Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`MICHI PIX,
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`CASE NO. C14-0893JLR
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`ORDER REMANDING CASE TO
`STATE COURT
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`Plaintiff,
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`v.
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`STEVE ALPER, et al.,
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`Defendants.
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`I.
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`INTRODUCTION
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`This matter comes before the court on a flurry of motions and other filings by the
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`parties to this case. (See Dkt. ## 8, 9, 10, 11, 12, 17.) In short, the parties disagree as to
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`whether this case should be in state court, federal court, or arbitration. Having
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`considered the submissions of the parties, the balance of the record, and the relevant law,
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`and no party having requested oral argument, the court GRANTS Plaintiff’s motion to
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`remand (Mot. (Dkt. # 9)) and STRIKES all other pending motions (Dkt. ## 8, 10, 12) as
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`moot.
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`ORDER- 1
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 2 of 12
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`II. BACKGROUND
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`Plaintiff Michi PIX is a movie production company. (Compl. (Dkt. # 1-2) ¶ 2.1.)
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`Michi PIX entered into a contract with Defendant Scrappy Dog Productions (“Scrappy
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`Dog”) to edit a film. (Id. ¶ 4.1; Ex. 1 (“Contract”).) Defendants Steve Alper and
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`Timothy Robinson were partners in Scrappy Dog who produced scripts, including the
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`film at issue in this case. (Id. ¶¶ 2.2-2.4.) Over the course of editing the film, Michi PIX
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`received conflicting instructions from the two partners, who increasingly disagreed over
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`the creative direction the film should take. (Id. ¶¶ 4.5-4.5.) Michi PIX claims that it is
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`still owed payment for the editing work it performed on the film. (Id. ¶¶ 4.6-4.7.)
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`Moreover, Michi PIX claims that, as the partners’ relationship soured, Michi PIX
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`received and continues to receive conflicting instructions as to who owns the drives that
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`contain the final version of the film. (Id. ¶ 4.8.) Accordingly, Michi PIX decided to
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`retain possession of the drives until it received payment of the full amount it is owed for
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`its editing work. (Id. ¶ 4.7.)
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`Last year, Mr. Alper filed an action in California state court against Maria
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`Gargiulo, a principal of Michi PIX and the director of the film, seeking possession of the
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`drives. (Id. ¶ 4.9, Ex. 3; see also Calif. Docs (Dkt. # 8-1).) In that action, Mr. Alper
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`alleged sole ownership of the film even though he had previously represented that he and
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`Mr. Robinson were co-owners of the project. (Compl. ¶¶ 4.10-11.) Ms. Gargiulo
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`explained that the tapes were in the possession of Michi PIX, not her. (See Gargiulo
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`Decl. (Dkt. # 18-1) at 3.) Because the contract between Michi PIX and Scrappy Dog
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`requires that conflicts between those two parties be resolved by binding arbitration (see
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 3 of 12
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`Contract at 2), the California state court stayed Mr. Alper’s action until arbitration
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`between Michi PIX and Scrappy Dog was complete. (Id. ¶ 4.12, Ex. 5.)
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`Michi PIX then filed this action in interpleader against Scrappy Dog, Mr. Alper,
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`and Mr. Robinson in King County Superior Court, requesting a judicial determination of
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`(1) which defendant was entitled to possession of the drives and (2) with which party
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`Michi PIX should arbitrate to receive payment for its editing work. (Id. ¶ 1.1.) Mr. Alper
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`was served with the complaint on May 22, 2014. (See Not. of Rem. (Dkt. # 1-1).)
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`Appearing pro se and in forma pauperis, he removed the action to this court and then
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`filed a motion to dismiss and to compel arbitration. (Id.; Dkt. # 8.) Shortly thereafter,
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`Michi PIX filed a motion to remand the case. (See Mot.) In addition, Mr. Robinson, also
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`appearing pro se, filed two “Declarations in Opposition” testifying that he does not
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`consent to removal of the case to federal court. (See 1st Robinson Decl. (Dkt. # 11) ¶ 5;
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`2d Robinson Decl. (Dkt. # 17) ¶ 2.)
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`On July 16, 2014, in an attempt to rectify deficiencies identified by Michi PIX’s
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`motion to remand, Mr. Alper filed an “Amended Notice of Removal of Action,” in which
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`he purported to “hereby amend[] the removal of action pursuant to 28 U.S.C. 138 &
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`U.S.C. 144(b) which allows allows [sic] copyright cases to be removed regardless of
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`citizenship and all defendant’s approval.” (Mot. to Am. (Dkt. # 10).) On July 21, 2014,
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`Mr. Alper filed a “Notice of Correction” clarifying that his Amended Notice of Removal
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`actually alleges that Mr. Alper and Mr. Robinson are citizens—not just residents—of
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`California. (Not. (Dkt. # 12).)
