Kruska v. Ochoa et al, No. 2:2008cv00054 - Document 252 (D. Ariz. 2010)
Court Description: ORDER denying 246 Defendants' Motion to Dismiss Plaintiff's Copyright Infringement Claim and denying 245 Plaintiff's Motion for Summary Judgment. Signed by Judge Stephen M McNamee on 5/6/10.(LSP)
Download PDF
<![CDATA[
Kruska v. Ochoa et al 1 Doc. 252 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 10 11 12 13 14 JAN E. KRUSKA, ) ) Plaintiff, ) ) vs. ) ) ) PERVERTED JUSTICE FOUNDATION) ) INCORPORATED, et al., ) ) Defendants. ) No. CV 08-00054-PHX-SMM ORDER 15 16 Pending before the Court are the Motion for Summary Judgment filed by Plaintiff Jan 17 Kruska (“Plaintiff”) (Dkt. 245),1 the Motion to Dismiss Plaintiff’s Copyright Infringement 18 Claim filed by Defendants Perverted Justice Foundation Incorporated and Xavier Von Erck 19 (“Defendants”) (Dkt. 246),2 Defendants’ Request for Judicial Notice (Dkt. 247), and 20 Plaintiff’s Request for Judicial Notice. (Dkt. 250.) Defendants also filed a Supplement to 21 22 1 23 24 25 26 27 28 Plaintiff’s Motion for Summary Judgment was filed on February 4, 2010 (Dkt 245), and Defendants filed a Response on March 8, 2010. (Dkt. 248.) No Reply was filed by Plaintiff. 2 Defendants’ Motion to Dismiss was filed on February 26, 2010 (Dkt. 246), along with their Request for Judicial Notice. (Dkt. 247). Defendants filed a Supplement to their Motion to Dismiss on March 12, 2010. (Dkt 249.) On March 19, 2010, Plaintiff filed a “Request for Judicial Notice.” (Dkt. 250.) While not technically labeled as a Response, Plaintiff addresses the arguments raised in Defendant’s initial Motion to Dismiss. Thus, the Court will construe this document as Plaintiff’s Response. Dockets.Justia.com 1 their Motion to Dismiss. (Dkt 249.) For the reasons that follow, the Court will deny both 2 Plaintiff’s Motion for Summary Judgment and Defendants’ Motion to Dismiss. 3 BACKGROUND 4 While Plaintiff’s Complaint named numerous defendants, the Court will recount only 5 the procedural history pertaining to the present two Defendants. On January 10, 2008, 6 Plaintiff brought suit against Defendants alleging claims for intentional infliction of 7 emotional distress, defamation, violations of the Racketeer Influenced and Corrupt 8 Organizations statutes (“RICO”), cyberstalking/cyberharassment, violations of the Digital 9 Millennium Copyright Act (“DCMA”), and prima facie tort. (Dkt. 1.) On March 21, 2008, 10 Defendants filed a motion to dismiss based upon lack of personal jurisdiction, failure to state 11 a claim, and insufficient service of process. (Dkt. 44.) The Court granted Defendants’ 12 motion to dismiss for lack of personal jurisdiction, but the Court did so without prejudice to 13 allow Plaintiff to amend and re-file her complaint. (Dkt. 139.) On January 7, 2009, Plaintiff 14 filed an Amended Complaint. (Dkt. 142.) The Amended Complaint reasserted the claims 15 that Plaintiff made in the original Complaint. (Compare Dkt. 1 at 13-19, with Dkt. 142 at 37- 16 44.) Following the filing of another motion to dismiss, the Court found that Plaintiff had 17 failed to state a claim against Defendants as to all claims but copyright infringement. (Dkt. 18 184.) Consequently, all claims with the exception of copyright infringement were dismissed 19 against Defendants. 20 On January 11, 2010, the Court held a scheduling conference at which both Plaintiff 21 and Defendants were present. (Dkt. 235 (minute entry); Dkt. 240 (transcript).) At that 22 conference, Plaintiff admitted that she has never registered any of her photographs or written 23 materials with the United States Copyright Office. On January 25, 2010, the Court issued 24 an Order allowing the parties to submit motions on the limited issue of the effect of 25 Plaintiff’s failure to register her copyright on her copyright infringement claim. (Dkt. 243.) 26 The pending motions and requests for judicial notice are in response to that Order. 27 /// 28 /// -2- 1 STANDARD OF REVIEW 2 A party may file a motion asserting a lack of jurisdiction over the subject matter under 3 Rule 12(b)(1) of the Federal Rules of Civil Procedure. Fed. R. Civ. P. 12(b)(1). “A court 4 may raise the question of subject matter jurisdiction, sua sponte, at any time during the 5 pendency of the action, even on appeal.” United States v. Moreno-Morillo, 334 F.3d 819, 6 830 (9th Cir. 2003) (internal quotation marks and citation omitted); see also Fed. R. Civ. P. 7 12(h)(3). DISCUSSION 8 9 I. Judicial Notice 10 In connection with a motion to dismiss, a party may ask the court to take judicial 11 notice of certain matters. See Fed. R. Evid. 201(d), (f). The court can take judicial notice 12 of “adjudicative facts” that are “not subject to reasonable dispute” and either “generally 13 known” in the community or “capable of accurate and ready determination by resort to 14 sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. 