Case 2:10-cv-01343-RLH-PAL Document 45 Filed 04/15/11 Page 1 of 5
`
`UNITED STATES DISTRICT COURT
`
`DISTRICT OF NEVADA
`
`* * *
`
`Counterdefendant.
`_______________________________________
`Before the Court is Defendant/Counterclaimant Thomas A. DiBiase’s Motion to
`Dismiss (#17, filed Oct. 29, 2010) for failure to state a claim. The Court has also considered
`
`Plaintiff/Counterdefendant Righthaven, LLC’s Opposition (#29, filed Dec. 2, 2010), and DiBiase’s
`
`Reply (#35, filed Dec. 15, 2010).
`
`AO 72
`(Rev. 8/82)
`
`1
`
`Case No.: 2:10-cv-01343-RLH-PAL
`O R D E R
`
`(Motion to Dismiss–#17;
`Motion to Dismiss–#27)
`
`RIGHTHAVEN, LLC, a Nevada limited-
`liability company,
`
`Plaintiff,
`
`vs.
`
`THOMAS A. DIBIASE, an individual,
`
`Defendant.
`_______________________________________
`THOMAS A. DIBIASE, an individual,
`
`Counterclaimant,
`
`vs.
`
`RIGHTHAVEN, LLC, a Nevada limited-
`liability company,
`
`))))))))))))))))))))))
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
`
`
`9 1
`
`0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`

`
`Case 2:10-cv-01343-RLH-PAL Document 45 Filed 04/15/11 Page 2 of 5
`
`Also before the Court is Righthaven’s Motion to Dismiss (#27, filed Dec. 1, 2010)
`
`for failure to state a claim. The Court has also considered DiBiase’s Opposition (#37, filed Jan. 7,
`
`2011), and Righthaven’s Reply (#39, filed Jan. 17, 2011).
`BACKGROUND
`
`DiBiase maintains a website that publishes information regarding the prosecution of
`
`so-called “no-body” murder cases—a homicide prosecution where the victim is missing and
`
`presumed dead, but no body is found. Righthaven filed suit against DiBiase for copyright
`
`infringement alleging that DiBiase displayed a Las Vegas Review Journal article concerning a “no-
`
`body” murder case on his website. Righthaven claims to be the copyright owner of that article.
`
`Righthaven’s complaint seeks several remedies, only two of which are relevant for this order: (1)
`
`an order transferring control of the domain name of DiBiase’s website to Righthaven, and (2)
`
`attorney’s fees. DiBiase brought a counterclaim against Righthaven for declaratory relief, asking
`
`the Court to declare that he did not infringe on Righthaven’s alleged copyright.
`
`Both parties subsequently filed motions to dismiss under Rule 12(b)(6) of the
`
`Federal Rules of Civil Procedure. DiBiase’s motion is limited to a request that the Court dismiss
`
`Righthaven’s demand for transfer of his website’s domain name and for attorney’s fees.
`
`Righthaven’s motion requests the Court to dismiss DiBiase’s counterclaim. For the reasons
`
`discussed below, the Court denies Righthaven’s motion and grants DiBiase’s motion in part and
`
`denies it in part.
`
`I.
`
`Legal Standard
`
`DISCUSSION
`
`A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which
`
`relief can be granted.” Fed. R. Civ. P. 12(b)(6). Rule 12(b)(6) is an appropriate vehicle to
`challenge legally deficient remedies. See Whittlestone v. Handi-Craft Co., 618 F.3d 970, 974 (9th
`
`Cir. 2010). A properly pled complaint must provide “a short and plain statement of the claim
`
`showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). While Rule 8 does not
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
`
`
`9 1
`
`0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`AO 72
`(Rev. 8/82)
`
`2
`
`