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`ORDER- 3
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 4 of 12
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`III. ANALYSIS
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`The court finds that Michi PIX’s motion for remand is dispositive of the issues
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`raised by the parties’ submissions to the court.
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`A.
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`Removal Procedure
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`In general, a defendant may remove to federal court any state action over which a
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`district court would have original jurisdiction. See 28 U.S.C. § 1441; Ansley v.
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`Ameriquest Mortgage Co., 340 F.3d 858, 861 (9th Cir. 2003). If the case involves
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`multiple defendants, all defendants must join in or consent to removal of the action. 28
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`U.S.C. § 1446(b)(2)(A) (“When a civil action is removed solely under section 1441(a),
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`all defendants who have been properly joined and served must join in or consent to the
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`removal of the action.”); see also Destfino v. Reiswig, 630 F.3d 952, 956 (9th Cir. 2011)
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`(“All defendants who have been properly served in the action must join a petition for
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`removal.”) (internal punctuation omitted); Proctor v. Vishay Intertechnology Inc., 584
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`F.3d 1208, 1224 (9th Cir. 2009). This rule is equally applicable to interpleader actions.
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`See First Am. Title Co. v. Pathak, No. C 13-3947 SI, 2013 WL 6172741, at *3 (N.D. Cal.
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`Nov. 25, 2013) (finding that removal was procedurally defective because one of the
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`interpleader defendants did not consent); Adell v. Ilunga, No. CV 13-04103 DDP AJWX,
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`2013 WL 4016345, at *2 (C.D. Cal. Aug. 6, 2013) (same).
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`One exception to this “rule of unanimity” is that the rule does not apply to
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`fraudulently joined or nominal defendants. Emrich v. Touche Ross & Co., 846 F.2d
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`1190, 1193 n.1 (9th Cir. 1988). A defendant is fraudulently joined “[i]f the plaintiff fails
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`to state a cause of action against a resident defendant, and the failure is obvious according
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 5 of 12
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`to the settled rules of the state.” Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1319 (9th
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`Cir. 1998). Fraudulent joinder must be proven by clear and convincing evidence.
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`Hamilton Materials, Inc. v. Dow Chem. Corp., 494 F.3d 1203, 1206 (9th Cir. 2007). The
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`party charging fraudulent joinder bears the “heavy burden” of showing that the complaint
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`“obviously fails” to state a claim. Hunter v. Philip Morris USA, 582 F.3d 1039, 1044
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`(9th Cir. 2009). All disputed facts and ambiguities must be resolved in favor of the
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`plaintiff. Good v. Prudential Ins. Co. of Am., 5 F. Supp. 2d 804, 807 (N.D. Cal. 1998);
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`Stanbrough v. Georgia-Pac. Gypsum LLC, No. CV 08-08303GAF(AJWX), 2009 WL
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`137036, at *1 (C.D. Cal. Jan. 20, 2009). Because the court must construe the removal
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`statute strictly against removal jurisdiction, jurisdiction will be rejected if there is any
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`doubt as to the right of removal. Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992).
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`Here, Mr. Alper’s co-defendant, Mr. Robinson, did not join in Mr. Alper’s notice
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`of removal. (See Not. of Rem.) Moreover, Mr. Robinson has unambiguously testified
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`that he does not consent to removal of this action to federal court.1 (See 1st Robinson
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`Decl. ¶ 5 (“I, Timothy Robinson, OPPOSE any change of venue to the Federal Court.”);
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`2d Robinson Decl. ¶ 2 (“I OPPOSE any action to move the jurisdiction of this matter
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`from the Superior Court to the State of Washington.”)) As such, Mr. Alper’s attempt to
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`remove the action is procedurally improper.
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`1 Because Mr. Robinson is a pro se litigant, the court liberally construes his “Declarations in
`Opposition” as a motion joining Michi PIX’s motion to remand. See Bernhardt v. L.A. Cnty., 339 F.3d
`920, 925 (9th Cir. 2003) (“Courts have a duty to construe pro se pleadings liberally, including pro se
`motions[.]”)
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 6 of 12
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`Mr. Alper argues that Mr. Robinson’s lack of consent may be disregarded because
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`Mr. Robinson is fraudulently joined in this action. (Resp. (Dkt. # 15).) Mr. Alper,
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`however, fails to show by clear and convincing evidence that Michi PIX’s interpleader
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`claim against Mr. Robinson “obviously fails” as a matter of state law. See Hamilton
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`Materials, 494 F.3d at 1206; Hunter, 582 F.3d at 1044. To the contrary, Michi PIX has
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`adequately pleaded all of the elements required by Washington’s interpleader statute.