201(a), (b). A 15 court may choose to take judicial notice, whether requested by the parties or not. Fed. R. 16 Evid. 201(c). However, where judicial notice is requested by a party who supplies the court 17 with the necessary information, a court must take judicial notice. Fed. R. Evid. 201(d). 18 Judicial notice may be taken at any stage of the proceedings. Fed. R. Evid. 201(f). 19 Defendants ask the Court to take judicial notice of an excerpt from the transcript of 20 the January 11, 2010 Preliminary Pretrial Conference held before this Court. (Dkt. 247). A 21 court may take judicial notice of court filings and other matters of public record. See 22 Burbank-Glendale-Pasadena Airport Auth. v. City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 23 1998); Reyn’s Pasta Bella, LLC v. Vista USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). 24 It is also well established that a federal district court can take judicial notice of its own 25 records. Chandler v. United States, 378 F.2d 906, 909 (9th Cir. 1967) (citations omitted). 26 Because Defendants’ request satisfies Federal Rule of Evidence 201(b), the Court takes 27 28 -3- 1 judicial notice of the transcript excerpt from the January 11, 2010 Preliminary Pretrial 2 Conference.3 3 Additionally, Plaintiff requests that the Court take judicial notice of the Supreme 4 Court’s opinion in Reed Elsevier, Inc. v. Muchnick, 130 S.Ct. 1237(2010). (Dkt. 250). 5 Plaintiff states that this decision defeats Defendants’ argument, discussed below, that the 6 Court lacks subject matter jurisdiction over Plaintiff’s copyright infringement claim due to 7 her failure to register her copyright. The recent decisions of the U.S. Supreme Court are not 8 appropriate subjects for judicial notice as Rule 201 “governs only judicial notice of 9 adjudicative facts.” Fed. R. Evid. 201(a). Rather than asking the Court to take judicial 10 notice under Federal Rule of Evidence 201, Plaintiff appears simply to be directing the Court 11 to the Reed Elsevier decision. Thus, Plaintiff’s request for judicial notice is denied. 12 II. Defendants’ Motion to Dismiss 13 The Court has dismissed all claims with prejudice against Defendants, with the 14 exception of Plaintiff’s copyright infringement claim. (Dkt. 184.) In her Amended 15 Complaint, Plaintiff alleges that Defendants created a “Wikisposure” website about Plaintiff 16 where “four copyrighted images of Plaintiff” and “numerous copyrighted written materials” 17 were used without her permission. (Dkt 142 at 9.) However, nowhere in her Complaint does 18 she allege any facts showing that she registered either the images or written materials with 19 the United States Copyright Office. (Dkt 142.) At the January 11, 2010 Preliminary Pretrial 20 Conference, the Court questioned Plaintiff regarding the apparent lack of registration. In 21 response, Plaintiff admitted that none of the photographs were “federally registered.” (Dkt. 22 240, Tr. 5:12-21; Dkt. 247.) The writings similarly were not registered. 23 In their Motion, Defendants argue that Plaintiff’s remaining copyright infringement 24 claim against them must be dismissed due to lack of subject matter jurisdiction. (Dkt. 246, 25 5:11-13.) According to Defendants, section 411(a) of the Copyright Act provides that no 26 infringement action may be instituted until either registration of the copyright is made or the 27 28 3 The transcript excerpt is attached as Exhibit 1 to Document 247. -4- 1 Copyright Office has refused to register the copyright. (Id. at 3:17-23.) As a result, federal 2 courts lack subject matter jurisdiction to entertain a copyright infringement claim unless the 3 disputed copyright is registered. (Id. at 3:23-4:16.) Since Plaintiff admitted at the 4 Preliminary Pretrial Conference that she has never registered any of her photographs or 5 written materials, her copyright infringement claim must be dismissed. (Id. at 5:8-10; Dkt 6 247.) 7 The U.S. Constitution grants Congress the power “[t]o promote the Progress of 8 Science and useful Arts, by securing for limited Times to Authors . . . the exclusive Right to 9 . . . their . . . Writings.” Art. 1, § 8, cl. 8. As a means of exercising this power, Congress has 10 developed a statutory scheme governing the existence and scope of copyright protection for 11 “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 12 102(a). This scheme gives copyright owners “exclusive rights” to distribute, reproduce, or 13 perform their works publicly. § 106. Anyone who violates any of the copyright holder’s 14 exclusive rights as set forth in the Copyright Act is an “infringer of the copyright.” § 501(a). 