Choyce v. SF Bay Area Independent Media Center et al, No. 3:2013cv01842 - Document 54 (N.D. Cal. 2014)
Court Description: ORDER GRANTING IN PART AND DENYING PART MOTIONS TO DISMISS, DENYING ANTI-SLAPP MOTIONS WITHOUT PREJUDICE by Judge Jon S. Tigar, granting in part and denying in part 29 Motion to Dismiss; granting in part and denying in part 31 Motion to Dismiss, Motion to Strike. (wsnS, COURT STAFF) (Filed on 6/2/2014)
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Choyce v. SF Bay Area Independent Media Center et al Doc. 54 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 DIONNE CHOYCE, Case No. 13-cv-01842-JST Plaintiff, 8 v. 9 SF BAY AREA INDEPENDENT MEDIA CENTER, et al., 11 United States District Court Northern District of California 10 Defendants. 12 I. ORDER GRANTING IN PART AND DENYING PART MOTIONS TO DISMISS, DENYING ANTI-SLAPP MOTIONS WITHOUT PREJUDICE Re: ECF Nos. 29, 30 INTRODUCTION 13 Plaintiff Dionne Choyce (“Plaintiff”) has brought a cause of action for copyright 14 infringement under the federal Copyright Act, 17 U.S.C. § 101, et seq., and state-law causes of 15 action for defamation and libel. First Amended Complaint (“FAC”), ECF No. 26. Before the 16 Court are two separate motions by two Defendants: SF Bay Area Independent Media Center 17 (“Indybay”) and Layer42.net, Inc. (“Layer42”) (collectively, the “Moving Defendants”). In both 18 motions, the Moving Defendants move the Court to dismiss all claims with prejudice pursuant to 19 Rule 12(b)(6) of the Federal Rules of Civil Procedure, and separately move the Court to specially 20 strike the state-law claims pursuant to California’s Anti-SLAPP (“Strategic Lawsuit Against 21 Political Participation”) statute, Cal. Code Civ. Proc. § 425.16. The matter came for hearing on 22 March 27, 2014. 23 24 25 26 27 28 Dockets.Justia.com 1 II. BACKGROUND Factual Background1 2 A. 3 Plaintiff Dionne Choyce is a lawyer at The Choyce Law Firm. FAC ¶ 6. Defendant SF 4 Bay Area Independent Media Center (“Indybay”) operates an independent media website, 5 indybay.org (“Indybay”), in the County of San Francisco. FAC ¶ 7. Defendant Layer42, a 6 California corporation, provides internet connectivity, hosting, and infrastructure to Indybay “in 7 furtherance of” the Indybay website. FAC ¶ 8. Defendant Cernio Technology Cooperation 8 (“Cernio”), an unincorporated association operating in Santa Rosa, California, provides similar 9 services as co-defendant Layer42 “in furtherance of” the Indybay website. FAC ¶ 9. Plaintiff alleges that, on or around April 25, 2012, unknown Doe Defendants posted a 10 United States District Court Northern District of California 11 12 13 14 15 16 17 webpage on Indybay with the title “Attorney Dionne choyce who embezzled from homeless may serve prison time.” FAC ¶ 16. Within this webpage, Defendants or persons associated with Defendants included a graphic image of Plaintiff entitled “dionne_choyce.jpg,” which was taken from his firm’s website. FAC ¶ 17. The postings contained additional content indicting that Plaintiff was being prosecuted by the U.S. Department of Justice. FAC ¶ 18. On or around May 24, 2012, other Doe Defendants posted another webpage on Indybay with the title “The Choyce Law Firm evicted from building.” FAC ¶ 19. This webpage used the same graphic image as used in the prior webpage. FAC ¶ 20. The May 24 content claimed that 18 19 Plaintiff’s firm was being evicted from its office for failure to pay two months of rent, and also indicated that the firm’s landlord was acting in part in response to Plaintiff’s “embezzlement.” 