Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 1 of 17
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`GARY CASTERLOW-BEY,
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`CASE NO. 3:17-cv-05459-RJB
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`v.
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`Plaintiff,
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`ORDER GRANTING MOTION
`FOR SUMMARY JUDGMENT
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`TRAFFORD PUBLISHING
`COMPANY,
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`Defendant.
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`This matter comes before the Court on Defendant Trafford Publishing Company’s
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`(“Trafford”) Motion for Summary Judgment. Dkt. 51. The Court has considered the pleadings
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`filed regarding the motion and the remainder of the record herein.
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`This case arises from the Defendant’s alleged failure to pay pro se Plaintiff Gary
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`Casterlow-Bey royalties on books he authored. Dkt. 7. Defendant now moves for summary
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`dismissal of the claims asserted against it pursuant to Fed. R. Civ. P. 56. Dkt. 51. Plaintiff was
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`given a notice pursuant to Rand v. Rowland, 154 F.3d 952 (9th Cir 1998) on June 29, 2018. Dkt.
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`56. Plaintiff filed two responses to the motion. Dkts. 55 and 57. The motion for summary
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 1
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 2 of 17
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`judgment (Dkt. 51) should be granted because Plaintiff’s claims are barred by res judicata,
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`Plaintiff fails to point to genuine issues of material fact, and Defendant is entitled to a judgment
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`of dismissal as a matter of law.
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`I.
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`BACKGROUND FACTS AND PROCEDURAL HISTORY
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`A. BACKGROUND FACTS
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`In 2006, Plaintiff contracted with Trafford Holdings, Ltd. (“Trafford”) to self-publish his
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`book Through the Eyes of a Gangster; and in 2008, he contracted with Trafford to self-publish
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`Through the Eyes of a Gangster II. Dkts. 7 at 2 and 53-2, at 1-2. (According to the Defendant,
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`“Trafford Publishing Company,” the named Defendant in this case, never existed. Dkt. 53, at 1.
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`The Defendant has construed the Complaint as referring to “Trafford Publishing,” which,
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`Defendant maintains, is the trade name of Get Published! LLC, which is a subsidiary of Author
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`Solutions, LLC. Id. In 2009, Trafford’s assets were purchased by what is now Author Solutions,
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`LLC. Id. Plaintiff offers no evidence to the contrary. Accordingly, the Court will construe the
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`claims made in the Complaint against the answering Defendant Trafford Publishing.) Trafford
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`states that, “[a]s a result of the 2009 transaction and the passage of time, Trafford does not have a
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`copy of Plaintiff’s signed contracts for his first two novels.” Dkt. 53, at 2. The record contains a
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`copy of the form contracts used at the time. Dkt. 53.
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`Plaintiff acknowledges in the Complaint that he and Trafford “reached another
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`agreement,” in 2014, to publish a third book, Wildflower. Dkt. 7, at 2. On December 7, 2013,
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`Plaintiff entered (via an electronic signature) an Author Agreement to Trafford[’s] Terms and
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`Conditions (Dkt. 53-3) and an Installment Payment Agreement (Dkt. 53-4). Plaintiff paid an
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`initial payment of $500.00, and agreed to pay a remaining $940.00 in two monthly installments
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`to purchase Trafford’s “Tablet Black & White Publishing Package.” Dkt. 53, 53-2, 53-3 and 53-
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 2
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 3 of 17
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`4. Plaintiff defaulted on this plan, and Trafford agreed to allow Plaintiff to buy a discounted
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`Novo package in April of 2014. Dkts. 53, at 4; 53-5, and 53-6, at 4.
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`In May of 2014, Trafford states that Plaintiff informed it he was in jail and was given
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`information about a niece who would help him. Dkt. 53-6, at 2.
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`Trafford asserts that on June 28, 2014, Plaintiff entered into a Service Agreement, which
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`replaced the December 7, 2013 Author Agreement. Dkt. 53, at 3. In support of its’ motion for
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`summary judgment, Trafford points to this June 28, 2014 contract, entitled “Self-Publishing
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`Services Agreement,” containing Plaintiff’s electronic signature, an address of “15007
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`Weststorm LN SW, Lakewood, WA 98498,” and an email address of
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`“garycasterlow@78gmail.com.” Dkt. 53-7.