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`(Compare RCW 4.08.1602 with Compl. (alleging that Mr. Robinson and Mr. Alper both
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`claim ownership of certain property in Michi PIX’s possession).) Mr. Alper asserts that
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`Mr. Robinson does not have a valid interest in the film drives, but he puts forth no
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`evidence supporting his assertion. (See Resp. at 4.) Even if the court were to credit Mr.
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`Alper’s assertion, it would only create an issue of fact, and, at this stage, all questions of
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`fact are to be resolved in favor of Michi PIX. See Good, 5 F. Supp. 2d at 807;
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`Stanbrough, 2009 WL 137036, at *1. As such, Mr. Alper has not carried his “heavy
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`burden” to show that Mr. Robinson is fraudulently joined. See Simpson v. Union Pac. R.
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`Co., 282 F. Supp. 2d 1151, 1156 (N.D. Cal. 2003) (finding no fraudulent joinder and
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`noting the unlikelihood that the plaintiff colluded ex ante with the non-consenting
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`defendant to affect the forum). Because the defendant Mr. Robinson does not consent to
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`removal, this case must be remanded to state court. See 28 U.S.C. § 1446(b)(2)(A).
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`2 RCW 4.08.160 provides in full: “Anyone having in his or her possession, or under his or her
`control, any property or money, or being indebted, where more than one person claims to be the owner of,
`entitled to, interested in, or to have a lien on, such property, money, or indebtedness, or any part thereof,
`may commence an action in the superior court against all or any of such persons, and have their rights,
`claims, interest, or liens adjudged, determined, and adjusted in such action.”
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`ORDER- 6
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 7 of 12
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`B. Motion to Amend
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`Mr. Alper maintains that compliance with the procedural requirements of the
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`removal statute 28 U.S.C. § 1446 is unnecessary because 28 U.S.C. § 1338 grants federal
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`district courts exclusive jurisdiction over claims arising from the Copyright Act. (See
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`Resp. at 6; Mot. to Am. at 1.) This theory fails for several reasons.
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`First, Mr. Alper’s notice of removal relies solely on diversity jurisdiction under 28
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`U.S.C. § 1332 as the basis for federal jurisdiction. (Not. of Rem. at 2.) Because Mr.
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`Alper is a pro se litigant, the court liberally construes his “Amended Notice of Removal”
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`and “Notice of Correction” together as a motion to amend his notice of removal to
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`include copyright jurisdiction under 28 U.S.C. § 1338. See Bernhardt, 339 F.3d at 925.
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`A defendant seeking to remove a case to federal court must file a notice of removal
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`within thirty days of being served with the state complaint. See 28 U.S.C. § 1446(b)(1).
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`Although amendment of a notice of removal is permitted in some circumstances, the
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`Ninth Circuit has made clear that a notice of removal “cannot be amended to add a
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`separate basis for removal jurisdiction after the thirty day period.” ARCO Envtl.
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`Remediation, L.L.C. v. Dep’t of Health & Envtl. Quality of Mont., 213 F.3d 1108, 1117
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`(9th Cir. 2000) (quoting O’Halloran v. Univ. of Wash., 856 F.2d 1375, 1381 (9th Cir.
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`1988)); see also Prize Frize Inc. v. Matrix Inc., 167 F.3d 1261, 1266 (9th Cir. 1999).
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`Here, Mr. Alper was served with the complaint on May 22, 2014. (See Not. of
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`Rem.) His motion to amend was filed, at the earliest, on July 16, 2014. (See Mot. to
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`Am.) Therefore, to the extent Mr. Alper’s motion to amend seeks to add a ground for
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 8 of 12
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`jurisdiction under 28 U.S.C. § 1338, it is untimely and must be denied. See ARCO Envtl.
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`Remediation, 213 F.3d at 1117.
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`Second, even if amendment were permissible, this court does not, in fact, have
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`copyright jurisdiction over Michi PIX’s complaint. Mr. Alper argues that copyright
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`jurisdiction is appropriate because the complaint he filed in the now-stayed California
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`action alleges that he “has been deprived of the right to release and distribute [the] film
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`since March 2013,” and, under the Copyright Act, a copyright owner such as himself has
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`the exclusive right to “distribute copies . . . of the copyrighted work to the public,” 17
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`U.S.C. § 106(3). (See Resp. at 6.) The test for copyright jurisdiction, however, “is
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`essentially a reiteration of the ‘well-pleaded complaint’ rule that federal jurisdiction
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`exists only when a federal question is presented on the face of a properly pleaded
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`complaint.” JustMed, Inc. v. Byce, 600 F.3d 1118, 1124 (9th Cir. 2010). As such, the
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`existence of copyright jurisdiction in this action turns on the allegations in Michi PIX’s
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`complaint—not Mr. Alper’s complaint from a previous lawsuit.