20 21 22 23 24 25 26 27 28 1 On a motion to dismiss, the Court generally considers only the allegations of the complaint, in the light most favorable to the plaintiff. Indybay requests that the Court also take judicial notice of a printout of content that purportedly appears on the indybay website, including the statement that “[o]pinions are those of the contributors and are not necessarily endorsed by the SF Bay Area IMC.” ECF No. 33. Plaintiff opposes this request. The printout is relevant only to the defamation claim, over which the Court will not exercise jurisdiction, and so the Court DENIES the request. The printout’s accuracy is also “subject to reasonable dispute.” Moreover, even if the Court did take notice of the statement on the website, it would have little effect on the disposition of the state-law claim, since it would demonstrate only what the website says about Indybay’s editorial policy rather than what that policy actually is. Indybay has also submitted a declaration from David Morse, which is relevant only to the Anti-SLAPP Motion. Plaintiff objects to that declaration also. The court need not, and will not, consider the Morse Declaration. 2 1 FAC ¶ 21. The content also claimed that the eviction was applauded by many in the “community” 2 whom Choyce had victimized. Id. 3 Plaintiff asserts that the content on both webpages is false. FAC ¶¶ 18, 21. Plaintiff 4 argues that the use of Plaintiff’s firm website photo constitutes copyright infringement, and the 5 content on both webpages constitutes defamation and libel. FAC ¶ 5. 6 B. Procedural History 7 Plaintiff filed the initial complaint in this action in April 2013. Complaint for Damages 8 and Injunctive Relief (“Initial Compl.”), ECF No. 1. In the complaint, he brought causes of action 9 for copyright infringement, defamation, and libel against Defendants Indybay, Layer42, Cernio, 10 United States District Court Northern District of California 11 12 13 14 15 16 17 and Does 1-10. Id. Layer42, then the only answering Defendant, moved to dismiss all the claims against it, and brought an anti-SLAPP Motion to strike Plaintiff’s defamation and libel claims. ECF No. 9. The Court dismissed Plaintiff’s copyright claim without prejudice, since Plaintiff failed to allege that he had registered his copyright in the image or even that he had submitted a completed application that had been received by the Copyright Office. Order Denying Plaintiff’s Motion to Strike, Granting in Part and Denying in Part Defendant’s Motion to Dismiss and Granting Defendant’s Motion to Specially Strike (“Previous Order”) 5:1-11, , 2013 WL 6234628, 2013 U.S. Dist. LEXIS 169813 (citing 17 U.S.C. § 411(a)) (“no civil action for infringement of the copyright 18 in any United States work shall be instituted until pre-registration or registration of the copyright 19 claim has been made in accordance with this title”). The Court granted “Plaintiff leave to file an 20 amended complaint re-asserting his copyright claim, if he alleges that he has now applied for a 21 22 copyright,” and further ordered that Plaintiff “must in any such complaint restrict his asserted remedies to those which are available for infringement alleged to have occurred before the 23 copyright holder applied for a copyright.” Previous Order 18:6-9, 2013 WL 6234628, at *11, 24 2013 U.S. Dist. LEXIS 169813, 35. The Court warned that “[f]ailure to comply with this order 25 26 27 will result in dismissal with prejudice of the federal claim.” Id. 18:15, 2013 WL 6234628, at *12, 2013 U.S. Dist. LEXIS 169813, 36. Since the only potential jurisdiction the Court might exercise over the state law claims was 28 3 1 supplemental jurisdiction, after dismissing the sole federal claim without prejudice, the Court 2 stated that it would “not address Plaintiff’s state law claims on a 12(b)(6) motion.” Previous 3 Order 7:13, 2013 WL 6234628, at *4, 2013 U.S. Dist. LEXIS 169813, 13. However, the Court 4 stated that it would “reach those claims insofar as Defendant is entitled to consideration of its anti- 5 SLAPP motion.” Id. 7:13-15, 2013 WL 6234628, at *11, 2013 U.S. Dist. LEXIS 169813, 13. The 6 Court went on to conclude that, under the Anti-SLAPP statute, Layer42 was entitled to strike the 7 state-law claims insofar as they related to the allegation that Plaintiff had embezzled from clients. 