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`Plaintiff contends that the June 28, 2014 contract in Trafford’s records is “falsified and
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`forged” and that he did not sign it. Dkt. 57, at 1. He contends that the “Weststorm Lane”
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`address in Lakewood, Washington and the listed phone number do not exist. Id. Plaintiff
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`maintains he was in jail at the time, and could not have signed this document. Dkt. 55, at 2.
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`On July 25, 2014, from the email address on the June 28, 2014 contract, Plaintiff emailed
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`Nick Arden, of Trafford, returning electronically signed copies of an “Interior Sign-Off and
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`Pricing” document and a “Cover Sign-Off,” regarding Wildflower, which, in part, provided that:
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`[b]y signing this form, I attest that the interior is ready for publication and distribution. By
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`distribution, we mean the book will be made available for public sale on retail websites like the
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`Trafford bookstore, Amazon, Barnes and Noble, and other online retail websites.” Dkt. 53-9, at
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`3-4 (emphasis in original).
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`Trafford states that it distributed all three books in accordance with the agreements with
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`Plaintiff. Dkt. 53, at 3. It notes that once a book is sold, and then offered by a third party seller,
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 3
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 4 of 17
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`Trafford has no ability to set the price and such sales do not qualify for royalty payments. Id.
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`While Plaintiff maintains in some pleadings that he “has not received a royalty payment
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`on any book sale from [Trafford] since 2009,” (Dkt. 57, at 2) in other pleadings, Plaintiff
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`acknowledges that “from 2009 until 2017[,] Plaintiff has received approximately five (5) royalty
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`payments that grossed less than $500” (Dkt. 7, at 3). Trafford’s records are in accord: between
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`January 2007 and July 2009, Plaintiff sold 116 copies of his books that resulted in $101.57 in
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`royalty payments; between October 2009 and July 2017, Plaintiff sold an additional 86 copies,
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`resulting in $173.46 in royalty payments. Id., at 28-31 and 41-44. Trafford also points to some
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`checks which were cashed by Plaintiff or his designee. Dkt. 53-11, at 1-3.
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`B. PLAINTIFF’ COMPLAINT AND DEFENDANT’S SUBSEQUENT ACTION
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`On June 14, 2017, Plaintiff, while a prisoner in the Pierce County, Washington, Jail, filed this
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`case. Dkt. 1. His Complaint makes claims for a breach of contract (for failure to pay him
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`royalties), copyright infringement, and fraud. Dkt. 7. The Complaint also asserts that the forged
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`contract “was on its face a deliberate conspiracy to deny [Plaintiff] adequate compensation for
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`his copyrighted work;” and that Trafford’s actions “rise to the level of criminal activity, i.e.
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`fraud, forgery, and criminal conspiracy.” Id. Plaintiff seeks an order requiring Trafford to
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`“cease and desist all sales” of Plaintiff’s books and $10 million in damages. Id.
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`On September 19, 2017, Trafford wrote Plaintiff a letter, construing statements made in
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`the Complaint in this case as a “notice by [Plaintiff] exercising [his] right to terminate the
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`agreements governing the publishing and selling of [his] books.” Dkt. 53, at 12. Accordingly,
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`Trafford stopped distributing all Plaintiff’s books. Id.
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`C. OTHER CASES FILED REGARDING PLAINTIFF’S BOOKS
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`This is one of several cases the Plaintiff has filed regarding his books in U.S. District
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 4
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 5 of 17
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`Court for the Western District of Washington. Casterlow-Bey v. Google.com, Inc., case number
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`17-5686 RJB Casterlow-Bey v. Ebay.com, case number 17-5687 RJB; Casterlow-Bey v. Amazon,
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`et. al., case number 17-5833 RJB; Casterlow-Bey v. Barnes and Nobles, case number 17-5834;
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`and Casterlow-Bey v. Barnes and Nobles, case number 17-5871.
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`On August 30, 2017, Plaintiff filed a case against Amazon and Google asserting they
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`committed copyright infringement when Plaintiff’s books were sold on their website.
