Case5:05-cv-01362-HRL Document21 Filed06/29/05 Page1 of 11
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`NOT FOR CITATION
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`IN THE UNITED STATES DISTRICT COURT
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`FOR THE NORTHERN DISTRICT OF CALIFORNIA
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`SAN JOSE DIVISION
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`BORIS KANTEMIROV,
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`No. C05-01362 HRL
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`ORDER GRANTING PLAINTIFF
`KANTEMIROV’S MOTION TO DISMISS
`DEFENDANT GOLDINE’S
`COUNTERCLAIMS WITH LEAVE TO
`AMEND
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`[Re: Docket No. 10]
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`Plaintiff,
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` v.
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`BARRY GOLDINE, d/b/a/ BIGWHEELS.NET,
`and DOES 1-25,
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`Defendants.
` /
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`BARRY GOLDINE,
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`Plaintiff,
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` v.
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`BORIS KANTEMIROV, SKIP LIGHTFOOT
`and DOES 1-50,
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`Defendants.
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` /
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`Plaintiff Boris Kantemirov moves to dismiss the counterclaim for copyright infringement filed
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`by defendant Barry Goldine. Counterdefendant Skip Lightfoot joined in the motion. Defendant Barry
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`Goldine, d/b/a Bigwheels.Net, opposed the motion. Kantemirov did not file a reply. Having
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`Case5:05-cv-01362-HRL Document21 Filed06/29/05 Page2 of 11
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`considered the papers filed by the parties, as well as the arguments presented at the June 28, 2005
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`hearing, the court grants the motion with leave to amend.1
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`I. BACKGROUND
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`Defendant/counterclaimant Barry Goldine says that he is in the business of selling wheels, tires
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`and related accessories, and that he owns and operates a website with the domain name
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`“www.bigwheels.net” (Bigwheels) as part of his off-line business Adds Wheel Warehouse.
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`Kantemirov claims that in February 2002, he and Goldine formed an implied partnership to increase
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`internet traffic for Goldine’s business. Under this agreement, Kantemirov alleges that he was to, and
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`did, create a functional and operative website to sell Goldine’s wheels. He further alleges that the
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`profits were to be split evenly with Goldine after cost of goods, taxes and shipping were deducted, but
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`that no labor or any other expenses were to be deducted. Kantemirov claims that Goldine breached
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`this agreement by (1) repeatedly and unilaterally renegotiating profit divisions; and (2) deducting labor,
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`supplies and other expenses before calculating the profits to be split, resulting in lower payments to
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`Kantemirov despite the alleged increasing volume of sales generated by the website. Additionally,
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`Kantemirov alleges that Goldine surreptitiously copied all of the data from the Bigwheels website, and
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`then shut down the website and terminated plaintiff’s employment. Goldine allegedly later re-opened
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`the Bigwheels website using the same layout and design created by Kantemirov, with the exception of
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`a few color changes.
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`Goldine denies that he ever had a business partnership with Kantemirov. Rather, he claims
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`that (1) he engaged Kantemirov as a website developer to enhance the Bigwheels website to attract
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`more internet traffic, and (2) the parties agreed that any and all intellectual property developed by
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`Kantemirov for Bigwheels was work-for-hire belonging solely to Goldine. Goldine further alleges that
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`he paid all expenses submitted by Kantemirov, but that Kantemirov threatened to shut down all of the
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`servers for the Bigwheels website in an effort to extort more money from him. Goldine also claims
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`while working for Bigwheels, Kantemirov began to work on competing business with
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`counterdefendant Skip Lightfoot and, in the process, misappropriated Goldine’s database containing
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`Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have expressly
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`consented that all proceedings in this matter may be heard and finally adjudicated by the
`undersigned.
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`Case5:05-cv-01362-HRL Document21 Filed06/29/05 Page3 of 11
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`“tens of thousands [of] specifications for fitting different kinds of vehicles with oversized wheels and
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`tires as accumulated and compiled by Goldine during his more than 20 years of industry experience.”
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`(Counterclaim, ¶ 78).
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`On March 2, 2005, Kantemirov filed the instant action in Santa Clara County Superior Court
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`alleging claims for (1) breach of implied contract, (2) breach of the implied covenant of good faith and
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`fair dealing, (3) breach of implied contract for failure to perform, (4) fraud (intentional
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`misrepresentation), (5) conversion, (6) unjust enrichment and (7) misappropriation of ideas.