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 Plaintiff filed the FAC in December 2013. As his first cause of action, he re-asserted his copyright complaint against all Defendants, but again failed to allege that he had applied for a copyright. FAC ¶¶ 20-25. He brought a second cause of action for defamation against Layer42, Cernio, Indybay and Does 1-10, restricting his allegations to relate only to the May 24 posting. FAC ¶¶ 26-58. His third cause of action for defamation is brought against Does 1-10 for both the May 24 and April 25 postings. FAC ¶¶ 59-88. The fourth of cause of action, also only against Does 1-10, is for libel. FAC ¶¶ 89-102. Indybay has subsequently appeared in this action, filing one of the two instant motions to dismiss and to strike. C. Jurisdiction The Court has jurisdiction over the copyright infringement claim pursuant to 28 U.S.C. §§ 18 1331 & 1338(a). 19 D. 20 21 22 Legal Standard A pleading must contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). “Dismissal under Rule 12(b)(6) is appropriate only where the complaint lacks a cognizable legal theory or sufficient facts to support a cognizable 23 24 legal theory.” Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). Dismissal is also proper where the complaint alleges facts that demonstrate that the complaint is 25 barred as a matter of law. See Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th 26 Cir.1990); Jablon v. Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980). 27 28 For purposes of a motion to dismiss, “all allegations of material fact are taken as true and 4 1 construed in the light most favorable to the nonmoving party.” Cahill v. Liberty Mut. Ins. Co., 80 2 F.3d 336, 337-38 (9th Cir. 1996). However, “[w]hile a complaint attacked by a Rule 12(b)(6) 3 motion to dismiss does not need detailed factual allegations, a Plaintiff’s obligation to provide the 4 ‘grounds' of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 5 recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 6 544, 555 (2007). To survive a motion to dismiss, a pleading must allege “enough fact to raise a 7 reasonable expectation that discovery will reveal evidence” to support the allegations. Id. at 556. 8 III. 9 10 ANALYSIS A. Federal Copyright Claim The FAC, like its predecessor, fails to allege that Plaintiff applied for a copyright in the United States District Court Northern District of California 11 allegedly copyrighted image. The FAC must be dismissed again for this reason. In his 12 opposition, Plaintiff has attached a Proposed Second Amended Complaint (“PSAC”), in which he 13 finally alleges that he has applied for a copyright, and limits his asserted remedies to those 14 available for post-infringement registration, as the Court previously ordered. Exh. A to Plaintiff’s 15 Opposition to Defendant Layer42.net, Inc.’s Motion to Dismiss (“Opp. to Layer42”), ECF Nos. 37 16 & 37-1. The question is whether the Court should provide a second opportunity to amend by 17 allowing Plaintiff to file the PSAC. 18 In deciding whether to grant leave to amend, a court must “consider ‘(1) bad faith, (2) 19 undue delay, (3) prejudice to the opposing party, (4) futility of amendment, and (5) whether 20 plaintiff has previously amended his complaint.’” Sisseton-Wahpeton Sioux Tribe of Lake 21 Traverse Indian Reservation, N. Dakota & S. Dakota v. United States, 90 F.3d 351, 355 (9th Cir. 22 1996) (quoting Ascon Properties, Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989)). 23 “[T]he district court’s discretion is particularly broad where a plaintiff has previously amended the 24 complaint.” Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990). 25 Plaintiff makes an unconvincing attempt to blame his adversary for his failure to amend, 26 arguing that Layer42 filed a request for attorney’s fees which required opposition over the holiday 27 season, and this task apparently distracted Plaintiff’s counsel from adding an allegation to the FAC 28 that Plaintiff had applied for a copyright. Opp. to Layer42 2:21-28. This argument is particularly 5 1 unpersuasive given the fact that Layer42’s counsel offered a stipulation to Plaintiff’s counsel to 2 alter the deadlines to avoid the holiday season, and received no response. Declaration of Daniel L. 3 Casas ¶ 6, and Exh. C thereto, ECF Nos. 41-1. Plaintiff acknowledges that the failure to amend 4 was due to “oversight” on his part. Opp. to Layer42 7:9-10. 