obligation to produce a factual predicate from which the inference may be drawn.

13

See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff’d,

14

810 F.2d 898, 902 (9th Cir. 1987).

15

DISCUSSION

16

As an initial matter, Defendant requests the Court take judicial notice of certain facts

17

concerning the initial action between the parties. See Doc. No 32–2. Specifically,

18

Defendant requests the Court take judicial notice that Plaintiff filed a lawsuit against

19

Defendant on December 4, 2012, that the parties entered into a MOU on July 9, 2013, and

20

that the court granted Defendant’s motion to enforce the settlement on December 19, 2013.

21

Id., Exhibits A, C, D. The Court may take judicial notice of an adjudicative fact “not subject

22

to reasonable dispute because it can be . . . accurately and readily determined from sources

23

whose accuracy cannot be reasonably questioned.” See Fed. R. Evid. 201; Grason Elec.

24

Co. v. Sacramento Mun. Util. Dist., 571 F. Supp. 1504, 1521 (E.D. Cal. 1983). Moreover,

25

the Ninth Circuit has confirmed that “a court may take judicial notice of its own records.”

26

U.S. v. Author Svcs., Inc., 804 F.2d 1520, 1522 (9th Cir.1986). Accordingly, Defendant’s

27

request for judicial notice is GRANTED.

28

\\
4
3:16-CV-01486-JAH-JLB

1

I.

Lanham Act Claims

2

As stated above, Plaintiff alleges two “Lanham Act” claims for federal trademark

3

infringement in violation of 15 U.S.C. § 1114 and federal unfair competition, false

4

designation of origin, passing off, and false advertising in violation of 15 U.S.C. § 1125(a).

5

Doc. No. 1, ¶¶ 26–33. Plaintiff alleges that her Lanham Act claims arise from two separate

6

and distinct wrongful acts perpetrated by Defendant: (1) the unauthorized use of Plaintiff’s

7

“Baiden” trademark in “online pay-per-click” campaigns; and (2) permitting the use of

8

Plaintiff’s trademark in an online review, which promoted and advertised a competing

9

product. See Doc. No. 1, ¶¶ 8–9. The Court will address each in turn below.

10

a. Use of Plaintiff’s trademark in online pay-per-click campaigns

11

Notwithstanding Defendants arguments that Plaintiff’s claims were released in the

12

prior action, the Court finds that Plaintiff’s claims concerning the use of Plaintiff’s

13

trademark in pay-per-click campaigns are barred by the doctrine of claim preclusion. The

14

United States Supreme Court has observed that a federal district court may sua sponte raise

15

the issue of claim or issue preclusion under certain circumstances. “Most notably, if a court

16

is on notice that it has previously decided the [claims] presented, the court may dismiss the

17

action sua sponte, even though the defense has not been raised. This result is fully

18

consistent with the policies underlying res judicata: it is not based solely on the defendant’s

19

interest in avoiding the burdens of twice defending a suit, but is also based on the avoidance

20

of unnecessary judicial waste.” Arizona v. California, 530 U.S. 392, 412 (2000). Under

21

federal law, claim preclusion bars “lawsuits on ‘any claims that were raised or could have

22

been raised’ in a prior action.” Stewart v. U.S. Bancorp, 297 F.3d 953, 956 (9th Cir.2002)

23

(quoting Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir.2001)).

24

Claim preclusion is appropriate when the following three elements are satisfied: (1) an

25

identity of the claims, (2) the previous action must have resulted in a final judgment on the

26

merits, and (3) the present action must involve the same parties or persons in privity of

27

interest. Providence Health Plan v. McDowell, 385 F.3d 1168, 1173-1174 (9th Cir.2004).

28
5
3:16-CV-01486-JAH-JLB

1

Identity of claims is determined by considering the following factors: (1) whether

2

the two suits arise out of the same transactional nucleus of facts; (2) whether rights or

3

interests established in the prior judgment would be destroyed or impaired by prosecution

4

of the second action; (3) whether the two suits involve infringement of the same right; and

5

(4) whether substantially the same evidence is presented in the two actions. Mpoyo v.

6

Litton Electro–Optical Systems, 430 F.3d 985, 987 (9th Cir.2005). The “central criterion,”

7

however, in determining whether there is an identity of claims between the first and second

8

adjudications is whether the two suits arise out of the same nucleus of transactional facts.