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`Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB, Dkt. 1-1. On January 18, 2018,
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`Defendants Amazon and Google’s motions to dismiss pursuant to Fed. R. Civ. P. 12 were
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`granted and the case was dismissed with prejudice. Casterlow-Bey v. Google.com, Inc., case
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`number 17-5686 RJB, Dkt. 27.
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`On August 30, 2017, Plaintiff filed a case against Ebay.com, asserting that Ebay.com
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`committed copyright infringement, breached a contract, and committed fraud when it sold
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`Plaintiff’s books. Casterlow-Bey v. Ebay.com, case number 17-5687 RJB, Dkt. 1-1. Plaintiff
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`sought injunctive relief and several million dollars in damages in that case. Id. Ebay.com
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`moved to dismiss the claims asserted against it, in part, based on Plaintiff’s failure to show that
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`his books are registered with the U.S. Copyright Office; the motion was granted and the case was
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`dismissed with prejudice on January 8, 2018. Casterlow-Bey v. Ebay.com, case number 17-5687
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`RJB, Dkt. 25.
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`On October 13, 2017, Plaintiff filed a case against “Barnes and Nobles,” moved to
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`proceed in forma pauperis (“IFP”), and provided a proposed complaint asserting that Defendant
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`“Barnes and Nobles” committed copyright infringement, breached a contract, and committed
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`fraud when it sold Plaintiff’s books. Casterlow-Bey v. Barnes and Nobles, case number 17-5834,
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`Dkts. 1 and 1-1. Plaintiff made reference to the Racketeer Influenced and Corrupt Organizations
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 5
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 6 of 17
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`Act, 18 U.S.C. § 1962, (“RICO”). Id. Plaintiff sought several million dollars in damages. Id.
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`Barnes and Noble’s motion to dismiss was granted, Plaintiff’s claims were dismissed and the
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`case is closed. Casterlow-Bey v. Barnes and Nobles, case number 17-5834, Dkt. 20.
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`In October of 2017, Plaintiff filed Casterlow-Bey v. Barnes and Nobles, case number 17-
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`5871, moved for IFP, and provided a proposed complaint again asserting that Defendant “Barnes
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`and Nobles” committed copyright infringement, breached a contract, and committed fraud when
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`it sold Plaintiff’s books. Casterlow-Bey v. Barnes and Nobles, case number 17-5871, Dkts. 1
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`and 1-1. Plaintiff again made reference to RICO violations. Id. Plaintiff sought injunctive relief
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`and several million dollars in damages. Id. His motion for IFP was denied because the case was
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`duplicative of the other cases he had already filed. Casterlow-Bey v. Barnes and Nobles, case
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`number 17-5871, Dkt. 4. After being given an opportunity to pay the filing fee if he wished to
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`continue with the case, the case was dismissed for failure to pay the filing fee. Casterlow-Bey v.
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`Barnes and Nobles, case number 17-5871, Dkt. 5.
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`Of particular note here, Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB was
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`filed on October 13, 2017; Plaintiff’s proposed complaint in that case asserted that the
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`Defendants (Amazon.com, Google.com, Barnes and Noble.com, eBay.com and Trafford)
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`infringed on the copyrights he had on his books and violated RICO. Casterlow-Bey v. Amazon,
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`et. al., case number 17-5833 RJB, Dkts. 1 and 5. This Complaint also alleged that Trafford “has
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`a forged, fraudulent contract” for Wildflower – An Urban Tale, “signed by some unknown
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`person, with non-existent address . . . with a phone number Plaintiff has never had.” Casterlow-
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`Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 5. He maintained that this “bogus, illegal
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`contract authorizes international sales of all three books.” Id. The Plaintiff alleged that all of the
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`books’ copyrights belong to him, and the “theft, unlawful distribution of all three of these
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 6
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 7 of 17
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`copyrighted materials, done nationally and internationally by Defendants in a continuous ‘covert
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`operation’ designed to deprive Plaintiff of the royalties from sales of all three books since 2006.”
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`Id. The Plaintiff maintained that he had “proof of numerous sales from Defendants’ websites.”
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`Id. He also made reference to fraud. Id. Plaintiff sought several million dollars in damages. Id.
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`On March 19, 2018, the Defendants’ motions to dismiss in Casterlow-Bey v. Amazon, et.
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`al., case number 17-5833 RJB were granted, Plaintiff’s claims were dismissed with prejudice,
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`and the case closed. Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 58.