15 Such infringement entitles the copyright owner to sue for infringement, subject to the 16 requirements of section 411 of the Copyright Act. § 501(b). With limited exceptions, the 17 Copyright Act “requires copyright holders to register their works before suing for copyright 18 infringement.” Reed Elsevier, 130 S. Ct. at 1241 (citing 17 U.S.C. § 411(a)).4 Registration 19 is therefore a “precondition” to suing for infringement of a particular copyright. Id. 20 In its recent Reed Elsevier decision, the U.S. Supreme Court considered whether 21 section 411(a) deprived a federal court of subject matter jurisdiction to adjudicate a copyright 22 23 4 24 25 26 27 These exceptions include where the work is not a U.S. work, where the infringement claim concerns rights of attribution and integrity under section 106A, or where the copyright holder attempts to register the work and registration is refused. Additionally, section 411(c) allows court to adjudicate infringement actions involving certain types of unregistered works where the author “declare[s] an intention to secure copyright in the work” and “makes registration for the work, if required by subsection (a), within three months after [the work’s] first transmission.” 17 U.S.C. §§ 411(c)(1)-(2). 28 -5- 1 infringement claim involving unregistered works. The Court held that “Section 411(a)’s 2 registration requirement is a precondition to filing a claim that does not restrict a federal 3 court’s subject-matter jurisdiction.” Id. In reaching its decision, the Court adopted the 4 approach used in Arbaugh v. Y&H Corp., 546 U.S. 500 (2006) to distinguish jurisdictional 5 conditions from elements of a claim or claim-processing requirements. First, section 411(a) 6 did not “clearly state[]” that its registration requirement was jurisdictional. Reed Elsevier, 7 130 S.Ct. at 1245. Second, section 411(a)’s registration requirement is located in a separate 8 provision from those granting federal courts subject matter jurisdiction over copyright 9 claims. Id. at 1245-46. Federal courts have subject matter jurisdiction over copyright 10 infringement claims pursuant to 28 U.S.C. § 1331 and § 1338.5 Id. at 1246. Neither section 11 conditions jurisdiction on whether a copyright holder has registered the work prior to suing 12 for infringement. Id. Finally, no other factor suggests that section 411(a)’s registration 13 requirement can be read to “speak in jurisdictional terms or refer in any way to the 14 jurisdiction of the district courts.” Id. (citation omitted). 15 Under Reed Elsevier, even if a plaintiff files a claim for copyright infringement 16 without satisfying § 411(a)’s registration requirement, a federal district court has jurisdiction 17 over the claim. This case defeats Defendants’ argument that the Court lacks subject matter 18 jurisdiction over Plaintiff’s copyright infringement claim. Indeed, Defendants’ Supplement 19 appears to acknowledge as much (Dkt. 249). 20 The U.S. Supreme Court’s Reed Elsevier decision changed the landscape with regard 21 to a federal court’s subject matter jurisdiction to adjudicate a copyright infringement claim 22 involving unregistered works. Reed Elsevier was issued on March 2, 2010, after Defendants 23 had filed their initial motion, and led them to file a Supplement. (Dkt. 249.) 24 Supplement, Defendants seemingly shift their argument from one grounded in subject matter 25 jurisdiction to one based on failure to state a claim. However, allowing Defendants to change In their 26 5 27 28 Federal law confers “original jurisdiction of any civil action arising under any Act of Congress relating to . . . copyrights” on United States district courts. 28 U.S.C. § 1338(a). Such jurisdiction is exclusive. Id. -6- 1 their argument now, after filing their Motion to Dismiss, would not afford Plaintiff an 2 opportunity to respond to Defendant’s new argument. Thus, Defendants’ Motion to Dismiss 3 based upon subject matter jurisdiction is denied. Should Defendants wish to bring another 4 motion based upon Plaintiff’s failure to register her copyright, the Court will consider such 5 a motion. 