9

Id. at 987, citing Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.1992). Here, it is

10

clear that the claims in the initial action and Plaintiff’s Lanham Act claims in the present

11

action, so far as they concern Defendant’s pay-per-click campaigns, arise out of the same

12

transactional nucleus of facts. The Court notes that all relevant portions of Plaintiff’s

13

complaint concerning Defendant’s use of pay-per-click campaigns are copied verbatim

14

from the complaint in the initial action. See Doc. Nos. 1, 1–2; cf. Doc. No. 32–2, Exhibit

15

A. Additionally, Plaintiff submitted screenshots of search engine results and of Amazon’s

16

landing page that are substantially identical to ones filed in the initial action. Id. Plaintiff

17

fails to distinguish–either factually or temporally–her current trademark infringement

18

claim based on Defendant’s pay-per-click campaign from that which she alleged in the

19

initial action. As such, the Court finds the first factor is satisfied.

20

There can be little dispute regarding the second and third factors. First, the initial

21

action included the identical parties to this case, Ayse Sen and Amazon.com, Inc. See Doc.

22

No. 32–2, Ex. A. Also, the initial action resulted in a final judgment on the merits. The

23

dismissal of an action with prejudice pursuant to a settlement agreement “constitutes a final

24

judgment on the merits.” Int'l Union of Operating Engineers-Employers Const. Indus.

25

Pension, Welfare & Training Tr. Funds v. Karr, 994 F.2d 1426, 1429 (9th Cir. 1993) (citing

26

Lawrence v. Steinford Holding B.V., 820 F.2d 313, 316–17 (9th Cir.1987)); see also

27

Lawlor v. National Screen Service Corp., 349 U.S. 322 (1955)). On December 19, 2013,

28

the initial action was dismissed with prejudice when the Honorable Anthony J. Battaglia
6
3:16-CV-01486-JAH-JLB

1

granted Amazon’s motion to enforce the settlement on the terms set forth in the MOU. See

2

Doc. No. 32–2, Ex D. Because the Court finds that all three factors support claim

3

preclusion, Plaintiff’s Lanham Act claims based on the unauthorized use of Plaintiff’s

4

“Baiden” trademark in “online pay-per-click” campaigns are precluded, and Defendant is

5

entitled to summary judgment on these claims.
b. Use of Plaintiff’s trademark in an online review2

6
7

Plaintiff alleges that Defendant is contributory and vicariously liable for trademark

8

infringement stemming from a review of Plaintiff’s product posted on Defendant’s website.

9

Doc. No. 1, ¶ 23. In a review of Plaintiff’s “Baiden Mitten” product, an Amazon user

10

utilizing the name “Nanners,” wrote that she initially purchased the “Baiden Mitten”

11

product which caused her to recall a similar product from her childhood. Doc. No. 1-2, Ex.

12

B. The review uses the “Baiden” name in discussing Plaintiff’s product, as well as

13

declaring that a competing product is cheaper and delivers similar benefits. Id. Plaintiff

14

alleges that “Nanner’s” review infringed her trademark, which has interrupted Plaintiff’s

15

ongoing business and damaged her reputation. Doc. No. 1, ¶ 12-15. By allowing the review

16

to remain displayed under her product, Plaintiff alleges Amazon is contributory and

17

vicariously liable for the resulting harms. Id. at ¶ 33.

18

Defendant argues that Plaintiff’s Lanham Act claims, predicated on “Nanner’s”

19

review of her product, are barred by the nominative fair use doctrine. See Doc. No. 32 – 1,

20

pg. 25. A nominative fair use defense is appropriate when a “defendant has used [a]

21

plaintiff’s mark ‘to describe the plaintiff’s product’ for the purpose of, for example,

22

comparison to the defendant’s product.” Id. (emphasis in original) (quoting New Kids on

23

the Block v. News Am. Pub., Inc., 971 F.2d 302, 308 (9th Cir. 1992)). To establish a

24

nominative fair use defense, the defendant must prove three elements: (1) the [plaintiff’s]

25
26

27

2

28

Plaintiff’s Lanham Act claim, as supported by the online review, is not subject to claim preclusion
because it was not presented in the initial claim and arises out of a facts which were not known to Plaintiff
at the time of the initial action.

7
3:16-CV-01486-JAH-JLB

1

product or service in question must be one not readily identifiable without use of the

2

trademark; (2) only so much of the mark or marks may be used as is reasonably necessary

3

to identify the [plaintiff's] product or service; and (3) the user must do nothing that would,

4

in conjunction with the mark, suggest sponsorship or endorsement by the trademark holder.

5

New Kids on the Block v. News Am. Publ'g, Inc., 971 F.3d 302, 308 (9th Cir. 1992) ).