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`Plaintiff’s claims for copyright violations were dismissed because Plaintiff failed to demonstrate
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`that he had a copyright on any book other than Wildflower and he failed to allege any facts in
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`support of a claim for violation of the Copyright Act. Id. Plaintiff’s RICO claim was dismissed
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`because he failed to identify any RICO predicate acts. Id. His claims for fraud were dismissed
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`because he failed to plead any facts which would support his claim of fraud against any of the
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`Defendants, much less with particularity. Id. In declining to give Plaintiff leave to amend, the
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`undersigned found:
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`At this stage, it is absolutely clear that no amendment can cure the defects in
`Plaintiff’s Complaint. In two other cases, Plaintiff was notified of the deficiencies
`in the complaints (which are the same deficiencies here against some of the same
`Defendants here) and given leave to amend. Casterlow-Bey v. Ebay.com, case
`number 17-5687 RJB, Dkts. 21 and 25; and Casterlow-Bey v. Google.com, Inc.,
`case number 17-5686 RJB, Dkts. 25 and 27. He did not do so in either case, and
`so the cases were dismissed with prejudice. Id. Further, Plaintiff did not respond
`to Barnes and Noble’s motion to dismiss Plaintiff’s claims for copyright
`infringement and RICO violations in Casterlow-Bey v. Barnes and Nobles, case
`number 17-5834. (The grounds for the motion to dismiss there were the same or
`similar to the issues raised in this case and in Casterlow-Bey v. Ebay.com, case
`number 17-5687 RJB, Dkts. 21 and 25; and Casterlow-Bey v. Google.com, Inc.,
`number 17-5686 RJB.) Accordingly, case number 17-5834 was dismissed with
`prejudice. Defendants have filed separate replies in this case each time the
`motions to dismiss were ripe for review or where, due to Plaintiff’s late filings,
`Defendants assumed Plaintiff was not going to respond. Dkts. 44-47; 49-51 and
`53-57. Plaintiff has been given multiple warnings and has failed to address the
`basic deficiencies in any of his complaints, including the one filed in this case.
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 7
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 8 of 17
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`Accordingly, Plaintiff should not be given leave to amend. The claims should be
`dismissed with prejudice and the case closed.
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`Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 58.
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`Plaintiff did not appeal the dismissals in any of the cases filed regarding his books.
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`Casterlow-Bey v. Google.com, Inc., case number 17-5686 RJB Casterlow-Bey v. Ebay.com, case
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`number 17-5687 RJB; Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB; Casterlow-
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`Bey v. Barnes and Nobles, case number 17-5834; and Casterlow-Bey v. Barnes and Nobles, case
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`number 17-5871.
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`D. TRAFFORD’S MOTION FOR SUMMARY JUDGMENT
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`In its motion for summary judgment, Trafford argues that the claims asserted against it
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`should be dismissed because they are barred by res judicata because the claims were raised or
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`could have been raised in Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB. Dkt. 51.
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`Trafford argues that even if res judicata did not bar Plaintiff’s claims, Plaintiff cannot show that
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`there are issues of fact as to any of his claims; Trafford argues that it is entitled to a judgment as
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`a matter of law. Id.
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`Plaintiff responds and argues that his claims are not barred by res judicata because the
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`claims filed in this case were filed six months before the claims in Casterlow-Bey v. Amazon, et.
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`al., number 17-5833 RJB. Dkts. 55 and 57. He again asserts that he did not sign the June 28,
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`2014 contract, that the signature is a forgery, and that any checks sent to the address on the
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`contract would have been returned because no such address existed. Id. Plaintiff argues that he
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`“has not received a royalty payment on any book sales from [Trafford] since 2009 while there is
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`evidence of both national and international sales of all Casterlow-Bey books.” Dkt. 57, at 2.
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`Plaintiff attaches documents to his responses that he asserts demonstrates the continued global
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`sales of his books. Dkts. 55 and 57.
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 8
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 9 of 17
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` Trafford filed a reply and the motion is ripe for consideration.
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`E. ORGANIZATION OF OPINION
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`This opinion will first provide the standard on a motion for summary judgment, address
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`whether the claims are barred by res judicata and lastly, whether the motion for summary
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`judgment should be granted, by claim.