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`On April 5, 2005, Goldine removed the matter to this court asserting federal question
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`jurisdiction under the Copyright Act, 17 U.S.C. § 101, et seq. On April 6, 2005, he filed a
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`counterclaim against Kantemirov for breach of contract. He also filed counterclaims against
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`Kantemirov and Lightfoot for (1) copyright infringement, (2) unfair competition under Cal. Bus. &
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`Prof. Code § 17200, et seq., (3) misappropriation of trade secrets, (4) common law
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`misappropriation, (5) common law unfair competition and (6) civil conspiracy.
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`Pursuant to Fed.R.Civ.P. 12(b)(1), Kantemirov now moves for dismissal of Goldine’s
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`counterclaims and for an order remanding this action to state court. He argues that this court lacks
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`subject matter jurisdiction over Goldine’s counterclaim for copyright infringement – and therefore also
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`lacks jurisdiction over his asserted state law counterclaims – because Goldine has failed to allege
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`registration of the claimed copyright. Goldine contends that this court has jurisdiction because (1)
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`federal question jurisdiction exists based upon preemption of Kantemirov’s claims under the Copyright
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`Act; and (2) he has complied with the registration requirements of the Copyright Act.
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`II. LEGAL STANDARD
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`“Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction
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`of the subject matter, the court shall dismiss the action.” FED. R. CIV. P. 12(h)(3). A lack of
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`jurisdiction is presumed unless the party asserting jurisdiction establishes that it exists. See Kokkonen
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`v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994) (“It is to be presumed that a cause
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`lies outside [a federal court’s] limited jurisdiction . . . and the burden of establishing the contrary rests
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`upon the party asserting jurisdiction”); see also Stock West, Inc. v. Confederated Tribes, 873 F.2d
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`1221, 1225 (9th Cir. 1989) (“A federal court is presumed to lack jurisdiction in a particular case
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`unless the contrary affirmatively appears”).
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`“A jurisdictional challenge under Rule 12(b)(1) may be made either on the face of the
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`pleadings or by presenting extrinsic evidence.” Warren v. Fox Family Worldwide, Inc., 328 F.3d
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`1136, 1139 (9th Cir. 2003) (citing White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000)). Where a
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`party raises a facial challenge to jurisdiction, the court considers only the complaint and attached
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`documents, assumes the truth of the allegations in the pleadings, and draws all reasonable inferences in
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`the non-moving party’s favor. Gould Elecs., Inc. v. United States, 220 F.3d 169, 176 (3d Cir.
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`2000). Where a party raises a factual attack on jurisdiction, the court may consider evidence outside
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`the pleadings, and no presumption of truthfulness attaches to the allegations in the complaint. Id; St.
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`Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989).
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`In this case, Kantemirov’s motion appeared to raise a facial attack on jurisdiction based on the
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`failure to allege copyright registration. In his opposition, Goldine submitted extrinsic evidence as to his
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`purported compliance with registration requirements under the Copyright Act. Because the papers
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`submitted by the parties raise factual issues which implicate this court’s ability to adjudicate this action,
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`and given the court’s independent obligation to ensure that it properly may exercise jurisdiction over a
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`given matter, the instant dispute will be treated as a factual attack on jurisdiction. Accordingly, the
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`court will consider evidence outside the pleadings, and no presumption of truthfulness will be given to
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`the allegations in Goldine’s counterclaims.
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`III. DISCUSSION
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`A. Whether Removal was Proper
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`Preliminarily, the court notes that Kantemirov’s motion to dismiss focuses solely on this court’s
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`jurisdiction over Goldine’s counterclaim and requests remand without addressing whether this matter
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`properly was removed in the first instance. Because the instant motion implicates this court’s subject
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`matter jurisdiction over this action, the court will first address whether removal was proper before
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`turning to the merits of Kantemirov’s motion.
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`As a general rule, an action is removable to a federal court only if it might have been brought
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`there originally. 28 U.S.C. § 1441(a). Federal district courts “have original jurisdiction of all civil
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`actions arising under the Constitution, laws, or treaties of the United States” (28 U.S.C. § 1331) and
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`exclusive jurisdiction over any action brought under federal copyright law (28 U.S.C. § 1338(a)). A
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`case shall be remanded if at any time before final judgment, it appears that the district court lacks
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`subject matter jurisdiction. 28 U.S.C. § 1447(c).