6

Defendant contends that “Nanner’s” review satisfies the three pronged New Kids on

7

the Block test. First, Defendant argues that Plaintiff’s trademark and product are essentially

8

inseparable, because one cannot identify Plaintiff’s product without using its name, the

9

“Baiden Mitten.” The Ninth Circuit has explained that the use of a trademark to identify a

10

certain product satisfies the first prong of the nominative fair use test particularly in

11

situations “where the [trademark is the] only word reasonably available to describe [that]

12

particular thing.” Id. at 308. That is certainly the case here. “Nanner’s” review uses the

13

Plaintiff’s trademark only to alert her readers as to what fabric exfoliation product she is

14

currently discussing. Also met are the second and third requirements. “Nanner’s” review

15

references Plaintiff’s trademark only to the extent necessary to identify the product she is

16

reviewing. And “Nanner’s” does not use the distinctive logo of Plaintiff’s trademark or any

17

other identifying feature. Finally, nothing in “Nanner’s” review suggests joint sponsorship

18

or endorsement by Plaintiff or the “Baiden Mitten” brand. Quite the contrary as the review

19

actually implies that there are “monumentally cheaper” products available on the market.

20

The Court therefore holds that “Nanner’s” use of Plaintiff’s “Baiden” trademark in her

21

review, and by extension Defendant’s publishing of such a review, was a permissible

22

nominative fair use. Accordingly, the Court GRANTS Defendant’s motion for summary

23

judgment as to Plaintiff’s Lanham Act claims.3

24

\\

25

\\

26
27
28

3

Finding summary judgment appropriate on these grounds, the Court will not discuss Defendant’s
remaining arguments.

8
3:16-CV-01486-JAH-JLB

1

II.

2

Plaintiff’s third cause of action is for tortious interference with Plaintiff’s

3

prospective and actual business relations, and interference with an economic advantage.

4

See Doc. No. 1, ¶¶ 34–35. Such a claim requires a showing of: “(1) an economic

5

relationship between the plaintiff and some third party, with the probability of future

6

economic benefit to the plaintiff; (2) the defendant's knowledge of the relationship; (3)

7

intentional acts on the part of the defendant designed to disrupt the relationship; (4) actual

8

disruption of the relationship; and (5) economic harm to the plaintiff proximately caused

9

by the acts of the defendant.” Korea Supply Co. v. Lockheed Martin Corp., 29 Cal. 4th

10

1134, 1153, 63 P.3d 937 (2003). Accordingly, the Plaintiff must establish that the

11

“defendant not only knowingly interfered with the plaintiff’s expectancy, but engaged in

12

conduct that was wrongful by some legal measure other than the fact of interference itself.”

13

Hsu v. OZ Optics, Ltd., 211 F.R.D. 615, 620 (N.D.Cal.2002) (citing Della Penna v. Toyota

14

Motor Sales, U.S.A., Inc., 11 Cal.4th 376, 393, 45 Cal.Rptr.2d 436, 902 P.2d 740 (1995)).

15

Stated differently, “[i]t is ... the plaintiff's burden to prove, as an element of the cause of

16

action itself, that the defendant's conduct was independently wrongful.” Hsu, 211 F.R.D.

17

at 620. Plaintiff has alleged that her business has “experienced [an] interruption of its

18

ongoing business activities . . . and has suffered irreparable damage to its business

19

reputation and good will” as a result of Defendant’s pay-per click campaigns and “allowing

20

advertising under her listing to a competitive product.” Id. Defendant argues that Plaintiff’s

21

tortious interference claim fails as a matter of law because none of Defendant’s alleged

22

conduct was independently wrongful, and as predicated on “Nanner’s” review, Amazon is

23

immune from liability under the Communications Decency Act (“CDA”). See Doc. No.

24

32–1, pgs. 27–31.

25
26

Tortious Interference

a. Tortious interference claim based on Defendant’s pay-pay-click
campaigns

27

As discussed in length above, to the extent that Plaintiff’s tortious interference claim

28

is based on Defendant’s use of her trademark in any pay-per-click campaigns, it is
9
3:16-CV-01486-JAH-JLB

1

precluded. Plaintiff relies on identical allegations to assert both Lanham Act claims and

2

her tortious interference claim, therefore, the Court finds that these two claims share a

3

transactional nucleus of facts and could have been conveniently tried together in the initial

4

action. Mpoyo v. Litton Electro–Optical Sys., 430 F.3d 985, 987 (9th Cir.2005). As such,

5

Plaintiff’s tortious interference claim, as it pertains to Defendant’s pay-per-click

6

advertising is precluded.

7

b. Tortious interference claim based on “Nanner’s” review4

8

Defendant next contends that Plaintiff’s tortious interference claim, as predicated on

9

“Nanner’s” review, fails as a matter of law because Defendant is immune from liability

10

under the CDA. This Court agrees. Section 230 of the CDA immunizes providers of

11

interactive computer services against liability arising from content created by third parties:

12

“No provider . . . of an interactive computer service shall be treated as the publisher or

13

speaker of any information provided by another information content provider.” 47 U.S.C.

