Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 1 of 9
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`WO
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`No. CV-12-08165-PCT-JAT
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`ORDER
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`Lynnell Levingston,
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`Plaintiff,
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`v.
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`Victoria L. Earle; the Law Office of
`Victoria L. Earle, LLC, an Arizona Limited
`Liability Company; Patricia V. Piburn and
`Raymon L. Piburn, husband and wife,
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`Defendants.
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`Pending before the Court are (1) Victoria L. Earle; the Law Office of Victoria L.
`Earle, LLC; and Patricia V. Piburn and Raymon L. Piburn’s (collectively, “Defendants”)
`Motion to Dismiss (Doc. 23); (2) Lynnell Levingston’s (the “Plaintiff”) Motion for Entry
`of Default (Doc. 27); (3) Plaintiff’s Motion to Compel Compliance with Rule 16 (Doc.
`29); and (4) Plaintiff’s Motion for Sanctions (Doc. 24).
`I.
`BACKGROUND
`In 2008, Plaintiff authored and published a book called The Road Memoir of
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`Corruption and Abuse of Power (the “Book”). (Doc. 22 at 2). Plaintiff later registered
`the Book with the United State Copyright Office. Id. at 3. Plaintiff also posts writings to
`a self-hosted Internet Blog entitled Three Men Make a Tiger (the “Blog”). Id. at 2.
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`On August 24, 2009, Plaintiff commenced an action for copyright infringement of
`the Book against at least some of the Defendants in the district court. (Doc. 23-5 at 2).
`While the action was pending, Plaintiff filed a Chapter 7 petition in the United States
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 2 of 9
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`Bankruptcy Court, District of Arizona. Id. In the schedule submitted to the Bankruptcy
`Court dated December 7, 3009, Plaintiff listed the Book as an asset, but Plaintiff did not
`list (1) the copyright right infringement claims related to the Book, (2) the Blog, or (3)
`the copyright infringement claim related to the Blog. (Doc. 23-2). The district court
`ultimately dismissed the copyright infringement action because Plaintiff failed to
`substitute or join the bankruptcy trustee, or alternatively, Plaintiff failed to allege that the
`action was exempt from the bankruptcy estate or abandoned by the bankruptcy trustee.
`(Doc. 23-5 at 4).
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`On August 16, 2012, Plaintiff filed a Complaint (Doc. 1) with this Court, and on
`April 29, 2013, Plaintiff filed an Amended Complaint (Doc. 22). In the Amended
`Complaint, Plaintiff stated four claims for relief: (1) copyright infringement under 17
`U.S.C. § 501, (2) contributory
`infringement, (3) civil conspiracy
`to commit
`misappropriation, and (4) violations of the Digital Millennium Copyright Act under 17
`U.S.C. § 1201(a). On May 20, 2013, Defendants filed a Motion to Dismiss. (Doc. 23).
`Plaintiff responded to Defendants Motion to Dismiss in a First Opposition (Doc. 24) and
`a Second Opposition (Doc. 26). With the first Opposition, Plaintiff filed a Motion for
`Sanctions (Doc. 24) and a Motion for Out-of-Pocket Costs. After Defendants responded
`to the Amended Complaint, Plaintiff filed a Motion for Entry of Default (Doc. 27) and a
`Motion to Compel Compliance with the Rule 16 Conference (Doc. 29).
`II.
`ANALYSIS
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`STANDING
`A.
`Defendants move to dismiss Plaintiff’s Amended Complaint pursuant to Federal
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`Rule of Civil Procedure 12(b)(1) for lack of subject matter jurisdiction because
`Defendants argue that Plaintiff does not have standing to bring the action.
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`Under Federal Rule of Civil Procedure 12(b)(1), a litigant may seek dismissal of
`an action for lack of standing because “Article III standing is a species of subject matter
`jurisdiction.” Cariajano v. Occidental Petroleum Corp., 643 F.3d 1216, 1227 (9th Cir.
`2011) (citation omitted). When a defendant raises a factual challenge under Rule
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 3 of 9
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`12(b)(1), the Court is not limited to the allegations in the pleadings. Roberts v.
`Corrothers, 812 F.2d 1173, 1177 (9th Cir. 1987). Therefore, the Court may view
`evidence outside the record, and no presumptive truthfulness is due to the complaint’s
`allegations that bear on the court’s subject matter jurisdiction. Augustine v. United
`States, 704 F.2d 1074, 1077 (9th Cir. 1983). To survive a defendant’s motion to dismiss
`the plaintiff has the burden of proving jurisdiction. Tosco v. Cmtys. for a Better Env’t,
`236 F.3d 495, 499 (9th Cir. 2000).
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`1.
`Copyright Infringement and Contributory Infringement Claims in the
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`Bankruptcy Estate
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`Plaintiff’s first cause of action is copyright infringement pursuant to 17 U.SC. §
`501. Within that claim, Plaintiff alleges that Defendants infringed the Book copyright
`and the Blog copyright when Defendants made copies of the Book and the Blog for
`purposes of litigation beginning in 2008 and continuing to 2012. In Plaintiff’s second
`cause of action, Plaintiff alleges that Defendant Patricia Piburn engaged in contributory
`infringement when she provided copies of the Book and the Blog to her attorney in
`October 2009. Defendants argue that Plaintiff lacks standing to bring this present action
`because Plaintiff filed a bankruptcy petition—with some property at issue not listed as
`assets—before the filing of this action. Therefore, because the bankruptcy trustee did not
`abandon the claims in this action, Plaintiff does not have standing to sue. To support
`their argument, Defendants attached Plaintiff’s bankruptcy schedule.