5 Dismissal with prejudice might be justified as a sanction for failing to follow the Court’s previous order, since the Court finds that the need to control the pace of its docket and the need for 7 timely resolution of litigation weigh in favor of dismissal, Plaintiff’s excuse for failure to follow 8 the Court’s order is insubstantial, and the Court put Plaintiff specifically on notice that his failure 9 to follow the Court’s order would result in dismissal with prejudice. Cf. Yourish v. California 10 Amplifier, 191 F.3d 983, 992 (9th Cir. 1999) (affirming dismissal with prejudice when plaintiff 11 United States District Court Northern District of California 6 provided only a “paltry excuse for his default on the judge’s order”). Denial of leave to amend 12 might also be justified given the undue delay and the fact that the Court previously granted leave 13 to amend. See Allen, 911 F.2d at 374 (indicating dismissal with prejudice would be justified even 14 in the absence of a ‘futility’ finding where “the movant presented no new facts . . . and provided 15 no satisfactory explanation for his failure to fully develop his contentions originally”). 16 Denial of leave to amend under Rule 15 is also appropriate here because further leave to 17 amend would be futile. Even if the Court were to consider the PSAC, it would not salvage 18 Plaintiff’s copyright claim. A copyright infringement plaintiff “bears the burden of proving 19 copyright ownership.” Fleischer Studios, Inc. v. A.V.E.L.A., Inc., 654 F.3d 958, 962 (9th Cir. 20 2011). The PSAC makes the conclusory legal conclusion that “[a]mong the exclusive rights 21 granted to Plaintiff under the Copyright Act are the exclusive rights to reproduce the Copyrighted 22 Work and to distribute the Copyrighted Work to the public.” ¶ 23. But this legal assertion is not a 23 well-pled factual allegation whose truth the Court must accept at the pleading stage. See Ashcroft 24 v. Iqbal, 556 U.S. 662, 678 (2009) (“the tenet that a court must accept as true all of the allegations 25 contained in a complaint is inapplicable to legal conclusions”). 26 “Under the copyright laws, the registration of a copyright certificate constitutes prima 27 facie evidence of the validity of a copyright in a judicial proceeding commenced within five years 28 of the copyright’s first publication.” Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 6 1 1140, 1144 (9th Cir. 2003) (emphasis added) (quoting Entm’t Research Group, Inc. v. Genesis 2 Creative Group, Inc., 122 F.3d 1211, 1217 (9th Cir. 1997) (citing 17 U.S.C. § 410(c)). The PSAC 3 alleges that the Copyright Office issued Plaintiff a registered copyright in the image on October 4 23, 2013, after the first motion to dismiss in this action. PSAC ¶ 24. Since Plaintiff has used the 5 image in his marketing since 2005, Declaration of Dionne Choyce (“Choyce Decl.”) ¶ 2, ECF No. 6 11, he cannot avail himself of this prima facie presumption. 7 The PSAC therefore must contain additional well-pled factual allegations from which it is 8 plausible to conclude that Plaintiff himself owns a valid copyright in the photographic image. But, 9 as Plaintiff’s counsel acknowledged at oral argument, and as Plaintiff himself has testified in a sworn declaration, the image was not created by Plaintiff; it is an image of Plaintiff. Choyce Decl. 11 United States District Court Northern District of California 10 ¶ 2. It was taken by a professional photographer. Id. Therefore, any copyright in the image 12 “vests initially in the author or authors of the work,” 17 U.S.C. § 201(a), which would be the 13 photographer of the image, not Plaintiff. See generally Aalmuhammed v. Lee, 202 F.3d 1227, 14 1231-32 (9th Cir. 2000). Even if the Court gave Plaintiff leave to file the PSAC, it would still fail 15 to state a claim for copyright infringement, rendering leave to amend futile. 