`
`Case 2:10-cv-01343-RLH-PAL Document 45 Filed 04/15/11 Page 3 of 5
`
`require detailed factual allegations, it demands “more than labels and conclusions” or a “formulaic
`recitation of the elements of a cause of action.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
`“Factual allegations must be enough to rise above the speculative level.” Twombly, 550 U.S. at
`
`555. Thus, to survive a motion to dismiss, a complaint must contain sufficient factual matter to
`“state a claim to relief that is plausible on its face.” Iqbal, 129 S. Ct. at 1949 (internal citation
`
`omitted).
`
`In Iqbal, the Supreme Court recently clarified the two-step approach district courts
`
`are to apply when considering motions to dismiss. First, a district court must accept as true all
`
`well-pled factual allegations in the complaint; however, legal conclusions are not entitled to the
`assumption of truth. Id. at 1950. Mere recitals of the elements of a cause of action, supported only
`by conclusory statements, do not suffice. Id. at 1949. Second, a district court must consider
`whether the factual allegations in the complaint allege a plausible claim for relief. Id. at 1950. A
`
`claim is facially plausible when the plaintiff’s complaint alleges facts that allows the court to draw
`a reasonable inference that the defendant is liable for the alleged misconduct. Id. at 1949. Where
`
`the complaint does not permit the court to infer more than the mere possibility of misconduct, the
`complaint has “alleged—but not shown—that the pleader is entitled to relief.” Id. (internal
`
`quotation marks omitted). When the claims in a complaint have not crossed the line from
`conceivable to plausible, plaintiff’s complaint must be dismissed. Twombly, 550 U.S. at 570.
`II.
`DiBiase’s Motion to Dismiss
`
`As mentioned above, DiBiase’s motion is limited to a request that the Court dismiss
`
`Righthaven’s demand for an order transferring DiBiase’s website domain name to Righthaven and
`
`for attorney’s fees.
`A.
`Transfer of Domain Name
`
`Righthaven’s complaint requests the Court to direct Heritage Web Design, LLC, the
`
`current registrar of DiBiase’s website domain name (www.nobodycases.com), to lock that domain
`
`and transfer control of it to Righthaven. However, “[t]he remedies for infringement ‘are only
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
`
`
`9 1
`
`0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`AO 72
`(Rev. 8/82)
`
`3
`
`

`
`Case 2:10-cv-01343-RLH-PAL Document 45 Filed 04/15/11 Page 4 of 5
`
`those prescribed by Congress,’” Sony Corp. Of Am. v. Universal City Studios, Inc., 464 U.S. 417,
`431 (1984) (quoting Thompson v. Hubbard, 131 U.S. 123, 151 (1889)), and Congress has never
`
`expressly granted plaintiffs in copyright infringement cases the right to seize control over the
`
`defendant’s website domain. Therefore, the Court finds that Righthaven’s request for such relief
`
`fails as a matter of law and is dismissed.
`B.
`Attorney’s Fees
`
`Righthaven’s complaint also requests attorney’s fees incurred by Righthaven in this
`
`action pursuant to 17 U.S.C. § 505. Under § 505, the Court has discretion to award reasonable
`
`attorney’s fees to the prevailing party. DiBiase argues that the Court should dismiss Righthaven’s
`
`request for attorney’s fees because such relief requires an independent attorney-client relationship.
`
`DiBiase further argues that because Righthaven’s principals are its lawyers there is not an
`
`independent attorney-client relationship. Although the Court finds merit in DiBiase’s argument, it
`
`nevertheless denies his motion because any determination on attorney’s fees at this point in the
`
`litigation is simply premature.
`III.
`Righthaven’s Motion to Dismiss
`
`DiBiase’s counterclaim against Righthaven seeks a declaration by the Court that
`
`DiBiase has not infringed Righthaven’s copyright. Righthaven asks the Court to dismiss that
`
`counterclaim because it is unnecessary and duplicative of the issues already presented in
`
`Righthaven’s complaint. The Court disagrees. The Court finds that DiBiase’s counterclaim serves
`
`a useful purpose because, among other things, it will guide DiBiase’s website operations (and the
`
`operations of other, similarly situated parties) in the future. Furthermore, the Court finds that
`
`DiBiase has pled sufficient facts to make his request for declaratory relief a plausible claim.
`
`Therefore, the Court denies Righthaven’s motion.
`
`///
`
`///
`
`///
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
`
`
`9 1
`
`0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`AO 72
`(Rev. 8/82)
`
`4
`
`

`
`Case 2:10-cv-01343-RLH-PAL Document 45 Filed 04/15/11 Page 5 of 5
`
`CONCLUSION
`
`Accordingly, and for good cause appearing,
`
`IT IS HEREBY ORDERED that DiBiase’s Motion to Dismiss (#17) is GRANTED
`
`in part and DENIED in part, as described herein.
`
`IT IS FURTHER ORDERED that Righthaven’s Motion to Dismiss (#27) is
`
`DENIED.
`
`Dated: April 15, 2011
`
`____________________________________
`ROGER L. HUNT
`Chief United States District Judge
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
`
`
`9 1
`
`0
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`26
`
`AO 72
`(Rev. 8/82)
`
`5