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`For purposes of removal, absent diversity jurisdiction, “federal jurisdiction exists only when a
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`federal question is presented on the face of the plaintiff’s properly pleaded complaint.” Caterpillar,
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`Inc. v. Williams, 482 U.S. 386, 392 (1987). Under this “well-pleaded complaint” rule, “a case may
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`not be removed to federal court on the basis of a federal defense, including the defense of pre-
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`emption, even if the defense is anticipated in the plaintiff’s complaint, and even if both parties concede
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`that the federal defense is the only question truly at issue.” Id. at 393. In this case, curiously, Goldine
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`removed the matter to this court on the basis of his copyright counterclaim – which had yet to be filed
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`– asserting that Kantemirov “violates Defendant Barry Goldine’s exclusive rights under § 106 of the
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`Copyright Act of 1976, 17 U.S.C. § 106, and constitute infringement of Barry Goldine’s copyrights.”
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`(Notice of Removal, ¶ 3). Nonetheless, Goldine now argues that removal was proper on the theory
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`that several of Kantemirov’s state law claims are completely preempted by the Copyright Act.
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`“There does exist . . . an ‘independent corollary’ to the well-pleaded complaint rule . . . known
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`as the ‘complete pre-emption’ doctrine.” Caterpillar, Inc., 482 U.S. at 393. Under that doctrine,
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`“the pre-emptive force of a statute is so ‘extraordinary’ that it ‘converts an ordinary state common-law
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`complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.’” Id. (citing
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`Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58, 65 (1987)). “Once an area of state law has
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`been completely pre-empted, any claim purportedly based on that pre-empted state law is considered,
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`from its inception, a federal claim, and therefore arises under federal law.” Id. (citing Franchise Tax
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`Board of California v. Construction Laborers Vacation Trust for Southern California, 463 U.S.
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`1, 24 (1983)).
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`Courts have held that state law claims that are equivalent to federal copyright claims are
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`completely preempted by the Copyright Act. See Firoozye v. Earthlink Network, 153 F. Supp.2d
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`1115, 1121-23 (N.D. Cal. 2001); see also Rosciszewski v. Arete Associates, Inc., 1 F.3d 225,
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`232-33 (4th Cir. 1993). Thus:
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`if any of the plaintiff’s claims are preempted under the Copyright Act,
`those preempted claims must be viewed as involving federal questions
`for the purpose of the well-pleaded complaint rule. This Court would
`then possess subject matter jurisdiction over the entire complaint,
`thereby requiring the Court to deny the plaintiff’s motion for remand.
`On the other hand, if none of the plaintiff’s claims is preempted, the face
`of the plaintiff’s well-pleaded complaint would not arise under federal
`law and this Court would not have jurisdiction, compelling remand to
`state court.
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`Firoozye, 153 F. Supp.2d at 1123. Accordingly, this court now must consider whether any of
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`Kantemirov’s claims are preempted by the Copyright Act.
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`B. Whether Plaintiff’s Claims are Preempted
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`Goldine argues that Kantemirov’s claims for conversion, unjust enrichment and
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`misappropriation of ideas are completely preempted by the Copyright Act. A plaintiff’s state-law
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`claim is preempted by the Copyright Act if (1) the work involved falls within the general subject matter
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`of the Copyright Act as specified by sections 102 and 103; and (2) the rights that the plaintiff asserts
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`under state law are equivalent to those protected by the Act in section 106. 17 U.S.C. § 301(a);
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`Downing v. Abercrombie & Fitch, 265 F.3d 994, 1003 (9th Cir. 2001).
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`As for the first requirement, it is irrelevant whether the work in question is protected by
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`copyright or even qualifies for protection because “the subject matter of copyright is broader than
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`copyright protection . . ..” Firoozye, 153 F. Supp.2d at 1125. Rather, “the issue for the purpose of a
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`preemption analysis is whether the work involved is a kind of work that comes within the subject
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`matter of the Copyright Act.” Id.; see also Wrench LLC v. Taco Bell Corp., 256 F.3d 446, 455
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`(6th Cir. 2001) (“We join our sister circuits in holding that the scope of the Copyright Act’s subject
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`mater is broader than the scope of the Act’s protections”).
