Barnett v. Ubimodo Inc. et al

Filing 71

ORDER: Bedivere's Amended Motion for Summary Judgment 49 is granted. Signed on 1/9/2019 by Judge Michael J. McShane. (cp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

KELLY A.BARNETT,
Plaintiff,

Civ. No. 6:18-cv-418-MC

ORDER

V.

UBIMODO, INC., et al,

Defendants.

MCSHANE, Judge:
Defendant Bedivere Insurance Company ("Bedivere") moves for summary judgment
pursuant to Fed. R. Civ. P. 56. Def.'s Am. Mot., ECF No. 49. Plaintiff Kelly A. Barnett,
proceeding prose, alleges copyright infringement against several Defendants, including
Bedivere. Pl.'s Second Am. Compl. ~8, ECF No. 41 ("Pl.'s SAC"). Bedivere argues that it has
a limited connection to Defendant Ubimodo, Inc., no connection to Plaintiff, and cannot be
accused of contributory or vicarious copyright infringement. Def' s Am. Mot. 4-14.
Because Plaintiff does not raise a genuine dispute of material fact with respect to
Bedivere, this Court GRANTS Defendant's Amended Motion for Summary Judgment.

BACKGROUND
In February 2017, Dean Carberry, a reinsurance broker at Atlantic Security Reinsurance
Brokers Ltd., gave Bedivere a Private Placement Offering Memorandum ("Memorandum") and
Scott Warner, Ubimodo's Chief Executive Officer, gave Bedivere a "due diligence package"
about Ubimodo. Def.'s Am. Mot. 5; Schleider Deel., ECF No. 47, ,r 4. In June 2017, Bedivere
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invested $1.5 million in Ubimodo. Def.'s Am. Mot. 5; Schleider Deel., ,r 5. In fall 2017, Plaintiff
called Marcus Doran, Bedivere's Chief Operating Officer. Pl.'s SAC 38; Def.'s Am. Mot. 6;
Doran Deel., ECF No. 57, ,r 3. Plaintiff asked Doran if her intellectual property played a role in
Bedivere's investment in Ubimodo. Pl.'s SAC 38; Doran Deel., ,r 5. Plaintiff states that she
requested and Doran agreed to initiate an investigation. Pl.'s SAC 39; Pl.'s Resp. 9. Doran states
that he told Plaintiff he would "look into the matter" but did not mean that he would open a
formal investigation. Doran Deel.,

,r 3. There does not appear to have been any other contact

between Plaintiff and Bedivere.
Plaintiff initiated the present action on March 9, 2018 and filed an Amended Complaint
on April 27, 2018, alleging copyright infringement, among other things. ECF Nos. 1 and 14. This
Court dismissed all of Plaintiffs claims with prejudice except her copyright infringement claim,
which was dismissed without prejudice. Op. and Order, ECF No. 40. Plaintiff filed a SAC on
September 21, 2018, again alleging copyright infringement. Pl.' s SAC 4, ECF No. 41. 1 Bedivere
filed a Motion for Summary Judgment and Amended Motion for Summary Judgment on October
15, 2018. ECF Nos. 46 and 49.
STANDARD OF REVIEW

This Court must grant summary judgment "if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." Fed. R.
Civ. P. 56(a). An issue is "genuine" if a reasonable jury could find in favor of the non-moving

1

After Plaintiff filed a SAC, she filed a Motion for Leave to File an Amended Complaint and attached a Proposed
Third Amended Complaint ("TAC"). See ECF Nos. 44 and 44-1. This Court granted Plaintiffs Motion. Order, ECF
No. 63. Rather than filing the Proposed TAC, Plaintiff filed a TAC that differs substantially from the proposed
changes described in her Motion and appearing in the Proposed TAC, plus four declarations. See ECF Nos. 66-70.
This violates Fed. R. Civ. P. 15(a)(2) and Local Rule 15(c) and (d). The Court granted leave to file the Proposed
TAC attached to ECF No. 44, not a completely different complaint. Accordingly, the SAC remains the operative
complaint. Regardless, the additions to the Proposed TAC and filed TAC would not have changed the outcome here.

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party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v.

Liberty Lobby, Inc., 477 U.S. 242,248 (1986)). A fact is "material" if it could affect the outcome
of the case. Id.
The Court reviews evidence and draws inferences in the light most favorable to the
nonmoving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting

Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the
nonmoving party must present "specific facts showing that there is a genuine issue for trial."