6 III. Plaintiff’s Motion for Summary Judgment 7 In her Motion, Plaintiff asserts that the disputed images and writings are subject to 8 copyright protection. (Dkt. 245, 2-3.) Plaintiff goes into great detail discussing how a 9 copyright is created, and arguing that she enjoys exclusive rights to her copyrighted 10 materials. (Id.) However, as Defendants point out, even assuming Plaintiff is entitled to 11 copyright protection in the images and writings, Plaintiff’s failure to register this copyrighted 12 material prevents her from bringing an infringement action. (Dkt. 248, 3-4.) Plaintiff 13 ignores the distinction between the existence of a valid copyright and the registering of a 14 copyright allowing a copyright infringement suit to be brought. See Kodadek v. MTV 15 Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998) (“Copyright registration is not a 16 prerequisite to a valid copyright, but it is a prerequisite to a suit based on copyright.”). 17 Plaintiff has failed to allege any facts in her Amended Complaint showing that she either 18 applied for or received a copyright registration for the four photographs or written materials. 19 Moreover, she admitted at the Preliminary Pretrial Conference that she has never registered 20 any of her photographs or written materials. (Dkt. 240, 247.) Therefore, Plaintiff’s first 21 argument lacks merit. 22 Additionally, Plaintiff argues that the “doctrine of fair use” is not a defense available 23 to Defendants. (Dkt. 245, 3-4.) Plaintiff claims that by asserting the fair use doctrine, 24 Defendants have admitted that they were not the original creators or owners of the 25 copyrighted pictures and writings, and that they used these materials without her permission. 26 (Id.) Furthermore, she argues that none of the categories that qualify for fair use apply in this 27 case. (Id.) 28 -7- 1 To present a prima facie case of direct copyright infringement, Plaintiff must satisfy 2 two requirements: (1) she must show ownership of the allegedly infringing material and (2) 3 she must show that the alleged infringers violated at least one of the exclusive rights granted 4 by 17 U.S.C. § 106 to the copyright holder. 17 U.S.C. § 106 (2006); A&M Records, Inc. v. 5 Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). But the rights conferred to the copyright 6 holder under 17 U.S.C. §106 are limited by the “fair use” doctrine. The fair use doctrine 7 allows the use of copyrighted works without the copyright owner’s consent under certain 8 situations, including “criticism, comment, news reporting, teaching . . . scholarship or 9 research.” 17 U.S.C. § 107 (2006); see Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 10 1159 (9th Cir. 2007) (“Even if a plaintiff . . . makes a prima facie case of direct infringement, 11 the defendant may avoid liability if it can establish that its use of the images is a ‘fair use’ 12 as set forth in 17 U.S.C. § 107.”) (citation omitted). To determine if the unauthorized use of 13 the copyrighted material is protected by the fair use doctrine, the court must evaluate (1) the 14 purpose of the use, (2) the nature of the copyrighted work, (3) the amount and substantiality 15 of the portion used compared to the copyrighted work as a whole, and (4) the effect of the 16 use upon the potential market for, or the value of, the copyrighted work. Perfect 10, 508 F.3d 17 at 1163 (citing 17 U.S.C.§ 107). 18 Despite Plaintiff’s argument, the fair use doctrine is a statutory defense that is relevant 19 only if the Court considers the merits of Plaintiff’s copyright infringement claim. No 20 discovery has been conducted by the parties, and no merits determination has been made by 21 the Court. Plaintiff has not established that she owns the alleged infringing material, much 22 less that Defendants violated her exclusive rights as a copyright holder. As stated previously, 23 the Court is only considering now the limited issue of the legal effect of Plaintiff’s failure to 24 register her copyright. Thus, Plaintiff’s second argument fails, and the summary judgment 25 motion is denied. 26 Finally, the Court notes that Plaintiff has failed to comply with the Local Rules of 27 Civil Procedure. Under Local Rule 56.1, “[a]ny party filing a motion for summary judgment 28 shall file a statement, separate from the motion and memorandum of law, setting forth each -8- 1 material fact on which the party relies in support of the motion. . . . A failure to submit a 2 separate statement of facts in this form may constitute grounds for the denial of the motion.” 3 LRCiv 56.1(a). In the present case, Plaintiff has failed to file such a separate statement of 4 facts outlining each material fact that supports her case, and thus, this is an independent 5 reason for denying the motion. 6 Accordingly, 7 IT IS HEREBY ORDERED DENYING Defendants’ Motion to Dismiss Plaintiff’s 8 9 10 11 Copyright Infringement Claim. (Dkt. 246.) IT IS FURTHER ORDERED DENYING Plaintiff’s Motion for Summary Judgment. (Dkt 245.) DATED this 6th day of May, 2010. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -9-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