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`In this case, Kantemirov alleges that he “authored” the Bigwheels website and claims
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`ownership of the website “layout” and “design.” (See, e.g., Complaint, ¶¶ 48-49). Neither party has
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`cited, and the court has not found, authority holding that website design and layout fall within the
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`subject matter of the Copyright Act. Nonetheless, by its terms, the Copyright Act protects “original
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`works of authorship fixed in any tangible medium of expression, now known or later developed, from
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`which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid
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`of a machine or device.” 17 U.S.C. § 102(a). The listed category of works protected under the Act
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`include “literary works” and “pictorial, graphic, and sculptural works.” Id., § 102(a)(1) and (5). The
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`listed categories of copyrightable works are not rigid limitations on the works within the subject matter
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`of the Act. Instead, the categories comprise an “illustrative” list which “sets out the general area of
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`copyrightable subject matter, but with sufficient flexibility to free the courts from rigid or outmoded
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`concepts of the scope of particular categories.” NOTES OF COMMITTEE ON THE JUDICIARY, H.R.
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`REP. NO. 94-1476 at 53 (1976). Given the flexible definition of works falling with the scope of the
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`Copyright Act, the court concludes that the website design and layout in question falls within the
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`general subject matter of the Copyright Act.
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`In order to establish preemption, however, Goldine must also show that the rights asserted by
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`Kantemirov under state law are equivalent to those protected under section 106 of the Copyright Act
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`– i.e., rights of reproduction, performance, distribution or display. To determine whether a plaintiff
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`asserts equivalent rights:
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`a court must analyze the elements of the state-law cause of action to
`see if the right defined by state law may be abridged by an act which in
`and of itself would infringe one of the exclusive rights in the Act.
`Conversely, if there is an ‘extra element’ that is required in place of or in
`addition to the acts of reproduction, performance, distribution, or display
`in order to constitute a state-law cause of action, and the ‘extra element’
`required by state law changes the nature of the action so that it is
`qualitatively different from a copyright infringement claim, the state-law
`claim is not preempted.
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`Firoozye, 153 F. Supp.2d at 1125; see also Summit Machine Tool Mfg. Corp. v. Victor CNC
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`Sys., Inc., 7 F.3d 1434, 1439-40 (9th Cir. 1993) (stating that preemption analysis involves a
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`determination of whether the state law claim contains an element not shared by the federal law which
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`changes the nature of the action so that it is qualitatively different from a copyright infringement claim).
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`In this case, the court concludes that Kantemirov’s claims for conversion, misappropriation of
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`ideas and unjust enrichment are preempted. “Conversion is the wrongful exercise of dominion over
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`the property of another.” Burlesci v. Petersen, 68 Cal. App. 4th 1062, 1066, 80 Cal. Rptr.2d 704,
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`706 (1998). “The elements of a conversion claim are: (1) the plaintiff’s ownership or right to
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`possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property
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`rights; and (3) damages.” Id. California’s common law tort of misappropriation requires the plaintiff
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`to show that (1) he has invested substantial time and money in development of his property; (2) the
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`defendant has appropriated the property at little or no cost; and (3) he has been injured by the
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`defendant’s conduct. Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 467
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`(9th Cir. 1990) (quoting Balboa Ins. Co. v. Trans Global Equities, 218 Cal. App.3d 1327, 1342,
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`267 Cal. Rptr. 787, 795 (1990). Unjust enrichment is an equitable remedy at common law which
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`involves (1) receipt of a benefit and (2) unjustified retention of that benefit at another’s expense. See
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`First Nationwide Savings v. Perry, 11 Cal. App.4th 1657, 1662, 15 Cal. Rptr.2d 173, 176 (1992).
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`The essence of Kantemirov’s claims for conversion, unjust enrichment and misappropriation of
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`ideas2 is that he created the Bigwheels website design and layout, and that Goldine has unfairly
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`benefitted from the alleged unauthorized use of the same. (See Complaint, ¶¶ 47-61). As such, this
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`court concludes that these claims do not contain extra elements or assert rights that are qualitatively
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`different from those protected by the Copyright Act. See, e.g., Firoozye, 153 F. Supp.2d at 1128
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`(concluding that plaintiff’s unjust enrichment claim was preempted because “at its core [the claim]
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`alleges that the defendants unfairly benefitted from their unauthorized use of [plaintiff’s software
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`program]”); Zito v. Steeplechase Films, Inc., 267 F. Supp.2d 1022, 1027 (N.D. Cal. 2003)
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`(concluding that plaintiff’s state law claims for conversion and unjust enrichment were preempted
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`because they were “based on the same facts as his infringement claim”).