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`A. MOTION FOR SUMMARY JUDGMENT STANDARD
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`II.
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`DISCUSSION
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`Summary judgment is proper only if the pleadings, the discovery and disclosure materials on
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`file, and any affidavits show that there is no genuine issue as to any material fact and that the
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`movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56 (c). The moving party is
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`entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient
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`showing on an essential element of a claim in the case on which the nonmoving party has the
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`burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue
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`of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find
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`for the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586
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`(1986)(nonmoving party must present specific, significant probative evidence, not simply “some
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`metaphysical doubt.”). See also Fed. R. Civ. P. 56 (d). Conversely, a genuine dispute over a
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`material fact exists if there is sufficient evidence supporting the claimed factual dispute,
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`requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors
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`Association, 809 F.2d 626, 630 (9th Cir. 1987).
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`The determination of the existence of a material fact is often a close question. The court
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`must consider the substantive evidentiary burden that the nonmoving party must meet at trial –
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 9
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 10 of 17
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`e.g., a preponderance of the evidence in most civil cases. Anderson, 477 U.S. at 254, T.W. Elect.
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`Service Inc., 809 F.2d at 630. The court must resolve any factual issues of controversy in favor
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`of the nonmoving party only when the facts specifically attested by that party contradict facts
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`specifically attested by the moving party. The nonmoving party may not merely state that it will
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`discredit the moving party’s evidence at trial, in the hopes that evidence can be developed at trial
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`to support the claim. T.W. Elect. Service Inc., 809 F.2d at 630 (relying on Anderson, supra).
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`Conclusory, non-specific statements in affidavits are not sufficient, and “missing facts” will not
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`be “presumed.” Lujan v. National Wildlife Federation, 497 U.S. 871, 888-89 (1990).
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`B. RES JUDICATA
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`Res judicata “precludes lawsuits on any claims that were raised or could have been raised in
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`a prior action.” Stewart v. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Res judicata applies
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`where there is: “1) an identity of claims, 2) a final judgment on the merits, and 3) privity between
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`the parties.” Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg’l Planning Agency, 322 F.3d 1064,
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`1077 (9th Cir. 2003).
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`1. Identity of Claims
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`Determining whether there is an identity of claims requires consideration of four
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`criteria, which are not applied “mechanistically:”
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`(1) whether the two suits arise out of the same transactional nucleus of facts; (2)
`whether rights or interests established in the prior judgment would be destroyed or
`impaired by prosecution of the second action; (3) whether the two suits involve
`infringement of the same right; and (4) whether substantially the same evidence is
`presented in the two actions.
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`Mpoyo v Litton Electro-Optical Sys., 430 F.3d 985, 987 (9th Cir. 2005). “We have often
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`held the common nucleus criterion to be outcome determinative under the first res
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`judicata element.” Id. “Whether two events are part of the same transaction or series
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 10
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 11 of 17
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`depends on whether they are related to the same set of facts and whether they could
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`conveniently be tried together.” Western Sys., Inc. v. Ulloa, 958 F.2d 864, 871 (9th Cir.
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`1992)(citing Restatement (Second) Judgments § 24(2) (1982)).
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`Consideration of these factors counsels that there is an identity of claims in this case
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`and in Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB. Plaintiff’s claims for
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`copyright infringement, fraud, and conspiracy under RICO were dismissed with prejudice
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`in Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB, Dkt. 58. Plaintiff makes
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`additional claim in this case for breach of contract – for the alleged failure to pay him
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`royalties. Dkt. 7. This claim and all the others arise out of the same transactional nucleus
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`of facts - Trafford’s and the other’s alleged distribution of Plaintiff’s books and failure to
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`properly pay Plaintiff. All the claims in this case, including the he breach of contract
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`claim, “could have been raised in a prior action,” Stewart, 297 F.3d at 956, and
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`conveniently tried in his prior case.
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` Further, while the second and third factors do not appear to favor or disfavor
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`application of the doctrine, the fourth factor (substantially the same evidence) favors a
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`finding that there is an identity of claims. Accordingly, there is an identity of claims in
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`this case and in Casterlow-Bey v. Amazon, et. al., case number 17-5833 RJB and so this
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`element of res judicata is met.
