Righthaven LLC v. Kelleher

Filing 36

ORDER DISMISSING CASE with Prejudice. Clerk shall enter judgment for Defendant and against Plaintiff. Signed by Judge Kent J. Dawson on 1/13/12. (Copies have been distributed pursuant to the NEF - ASB)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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RIGHTHAVEN LLC,

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Plaintiff,

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v.

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Case No. 2:10-CV-01184-KJD-RJJ

KEVIN KELLEHER,

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ORDER

Defendant.

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Presently before the Court is Plaintiff’s Response (#29) to the Court’s Order to Show Cause
(#28). Defendant filed a reply (#33) to Plaintiff’s Response.
On November 2, 2011, the Court ordered Plaintiff to show cause why its complaint should

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not be dismissed for lack of subject matter jurisdiction. In this action, “as in all actions before

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federal court, the necessary and constitutional predicate for any decision is a determination that the

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court has jurisdiction- that is the power- to adjudicate the dispute.” Toumajian v. Frailey, 135 F.3d

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648, 652 (9th Cir. 1998). The purpose of a complaint is two-fold: to give the defendant fair notice of

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the basis for the court’s jurisdiction and of the factual basis of the claim. See Fed. R. Civ. P. 8; Skaff

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v. Meridien North Am. Beverly Hills, LLC, 506 F.3d 832, 843 (9th Cir. 2007). Rule 12(b)(1) of the

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Federal Rules of Civil Procedure allows defendants to seek dismissal of a claim or action for a lack

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of subject matter jurisdiction. Dismissal under Rule 12(b)(1) is appropriate if the complaint,

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considered in its entirety, fails to allege facts on its face that are sufficient to establish subject matter

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jurisdiction. In re Dynamic Random Access Memory (DRAM) Antitrust Litigation, 546 F.3d 981,

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984-85 (9th Cir. 2008). Although the defendant, or in this case the Court, is the moving party in a

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motion to dismiss brought under Rule 12(b)(1), the plaintiff is the party invoking the court’s

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jurisdiction. As a result, the plaintiff bears the burden of proving that the case is properly in federal

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court. McCauley v. Ford Motor Co., 264 F.3d 952, 957 (9th Cir. 2001) (citing McNutt v. General

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Motors Acceptance Corp., 298 U.S. 178, 189 (1936)).

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The plaintiff must be the “legal or beneficial owner of an exclusive right under a copyright.”

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See Silvers v. Sony Pictures Entm’t, Inc., 402 F.3d 881, 884 (9th Cir. 2005). If the plaintiff “is not a

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proper owner of the copyright rights, then it cannot invoke copyright protection stemming from the

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exclusive rights belonging to the owner, including infringement of the copyright.” Id. (quoting 4

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Business and Commercial Litigation in Federal Courts, at 1062 § 65.3(a)(4) (Robert Haig ed.)).

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A certificate of registration will raise the presumption of valid copyright ownership. See 17

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U.S.C. § 410(c); Micro Star v. Formgen Inc., 154 F.3d 1107, 1109-10 (9th Cir. 1998). Plaintiff has

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submitted a certificate of registration that raises a presumption of valid copyright ownership.

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However, “the presumptive validity of the certificate may be rebutted and defeated[.]” S.O.S., Inc. v.

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Payday, Inc., 886 F.2d 1081, 1086 (9th Cir. 1989)(citing Seiler v. Lucasfilm, Ltd., 808 F.2d 1316,

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1322 (9th Cir. 1986). The Copyright Act requires transfers of copyrights to be in writing and to be

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clear. See 17 U.S.C. § 204(a)(“[a] transfer of copyright ownership...is not valid unless [it]...is in

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writing...and signed[.]”); Konigsberg Int’l, Inc. v. Rice, 16 F.3d 355, 357 (9th Cir. 1994)(writing

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requirement protects authors from fraudulent claims and “enhances predictability and certainty of

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ownership-‘Congress’s paramount goal’ when it revised the Act in 1976”)(internal citations omitted).

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Buried in a footnote of Plaintiff’s response to the Court’s order to show cause is Plaintiff’s

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admission that sixteen (16) months after filing the Complaint (#1) in this action and after conducting

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little to no discovery, it has still not located the written assignment covering the work at issue in the

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Complaint. Having effectively challenged Plaintiff’s standing to bring this action, Defendant has
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rebutted the presumption that a written assignment of the copyright exists in this action.

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Furthermore, the Court gave Plaintiff a week to respond to Defendant’s reply to Plaintiff’s response

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to the order to show cause, but despite being given till November 28, 2011 to provide the written

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assignment, Plaintiff failed to respond at all to Defendant’s arguments. Finally, an additional six

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weeks have passed since the deadline and Plaintiff has failed to request permission to supplement its

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arguments. Now, a year and a half after Plaintiff filed its complaint, and with trial set to begin on

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January 23, 2012, Plaintiff has failed to produce a written assignment of the copyright at issue in this

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action. Accordingly, since no written assignment of the copyright exists, the Court finds on the

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merits of the case that Plaintiff has failed to meet its burden in establishing subject matter

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jurisdiction.
Accordingly, IT IS HEREBY ORDERED that Plaintiff’s complaint is DISMISSED with
prejudice for lack of subject matter jurisdiction;
IT IS FURTHER ORDERED that the Clerk of the Court enter JUDGMENT for Defendant
and against Plaintiff.
DATED this 13TH day of January 2012.

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_____________________________
Kent J. Dawson
United States District Judge

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