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`Thus, Kantemirov’s claims for conversion, unjust enrichment and misappropriation of ideas are
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`preempted, this matter properly was removed, and this court has acquired removal jurisdiction over
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`the action. Kantemirov has not presented any argument disputing preemption. At the hearing, his
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`counsel said only that Kantemirov initially chose not to pursue a copyright claim because he had not
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`registered for a copyright at the time the complaint was filed. He nevertheless expressed a desire to
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`now amend his pleading to convert his state law claims to a federal claim for copyright infringement.
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`To the extent plaintiff wishes to amend his complaint, and indicated that he properly can state a claim
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`for relief, he is given leave to do so.
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`Ideas are excluded from copyright protection. 17 U.S.C. § 102(b). Although
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`Kantemirov has titled his misappropriation claim as one for “misappropriation of ideas,” the
`allegations in his complaint indicate that he is claiming ownership of the expression of those ideas as
`presented in the Bigwheels website design and layout.
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`C. Whether Goldine’s Copyright Counterclaim Should be Dismissed
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`Goldine asserts a counterclaim for copyright infringement, alleging that Kantemirov and
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`Lightfoot have misappropriated his database containing proprietary specification information.
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`(Counterclaims, ¶¶ 105-109). Kantemirov argues that Goldine’s copyright counterclaim must be
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`dismissed because there is no allegation that Goldine has secured a copyright registration. Further, he
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`contends that if the copyright counterclaim is dismissed, then this court lacks subject matter jurisdiction
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`over the asserted state law counterclaims.
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`Copyright registration (or a denial of the same) is a jurisdictional prerequisite to bringing an
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`action for infringement under the Copyright Act. 17 U.S.C. § 411(a) (“no action for infringement of
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`the copyright in any United States work shall be instituted until registration of the copyright claim has
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`been made in accordance with this title”); Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211
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`(9th Cir. 1998).
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`In this case, Goldine’s counterclaim does not allege registration or compliance with section
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`411(a), and there was some doubt as to whether he did, in fact, satisfy the registration requirements
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`before filing his counterclaim. Accordingly, the court concludes that the copyright counterclaim must
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`be dismissed. Nevertheless, at the hearing, Goldine’s counsel represented that on June 27, 2005 –
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`i.e., the day before the hearing on the instant motion – the Copyright Office issued a certificate of
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`registration as to the matter alleged in Goldine’s counterclaims. The failure to allege registration is a
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`deficiency which may be cured. See Zito v. Steeplechase Films, Inc., 267 F. Supp.2d 1024, 1025
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`(“as a matter of efficiency, a failure to allege registration can be cured if the [claimant] registers the
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`copyright and files an amended complaint including an allegation that the copyrighted work is
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`registered”).3 Accordingly, Kantemirov’s motion to dismiss Goldine’s copyright counterclaim is
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`granted, but Goldine will be given leave to amend.
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`For the first time at the hearing, Kantemirov made an oral request for an award of
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`attorneys’ fees incurred in filing the instant motion. His counsel stated that she might not have filed
`the instant motion if Goldine had alleged, in the first instance, that he had applied for copyright
`registration. As noted at the hearing, even assuming that Kantemirov could make a proper request
`for fees, the court concludes that such an award is not warranted under the circumstances.
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`For the Northern District of California
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`Case5:05-cv-01362-HRL Document21 Filed06/29/05 Page10 of 11
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`Based on the foregoing, IT IS ORDERED THAT:
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`IV. ORDER
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`1.
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`Kantemirov is given leave to amend his complaint to state a federal claim for copyright
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`infringement in place of his preempted state law claims. The amended pleading shall be filed no later
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`than July 8, 2005.
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`2.
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`Kantemirov’s motion to dismiss Goldine’s counterclaims is GRANTED WITH
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`LEAVE TO AMEND. Goldine shall file an amended pleading no later than July 15, 2005.
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`3.
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`Kantemirov’s motion for remand is DENIED.
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`Dated:
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`HOWARD R. LLOYD
`UNITED STATES MAGISTRATE JUDGE
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`For the Northern District of California
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`United States District Court
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`Case5:05-cv-01362-HRL Document21 Filed06/29/05 Page11 of 11
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`5:05-cv-1362 Notice will be electronically mailed to:
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`Samira Ansari sansari@samiralaw.com,
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`Jingming (James) Cai jcai@flglawyer.com
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`Timothy E. Herr candteh@mylawfirm.com
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`Counsel are responsible for distributing copies of this document to co-counsel who have not registered
`for e-filing under the court’s CM/ECF program.
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