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`2. Final Judgment on the Merits
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`In order to be barred by res judicata, there must be a final decision on the merits. Tahoe-
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`Sierra, at 1077. “[A] dismissal for failure to state a claim under Rule 12 (b)(6) is a ‘judgment on
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`the merits’ to which res judicata applies.” Steward v. U.S. Bancorp, 297 F.3d 953, 957 (9th Cir.
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`2002)(internal citation omitted).
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 11
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`There was a final judgment on the merits in Casterlow-Bey v. Amazon, et. al., case
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`number 17-5833 RJB, Dkt. 58. In Casterlow-Bey v. Amazon, Plaintiff’s claims were dismissed
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`with prejudice and over his objections. Casterlow-Bey v. Amazon, et. al., case number 17-5833
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`RJB, Dkt. 58. Plaintiff was not given leave to amend. He was given multiple warnings and
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`failed to address the basic deficiencies in any of his complaints, including the one filed in that
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`case - Casterlow-Bey v. Amazon, et. al. Certainly, the dismissal was involuntary. An
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`“involuntary dismissal generally acts as a judgment on the merits for the purposes of res
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`judicata.” Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 714 (9th Cir. 2001)(internal
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`quotation marks and citation omitted)(holding that, unless otherwise specified, a dismissal for
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`failure to prosecute under Fed. R. Civ. P. 41 (b) was a final judgment on the merits). The
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`dismissal of the claims with prejudice in Casterlow-Bey v. Amazon, et. al., case number 17-5833
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`RJB was a final judgment on the merits. This element of res judicata is met.
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`3. Privity Between the Parties
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`Plaintiff and Defendant Trafford were parties in Casterlow-Bey v. Amazon, et. al., case
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`number 17-5833 RJB. This element, that there be privity between the parties in this case and in
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`the prior litigation, is met.
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`4. Conclusion on Motion for Summary Judgment Based on Res Judicata
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`Plaintiff’s claims against Trafford are barred by res judicata. Even though Plaintiff argues
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`that this case was filed first, and so can’t be barred by res judicata, it is not the date the cases
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`were filed, but the date that the judgment is entered that controls. Americana Fabrics, Inc. v. L
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`& L Textiles, Inc., 754 F.2d 1524, 1529 (9th Cir. 1985).
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`C. MOTION FOR SUMMARY JUDGMENT BY CLAIM
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`1. Breach of Contract
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 12
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 13 of 17
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`To maintain a claim in Washington for breach of contract, a Plaintiff must show: the
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`existence of a valid contract, a breach of the contract, and damages. See Meyers v. State, 152
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`Wash. App. 823, 827, 828 (2009).
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`Plaintiff argues that there is no valid contract between Trafford and himself in regard to
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`Wildflower. Dkts. 55 and 57. Accordingly, construing the facts in Plaintiff’s favor and giving
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`him every inference reasonably possible, Plaintiff has failed to demonstrate a key element: that
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`there was a “valid contract.”
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`Even assuming that there was a valid contract between the parties, Washington’s six year
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`statute of limitation on contracts (RCW 4.16.040) bars claims for failure to pay royalties before
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`June of 2011.
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`Further, Plaintiff fails to point to evidence that Trafford breached the contract. Plaintiff
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`alternatively argues that he has received no royalty payments and then states that the payments
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`he received were less than $500.00. Dkts. 7, 55 and 57. He offers no evidence that he was paid
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`less than he was due. He points to websites that list his book for more than the selling price he
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`and Trafford agreed upon. Dkts. 7, 55 and 57. There is no showing that the contract between
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`Plaintiff and Trafford govern these third-party seller’s transactions.
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`Plaintiff has also failed to demonstrate damages. Trafford points out that Plaintiff cashed
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`royalty checks and Plaintiff (at times) acknowledges that he received royalty payments. After
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`this lawsuit was filed, Trafford stopped distributing his books, alleviating the need for the
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`injunctive relief sought in the Complaint.
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` Plaintiff failed to point to issues of fact on any of the elements of his contract claim. It
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`should be dismissed.