16 Nonetheless, out of an abundance of caution, the Court has further considered the 17 possibility that Plaintiff might be able to finally plead a viable copyright claim if given a fourth 18 opportunity to do so. 19 Faced with Indybay’s arguments that he is not the author of the image, Plaintiff stated in 20 his opposition brief that, if the PSAC also fails to state a claim for copyright infringement, further 21 “leave to amend should be granted” to allege facts that state a claim. Plaintiff’s Opposition to 22 Indybay’s Motion 5:22-23, ECF No. 40. But in his brief, Plaintiff does not even hint at what facts 23 he would plead in a Second Proposed Second Amended Complaint that would salvage his claim. 24 He provides no explanation of how he owns the rights to the image. He does not state that he 25 acquired the rights from the original photographer, and neither does he explain that the work was 26 made for hire. And he does not explain how he could have a valid registration in an image he did 27 not author, since the certificate of registration he obtained in the copyright states that he, himself, 28 is the “author.” Exh. A to Supplemental Declaration of Dow Patten, ECF No. 17. 7 In Salameh v. Tarsadia Hotel, “Plaintiffs’ counsel represented to the district court that he 1 2 knew additional facts that could solve the deficiencies in the complaint, but counsel never 3 proffered these facts to the court.” 726 F.3d 1124, 1133 (9th Cir. 2013) cert. denied, 13-763, 4 2014 WL 684134 (U.S. Feb. 24, 2014). “A plaintiff may not in substance say ‘trust me,’ and 5 thereby gain a license for further amendment when prior opportunity to amend had been given.” 6 Id. 7 But again, out of an abundance of caution at oral argument the Court gave Plaintiff’s counsel a second opportunity to explain why the Court should give him a fourth opportunity to re- 9 plead. Plaintiff’s counsel explained that the image was, contrary to the certificate of registration 10 Plaintiff obtained, actually a “work made for hire,” and that Plaintiff will at some point apply to 11 United States District Court Northern District of California 8 the Copyright Office to correct his certificate. But a work made for hire is, with exceptions not 12 here relevant, “a work prepared by an employee within the scope of his or her employment.” 17 13 U.S.C. § 101. For this category to apply, the photographer must be a regular employee rather than 14 an independent contractor or a specially commissioned photographer. Marco v. Accent Pub. Co., 15 Inc., 969 F.2d 1547, 1550-53 (3d Cir. 1992). It simply is not plausible to infer that when Plaintiff 16 “started [his] own practice as an attorney in or about 2005,” and “had a professional photograph 17 taken of [him],” he employed a professional photographer as a member of his regular staff. 18 Choyce Decl. ¶ 2. 19 This action has been pending for nearly a year, and Plaintiff has yet to plead a valid federal 20 cause of action in any of his proposed complaints, or explain how he might at any point in the 21 foreseeable future. Given the numerous opportunities Plaintiff has had to state a claim of 22 copyright infringement, and Plaintiff’s failure to explain to the Court how the copyright claim 23 might be rendered plausible on further amendment, the Court concludes that further leave to 24 amend would be futile. Since there has been unjustified and undue delay, because the Court 25 previously granted leave to amend, and because the Court needs to control the pace of its docket, 26 further leave to amend will not be provided. The copyright claim is dismissed with prejudice. 27 B. Supplemental Jurisdiction Over Defamation Claim 28 The only jurisdiction the Court might exercise over the state-law defamation claim is 8 1 supplemental jurisdiction, pendent from the sole federal claim that the Court has again dismissed, 2 this time with prejudice. The Court previously explicitly declined to exercise supplemental 3 jurisdiction over the state-law claims, but stated that it would “reach those claims insofar as 4 [Layer42] is entitled to consideration of its Anti-SLAPP Motion. Previous Order 7:6-15, 2013 5 WL 6234628, at *4, 2013 U.S. Dist. LEXIS 169813, 13 (citing Carnegie-Mellon Univ. v. Cohill, 6 484 U.S. 343, 350, n.7 (1988) (“Cohill”) (“in the usual case in which all federal-law claims are 7 eliminated before trial, the balance of factors to be considered under the pendent jurisdiction 8 doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to 9 exercise jurisdiction over the remaining state-law claims”). 