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`Federal district courts have “original jurisdiction over any civil action arising
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`under any Act of Congress relating to . . . copyrights.” 28 U.S.C. § 1338. A civil action
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`“arises under” the Copyright Act if: “(1) the complaint asks for a remedy expressly
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`granted by the Copyright Act; (2) the complaint requires an interpretation of the
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`Copyright Act; or (3) federal principles should control the claims.” Scholastic Entm’t,
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`Inc. v. Fox Entm’t Grp., Inc., 336 F.3d 982, 986 (9th Cir. 2003). Regarding the first two
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`prongs, Michi PIX’s complaint does not ask for a remedy expressly granted by the
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`Copyright Act or require an interpretation of the Copyright Act—rather, the complaint
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`ORDER- 8
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 9 of 12
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`merely requests a determination of (1) who is liable for the payments due under Michi
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`PIX’s contract with Scrappy Dog and (2) who owns the film disks. (See generally
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`Compl.) These questions appear to be purely questions of state contract and partnership
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`law. Federal courts “have consistently dismissed complaints in copyright cases
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`presenting only questions of contract law” for lack of federal subject matter jurisdiction.
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`Scholastic, 336 F.3d at 986 (upholding dismissal of a contract dispute over a copyright
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`license); see also Segundo Suenos, LLC v. Jones, 494 F. App’x 732, 734 (9th Cir. 2012).
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`Moreover, to the extent the parties dispute ownership of the film’s copyright—as
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`opposed to merely possession of the hard copy disks on which the film is stored—claims
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`relating solely to the ownership of a given copyright are also considered matters of state
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`law. See Segundo Suenos, 494 F. App’x at 734; Scholastic, 336 F.3d at 986.
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`As to the third prong, the court is unaware of any “distinctive policy of the
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`[Copyright] Act [that] requires that federal principles control the disposition of the
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`claim.” Scholastic, 336 F.3d at 986 (quoting T.B. Harms Co. v. Eliscu, 339 F.2d 823 (2d
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`Cir. 1964)). This dispute’s alleged interference with Mr. Alper’s wish to distribute the
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`film is at best a tangential involvement with copyright law, and as such does not mandate
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`federal jurisdiction. See Simon & Flynn, Inc. v. Time Inc., 513 F.2d 832, 834 (2d Cir.
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`1975) (“The general interest that copyrights, like all other forms of property, should be
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`enjoyed by their true owner is not enough to meet this [third prong].”) Because copyright
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`jurisdiction does not appear on the face of Michi PIX’s complaint, remand is appropriate.
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`Finally, even if amendment were permissible and exclusive copyright jurisdiction
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`appeared on the face of Michi PIX’s complaint, Mr. Alper has cited no case law
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`ORDER- 9
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 10 of 12
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`supporting his contention that the procedural requirements of removal are waived in cases
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`of exclusive federal jurisdiction. To the contrary, courts “strictly construe the removal
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`statute against removal jurisdiction.” Gaus, 980 F.2d at 566. Consequently, courts have
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`consistently rejected the argument that a removing defendant does not have to comply
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`with the rule of unanimity simply because exclusive federal jurisdiction exists. See, e.g.,
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`Malone v. Malone, No. CIV 06-1629-AS, 2007 WL 789449, at *4 (D. Or. Mar. 13, 2007)
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`(finding that exclusive federal jurisdiction did not erase the requirement that all
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`defendants must join in the notice of removal).3 For this reason also, remand is
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`appropriate.
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`C.
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`Fees
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`Michi PIX requests an award of the costs and attorney’s fees that it incurred as a
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`result of Mr. Alper’s removal. (Mot. at 5-6.) “An order remanding a removed case to
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`state court ‘may require payment of just costs and any actual expenses, including attorney
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`fees, incurred as a result of the removal.’” Martin, 546 U.S. at 134 (quoting 28 U.S.C.