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`2. Copyright Infringement
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 13
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`a. Subject Matter Jurisdiction
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`Under the Copyright Act, “no civil action for infringement of the copyright in any United
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`States work shall be instituted until preregistration or registration of the copyright claim has been
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`made in accordance with this title.” 17 U.S.C. § 411(a). “A district court does not have subject
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`matter jurisdiction over an infringement claim until the Copyright Office grants the registration
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`application and issues a certificate of registration.” Corbis Corp., v. Amazon.com, Inc., 351
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`F.Supp.2d 1090, 1112, 77 U.S.P.Q.2d 1182 (W.D.Wash. 2004); Safeair, Inc. v. Airtran Airways,
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`Inc., 09-5053RJB, 2009 WL 801754, at *2 (W.D. Wash. Mar. 25, 2009).
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`As the undersigned noted in orders dismissing four other cases, Plaintiff does not allege that
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`he has certificates of registration from the Copyright Office on any of his books in his complaint.
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`A review of the records of the U.S. Copyright Office shows that only one book, Wildflower, is
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`registered with the U.S. Copyright Office to Plaintiff Gary Casterlow-Bey; with the registration
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`number: TXu001644896; date: 07-31-2009. Pursuant to Federal Rule of Evidence 201 (b)(2), a
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`“court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be
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`accurately and readily determined from sources whose accuracy cannot reasonably be
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`questioned.” The “court may take judicial notice on its own” . . . but if the “court takes judicial
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`notice before notifying a party, the party, on request, is still entitled to be heard.” Federal Rule of
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`Evidence 201 (c)(1) and (e). “Judicial notice is appropriate for records and reports of
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`administrative bodies.” United States v. 14.02 Acres of Land More or Less in Fresno Cty., 547
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`F.3d 943, 955 (9th Cir. 2008).
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`To the extent that Plaintiff makes a claim for copyright infringement against Defendant for
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`any book other than Wildflower, the claim should be dismissed for lack of subject matter
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`jurisdiction. Moreover, this is the fifth time Plaintiff has been informed of this burden, and he
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 14
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`Case 3:17-cv-05459-RJB Document 59 Filed 07/31/18 Page 15 of 17
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`has again failed to provide evidence of certificates of registration. Plaintiff cannot simply rely on
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`his own allegations to demonstrate that the Court has subject matter jurisdiction. Plaintiff’s claim
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`for copyright infringement against Defendant for Through the Eyes of a Gangster and Through
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`the Eyes of a Gangster II should be dismissed.
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`b. Copyright Infringement on the Merits for Wildflower
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`Under the Copyright Act, copyright owners have the exclusive right to do or authorize the
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`following:
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`(1) to reproduce the copyrighted work in copies or phonorecords;
`(2) to prepare derivative works based upon copyrighted work;
`(3) to distribute copies or phonorecords of the copyrighted work to the public by
`sale or other transfer of ownership, or by rental, lease, or lending;
`(4) in the case of literary, musical, dramatic, and choreographic works,
`pantomimes, and motion pictures and other audiovisual works, to perform the
`copyrighted work publically;
`(5) in the case of literary, musical, dramatic, and choreographic works,
`pantomimes, and pictorial, graphic, or sculptural works, including the
`individual images of a motion picture or other audiovisual work, to display the
`copyrighted work publicly; and
`(6) in the case of sound recordings, to perform the copyrighted work publicly by
`means of a digital audio transmission.
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`17 U.S.C. § 106. “Plaintiffs must satisfy two requirements to present a prima facie case of direct
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`infringement: (1) they must show ownership of the allegedly infringed material and (2) they must
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`demonstrate that the alleged infringers violate at least one exclusive right granted to copyright
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`holders under 17 U.S.C. § 106.” Perfect 10, Inc. v. Amazon.com, Inc., 508 F.3d 1146, 1159 (9th
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`Cir. 2007).
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`To the extent he makes them, Plaintiff’s claims for copyright infringement against Trafford
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`should be dismissed. Plaintiff has failed to point to any evidence that Trafford violated at least
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`one of the rights granted under § 106. He does not give any details – only non-specific
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`allegations that the Defendant sold his books both nationally and internationally and did not pay
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`ORDER GRANTING MOTION FOR SUMMARY
`JUDGMENT- 15
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`Case 3:17-cv-05459-RJB D