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.
R. Civ. P. 56(e)) (emphasis in original). The "mere existence of a scintilla of evidence in support
of the plaintiffs position [is] insufficient" to avoid summary judgment. Liberty Lobby, Inc., 477
U.S. at 252. Uncorroborated allegations and "self-serving testimony" are also insufficient.

Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

DISCUSSION
Bedivere argues that Plaintiff fails to raise a genuine issue of fact regarding her copyright
infringement claim and moves for summary judgment as to all claims against it. Def.' s Am. Mot.
2.
A plaintiff may allege direct, contributory, or vicarious copyright infringement. Ellison v.

Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). "To prove a claim of direct copyright
infringement, a plaintiff must show that he owns the copyright and that the defendant himself
violated one or more of the plaintiffs exclusive rights under the Copyright Act." Id. (citation
omitted). One may be liable for contributory infringement if they induce, cause, or materially
contribute to another's infringing conduct with knowledge of the infringing activity. Id. at 1076
(citation omitted). One may be liable for vicarious infringement if they enjoy "a direct financial
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benefit from another's infringing activity and 'ha[ve] the right and ability to supervise' the
infringing activity." Id. at 1076 (citations omitted) (emphasis in original).
Here, Plaintiff appears to allege vicarious and contributory, not direct, copyright
infringement against Bedivere. Plaintiff does not allege that Bedivere violated one of Plaintiffs
rights under the Copyright Act. Instead, Plaintiff alleges that Warner, Ubimodo, and The Soteria
Institute "induced" Starr Companies' and Bedivere's "third-party infringement of her intellectual
property." Pl.'s SAC 44. Plaintiffs Reply to Bedivere's Answer to her First Amended Complaint
provides further insight:
"[Bedivere is] responsible for induced infringement of copyright from direct infringement
of [] Warner and his affiliated companies and stand[s] to artificially gain from the
Plaintiffs misappropriated trade secrets being capitalized upon by [] Warner and his
companies."
Pl.'s Reply 10, ECF No. 35.
Plaintiff alleges that the Memorandum from Carberry to Bedivere disclosed her trade
secrets, patents, and "knowledge of her [c]opyright." Pl.'s Resp. 10. Plaintiff also alleges that
Bedivere failed to follow "reasonable business practices" after investing in Ubimodo and ensure
it was not an "accessory after the fact" or aiding and abetting "offending behaviors." Id. at 13.
Neither of these allegations appear in the SAC, and Plaintiff fails to support them by
reference to any evidence in the record. The record reflects that Carberry gave a Memorandum to
Bedivere, Warner gave Bedivere a due diligence package, and Bedivere invested in Ubimodo.
Def.'s Am. Mot. 5; Schleider Deel.,

,r,r 4-5. Bedivere maintains that neither the Memorandum

nor the package referred to Plaintiff or her intellectual property. Def.' s Am. Mot. 5; Schleider
Deel., ,r 8. Bedivere further argues that none of its employees had ever heard of Plaintiff or her
technology until she called Doran in fall 2017. Def.'s Am. Mot. 6; Schleider Deel., ,r,r 9, 12;
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Doran Deel., ECF No. 48, ,r,r 3-4. Bedivere also argues that, aside from its investment, it has no
relationship with Ubimodo. Def.'s Am. Mot. 5-6; Schleider Deel.,

,r 7.

Plaintiff provides no basis for her assertion that the Memorandum discussed her
intellectual property or that Bedivere even knew it existed, nor has she submitted evidence to that
effect. But even if Bedivere had knowledge ofUbimodo's alleged infringement, it would be
unreasonable to infer that Bedivere "induce[ d], cause[d], or materially contribute[d] to"
Ubimodo's infringing conduct. See Ellison, 357 F.3d at 1076. Likewise, assuming, arguendo,
that Ubimodo infringed on Plaintiffs copyright, that fact alone does not demonstrate that
Bedivere directly benefitted from or had the right or ability to supervise the infringing activity.
See id. (citations omitted). In other words, it would be unreasonable to infer that Bedivere is
liable for contributory or vicarious infringement from these facts. No rational trier of fact could
find in favor of Plaintiff.
Accordingly, this Court GRANTS summary judgment as to Plaintiffs claims against
Bedivere.
CONCLUSION
Bedivere's Amended Motion for Summary Judgment, ECF No. 49, is GRANTED.

IT IS SO ORDERED.

DATED this 9th day of January, 2019.

____ l

\,

Michael J. McShane
United States District Judge
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