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`§ 1447(c)). The Supreme Court has clarified that, “absent unusual circumstances,
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`attorney’s fees should not be awarded when the removing party has an objectively
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`3 See also Harbour Light Towers Ass’n, Inc. v. Ameriflood, LLC, No. 8:10-CV-2183-T33EAJ,
`2011 WL 2517222, at *6 (M.D. Fla. June 23, 2011) (finding that “although there is exclusive federal
`jurisdiction over [the claim], removal was defective under the rule of unanimity and remand is proper”);
`Bradwell v. Silk Greenhouse, Inc., 828 F. Supp. 940, 944 (M.D. Fla. 1993) (“[R]emoval is permitted only
`if the statutory requirements have been satisfied and the fact that the Court might have exclusive
`jurisdiction does not dispense with the necessity of complying with the statutory requirements.”); Brady
`v. Lovelace Health Plan, 504 F. Supp. 2d 1170, 1173 (D.N.M. 2007) (“28 U.S.C. § 1446 does not waive
`the unanimity requirement in cases of purported exclusive jurisdiction.”); see also In re Asbestos Prods.
`Liab. Litig. (No. VI), No. 2:09-CV-60001, 2009 WL 8520132, at *1 n.1 (E.D. Pa. Apr. 24, 2009)
`(remanding for failure to adhere to rule of unanimity even though there was exclusive federal jurisdiction
`over the claim); McCain v. Cahoj, 794 F. Supp. 1061, 1062 (D. Kan. 1992) (same).
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`ORDER- 10
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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 11 of 12
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`reasonable basis for removal.” Id. at 141. “[W]hen an objectively reasonable basis
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`exists, fees should be denied.” Gardner v. UICI, 508 F.3d 559, 561 (9th Cir. 2007).
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`“In determining whether to award attorneys’ fees in cases involving improper removal by
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`a pro se defendant, courts accord significant weight to the defendant’s lack of
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`representation.” Wells Fargo Bank, NA v. Hunt, No. C-10-04965 JCS, 2011 WL 445801,
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`at *5 (N.D. Cal. Feb. 3, 2011) (collecting cases and declining to award fees against pro se
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`defendant who acted in good faith).4
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`Here, although it may have been apparent to an attorney that removal was
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`procedurally improper, Mr. Alper does not have the benefit of counsel, he made an
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`earnest effort to identify and apply the relevant statutes and case law in his submissions
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`to the court, and there is no suggestion that he initiated removal for a bad faith purpose.
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`For these reasons, the court declines to award fees against Mr. Alper. See Wells Fargo,
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`2011 WL 445801, at *5.
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`IV. CONCLUSION
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`For the foregoing reasons, the court GRANTS Plaintiff’s motion to remand (Dkt.
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`# 9). The court ORDERS that:
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`4 See, e.g., OneWest Bank, FSB v. Mohr, No. C 10-00639 SBA, 2010 WL 2721437, at *3 (N.D.
`Cal. July 7, 2010) (declining to award fees because, although it would have been apparent to an attorney
`that removal lacked merit, the defendants did not have the benefit of legal counsel); Szanto v. Szanto
`Revocable Trust of 1991, No. C 10-1364 RS, 2010 WL 2280356, at *2 (N.D. Cal. June 7, 2010)
`(declining to award fees because pro se litigant’s “lack of understanding as to the specialized procedural
`hurdles involved in removal jurisdiction is understandable”); Citibank N.A. v. Ortiz, No. 08CV1301-LAB
`(RBB), 2008 WL 4771932, at *2 (S.D. Cal. Oct. 28, 2008) (declining to award fees “in consideration of
`[Defendant’s] pro se status”).
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`ORDER- 11
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`

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`Case 2:14-cv-00893-JLR Document 20 Filed 08/12/14 Page 12 of 12
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`1. Pursuant to 28 U.S.C. §§ 1447(c) and 1447(d), all further proceedings in this
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`case are REMANDED to the Superior Court for King County in the state of
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`Washington,
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`2. The Clerk of the Court shall send copies of this order to all counsel of record
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`for all parties,
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`3. Pursuant to 28 U.S.C. § 1447(c), the Clerk of the Court shall mail a certified
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`copy of the order of remand to the Clerk of the Court for the Superior Court
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`for King County, Washington,
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`4. The Clerk of the Court shall also transmit the record herein to the Clerk of the
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`Court for the Superior Court for King County, Washington,
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`5. The parties shall file nothing further in this matter, and instead are instructed
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`to seek any further relief to which they believe they are entitled from the
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`courts of the state of Washington, as may be appropriate in due course, and
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`6. The Clerk of the Court shall CLOSE this case and STRIKE all remaining
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`motions as moot (Dkt. ## 8, 10, 12).
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`Dated this 12th day of August, 2014.
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`A
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`JAMES L. ROBART
`United States District Judge
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`ORDER- 12
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