Jeff Grosso, Plaintiff-appellant, v. Miramax Film Corp., a New York Corporation; Miramax Books; Spanky Pictures, a New York Corporation; David Levien, an Individual; Brian Koppelman, an Individual; Ted Demme, an Individual; Joel Stillerman, an Individual, Defendants-appellees, 400 F.3d 658 (9th Cir. 2005)

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US Court of Appeals for the Ninth Circuit - 400 F.3d 658 (9th Cir. 2005) Argued and Submitted April 7, 2003
Filed September 8, 2004
Amended March 15, 2005

John A. Marder, Steven J. Renick, and Sylvia Havens, Manning & Marder, Kass, Ellrod, Ramirez, Los Angeles, CA, for the plaintiff-appellant.

Richard L. Charnley, Nelson, Thompson, Pegue & Thornton, Santa Monica, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, Audrey B. Collins, District Judge, Presiding. D.C. No. CV-99-10939-ABC.

Before SCHROEDER, Chief Judge, THOMPSON, and SGRABER, Circuit Judges.


ORDER

The opinion is amended to add a new penultimate paragraph as follows:

We express no opinion on the question whether the facts adduced during the summary judgment proceedings on Grosso's copyright claim can support the Desny claim set forth in Grosso's complaint. Our decision is compelled by the procedural posture of the Desny claim. Because the district court granted Miramax' motion to dismiss under Rule 12(b) (6), our inquiry begins and ends with Grosso's First Amended Complaint. See Schneider v. Cal. Dep't of Corr., 151 F.3d 1194, 1197 n. 1 (9th Cir. 1998) (stating that " [t]he focus of any Rule 12(b) (6) dismissal — both in the trial court and on appeal-is the complaint"). Further, we must take all factual allegations as true and must construe them in the light most favorable to the non-moving party. AlliedSignal, Inc. v. City of Phoenix, 182 F.3d 692, 695 (9th Cir. 1999). With those limitations on our review in mind, we hold only that the First Amended Complaint states a Desny claim. We need not and do not decide whether the summary judgment record or any future record, yet to be developed, supports that claim.

The panel has voted to deny the petition for panel rehearing and petition for rehearing en banc.

The full court was advised of the petition for rehearing en banc, and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P.

The petition for panel rehearing and the petition for rehearing en banc are DENIED.

No future petitions for panel or en banc rehearing will be entertained.