14

§ 230(c). “Three elements are required for § 230 immunity: (1) the defendant must be a

15

provider or user of an “interactive computer service”; (2) the asserted claims must treat the

16

defendant as a publisher or speaker of information; and (3) the challenged communication

17

must be “information provided by another information content provider.” Batzel v. Smith,

18

333 F.3d 1018, 1037 (9th Cir. 2003) (quoting 47 U.S.C. § 230(c)(1)).

19

First, the Court finds the rationale of numerous other courts persuasive, and agrees

20

that Defendant is undoubtedly a provider of “interactive computer services.”5 See e.g.,

21

Joseph v. Amazon.com, Inc., 46 F. Supp. 3d 1095, 1106 (W.D. Wash. 2014) (“Amazon

22
23
24
25
26
27
28

4

Again, Plaintiff’s claims concerning “Nanner’s” review are not precluded by the initial action. Plaintiff
alleges that she did not become aware of this review until September of 2013, which was several months
after she signed the binding MOU. See Doc. No. 1, ¶ 11. Because this claim, based on “Nanner’s” review,
could not have been brought in the initial action, claim preclusion is inapplicable. See Vacchiano v.
Wessell, No. CV122003DSFVBKX, 2013 WL 12155181, at *1 (C.D. Cal. Nov. 25, 2013).
5
The term ‘interactive computer service’ means any information service, system, or access software
provider that provides or enables computer access by multiple users to a computer server, including
specifically a service or system that provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.” 47 U.S.C. § 230(f)(2).

10
3:16-CV-01486-JAH-JLB

1

constitutes an ‘interactive service provider’. . . .”); Schneider v. Amazon, 108 Wash.App.

2

454, 463, (Wash.2001) (finding Amazon to be an interactive service provider and entitled

3

to immunity from claims based on defamatory reviews by third parties); Almeida v.

4

Amazon.Com, Inc., No. 04-20004-CIV, 2004 WL 4910036, at *4 (S.D. Fla. July 30, 2004),

5

aff'd, 456 F.3d 1316 (11th Cir. 2006) (“It is irrefutable that Defendant Amazon is an

6

“interactive computer service.”). Additionally, Defendant has established the second and

7

third elements required for CDA immunity. Plaintiff’s allegation concern a review posted

8

by an Amazon user, “Nanner,” who acted as an independent content provider when she

9

posted her review of Plaintiff’s “Baiden Mitten” product. Plaintiff wishes to hold

10

Defendant liable for failing to remove a review–published by an independent third-party

11

user–which she alleges has infringed her trademark. This is the precisely the type of claim

12

Congress sought to shield “interactive computer services” from with the passage of the

13

CDA. “In passing section 230, Congress sought to spare interactive computer services this

14

grim choice by allowing them to perform some editing on user-generated content without

15

thereby becoming liable for all defamatory or otherwise unlawful messages that they didn’t

16

edit or delete.” Fair Hous. Council of San Fernando Valley v. Roommates.Com, LLC, 521

17

F.3d 1157, 1163 (9th Cir. 2008). Accordingly, the Court finds that Plaintiff has failed to

18

show that a genuine issue of material fact exists sufficient to defeat Defendant’s motion for

19

summary judgment on her tortious interference claim. Accordingly, Defendant is entitled

20

to summary judgment in its favor.

21

\\

22

\\

23

\\

24

\\

25

\\

26

\\

27

\\

28

\\
11
3:16-CV-01486-JAH-JLB

1
2

CONCLUSION

3

Based on the foregoing, IT IS HEREBY ORDERED that:

4

1. Defendant’s Motion for Summary Judgment [Doc. No. 32] is
GRANTED in its entirety6;

5
6

2. Defendant’s In Limine Motion to Exclude Expert Testimony [Doc. No.

7

42] is DENIED as moot;

8

3. The Clerk of Court shall enter judgment in favor of Defendant and

9

against Plaintiff.

10

IT IS SO ORDERED.

11

DATED: September 27, 2018

12

_________________________________
JOHN A. HOUSTON
United States District Judge

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

6

Plaintiff briefly mentions in her complaint that her claims arise under the Copyright Act of 1976, 17
U.S.C. § 101, yet in her opposition to Defendant’s motion, she admits she does not own a copyright. See
Doc. No. 40, pg. 8. However, she asserts she is still entitled to relief pursuant to California law. Plaintiff
is mistaken; relief for copyright infringement is a federal matter, which is only available to owners of a
valid copyright. 17 U.S.C. § 411(a) (2018); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361
(1991). To the extent that Plaintiff has alleged a claim of copyright infringement, her admission that she
does not own a valid copyright, entitles Defendant to summary judgment on that claim.

12
3:16-CV-01486-JAH-JLB