10 In this motion, Layer42 continues to urge the Court to reach, and dismiss, the state-law United States District Court Northern District of California 11 claims, but does not specifically argue that the factors governing supplemental jurisdiction weigh 12 in favor of the Court doing so. Indybay, on the other hand, argues that the Court should exercise 13 supplemental jurisdiction over the defamation claim, since both Moving Defendants are moving to 14 dismiss on the grounds that they are immune from liability under Section 230 of the federal 15 Communications Decency Act (“CDA”). Therefore, Indybay argues that since the parties have 16 already briefed, and the Court has already addressed, Section 230 in the context of the facts 17 alleged, and because the Court’s ruling would hinge on application of federal rather than state law, 18 all four Cohill factors weigh in favor of supplemental jurisdiction even in the absence of a federal 19 cause of action. 20 Indybay made persuasive arguments in its papers and at the hearing. However, the 21 arguments only apply to the extent the Court does, in fact, find that this action may not proceed 22 past the pleading stage for the reason of CDA immunity. If the Court does not reach that 23 conclusion, the Court will be left proceeding with litigation between California parties in which 24 the only causes of action are California defamation and libel law. For that reason, the Court again 25 will not exercise supplemental jurisdiction over the state-law claims in this action. The Motions to 26 Dismiss are denied without prejudice insofar as they are brought against the state-law claims. 27 28 3. Anti-SLAPP Motion In its Previous Order, the Court declined to exercise supplemental jurisdiction over the 9 1 state-law claims, but then said it would “reach those claims insofar as Defendant is entitled to 2 consideration of its anti-SLAPP motion,” and then proceeded to address the merits of Layer42’s 3 Anti-SLAPP Motion. Previous Order 7:13-14, 2013 WL 6234628, at *4, 2013 U.S. Dist. LEXIS 4 169813, 13. The Court has reconsidered that determination. When a court has diversity 5 jurisdiction over a state-law claim, the Anti-SLAPP Motion is recognized as a substantive element 6 of the state law a federal court is bound to apply. U.S. ex rel. Newsham v. Lockheed Missiles & 7 Space Co., Inc., 190 F.3d 963, 973 (9th Cir. 1999); see also Batzel v. Smith, 333 F.3d 1018, 1025- 8 26 (9th Cir. 2003) (federal courts sitting in diversity “recognize[] the protection of the anti-SLAPP 9 statute as a substantive immunity from suit”). But where, as here, the Court has declined to exercise jurisdiction over state-law claims, defendants have no presumptive right to have Anti- 11 United States District Court Northern District of California 10 SLAPP Motions heard by a federal court. Therefore, the Court will deny both Defendants’ Anti- 12 SLAPP Motions without prejudice towards Defendants raising them in any future state-court 13 proceeding. 14 The Court also VACATES the portion of its Previous Order addressing Defendants’ Anti- 15 SLAPP Motion. Previous Order 7:16-16:5, 2013 WL 6234628, at *4-10, 2013 U.S. Dist. LEXIS 16 169813, 13-33. 17 IV. CONCLUSION 18 Defendants’ motions are GRANTED IN PART and DENIED IN PART. Plaintiff’s 19 copyright cause of action is DISMISSED WITH PREJUDICE. The Court will not exercise 20 jurisdiction over the defamation and libel claims in this action, and so Defendant’s motion to 21 dismiss those claims, and to specially strike those claims pursuant to the anti-SLAPP statute, are 22 dismissed without prejudice towards Defendants re-making them in any state-court proceeding. 23 24 25 26 27 28 Defendants shall submit a proposed order of judgment consistent with this order. The Clerk shall close the file. IT IS SO ORDERED. Dated: June 2, 2014 ______________________________________ JON S. TIGAR United States District Judge 10
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