` Because
`Defendants raised a factual challenge to Plaintiff’s standing, the Court may consider the
`bankruptcy schedule and other exhibits attached to Defendants’ Motion to Dismiss.
`Although Plaintiff does not address many of the standing issues in the Oppositions,
`Plaintiff claims that the rights to the Book reverted to her in August 2012. Plaintiff
`supports her position with a self-serving affidavit.1 (Doc. 26).
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`When Plaintiff filed her bankruptcy petition, she created a bankruptcy estate that
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`1 For purposes of the Motion to Dismiss, the Court assumes Plaintiff’s affidavit is
`true. However, if the Court later finds that Plaintiff has made false statements in the
`affidavit that she submitted, Defendants may seek sanctions against Plaintiff.
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 4 of 9
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`included the property that is the subject of this action. 11 U.S.C. § 541(a)(1), (7).
`Section 541 provides that all of the debtor’s assets, including causes of action, vest in the
`bankruptcy estate. United States v. Whiting Pools, Inc., 462 U.S. 198, 205 (1983)
`(Section “541(a)(1)’s scope is broad”). Once an asset becomes part of the bankruptcy
`estate, all debtor’s rights in the asset are extinguished unless the asset is abandoned
`pursuant to § 554. 11 U.S.C. § 554(a)–(c). At the close of the bankruptcy case, property
`of the estate that is not abandoned pursuant to § 554 and that is not administered in the
`bankruptcy proceedings remains the property of the estate. 11 U.S.C. § 554(d). Failure
`to list an interest on a bankruptcy schedule leaves that interest in the bankruptcy estate,
`and the debtor lacks standing to pursue it. Dunmore v. United States, 358 F.3d 1107,
`1112 (9th Cir. 2004).
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`Plaintiff lost rights in the assets that she failed to list on the bankruptcy schedule
`and thus does not have standing to pursue claims related to those assets. On August 24,
`2009, Plaintiff filed an action for copyright infringement of the Book. (Doc. 23-5). The
`district court eventually dismissed the action because Plaintiff failed to add the
`bankruptcy trustee or show that the trustee had abandoned the claim. Id. Therefore,
`Plaintiff knew of her interest in the copyright infringement claim well before she filed for
`bankruptcy in December 2009, and yet failed to list it on the bankruptcy schedule. In
`addition, Plaintiff entirely failed to list the Blog as an asset, including any claims related
`to that asset. As a result, the interests in the following assets remain in the bankruptcy
`estate and did not revert to her upon discharge of her debts: (1) the claims arising before
`December 2009, including the copyright infringement and contributory infringement
`claims; (2) the Blog; and (3) claims related to the Blog. Cusano v. Klein, 264 F.3d 936,
`946 (9th Cir. 2001). Because these interests are not Plaintiff’s property, she lacks
`standing to pursue them.2 Therefore, the following claims are dismissed because Plaintiff
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`2 Alternatively, Plaintiff’s claims are barred by the statute of limitations. Section
`507(b) of the Copyright Act provides a three-year statute of limitations. 17 U.S.C. §
`507(b). Because Plaintiff filed this action on August 16, 2009, copyright infringement
`claims arising before that date are barred.
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 5 of 9
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`does not have standing: (1) copyright infringement of the Blog; (2) copyright
`infringement claims of the Book arising before August 2012; and (3) the contributory
`infringement.3
`2.
`Plaintiff Does Not Have Standing to Bring a Claim under the Digital
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`Millennium Copyright Act
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`Plaintiff’s fourth cause of action is a violation of § 1201(a)(1)(A) of the Digital
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`Millennium Copyright Act (DMCA). Under this cause of action, Plaintiff alleges that
`Defendants submitted copies of the Blog to the superior court after Plaintiff had
`implemented security measures on the Blog. (Doc. 22 at 9). Plaintiff further alleges that
`the security measures prevent “copying, printing, and right-clicking,” and thus
`Defendants must have circumvented these measures. Id. Defendants argue that Plaintiff
`does not have standing to bring this claim because the Blog is part of the bankruptcy
`estate.
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`The DMCA contains provisions “directed at the circumvention of a copyright
`owner’s technological measures.” MDY Indus., LLC v. Blizzard Entm’t, Inc., 629 F.3d
`928, 942 (9th Cir. 2010) (interpreting 17 U.S.C § 1201(a)). Section 1201(a)(1)(A) is a
`prohibition against “circumventing a technological measure that effectively controls
`access to a work protected under [the Copyright Act],” and it grants copyright owners the
`right to enforce the prohibition. 17 U.S.C. § 1201(a)(1)(A); MDY Indus., 629 F.3d at
`944. Here, Plaintiff does not have standing to pursue a claim under the DMCA because it
`gives only copyright owners a right to enforce. Plaintiff failed to list the Blog on the
`bankruptcy schedule. Thus, Plaintiff does not own the rights to the Blog; the ownership
`of the copyright rests in the bankruptcy estate. As a result, the DMCA claim is
`dismissed.
`B.
`FAILURE TO STATE A CLAIM
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`Defendants also seek dismissal pursuant to Federal Rule of Civil Procedure
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`3 Plaintiff’s affidavit states that the rights to the Book copyright reverted to her
`in August 2012, and thus Plaintiff has standing to pursue that claim.
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 6 of 9
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`12(b)(6) for failure to state a claim. To survive dismissal for failure to state a claim, the
`complaint must contain more than “labels and conclusions” or a “formulaic recitation of
`the elements of a cause of action”; it must contain factual allegations sufficient to “raise a
`right to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
`(2007) (explaining that the purpose of Rule 8 is to “give the defendant fair notice of what
`the . . . claim is and the grounds upon which it rests”).
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`1.
`Defendants’ Use of the Copyrighted Book
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`It appears Plaintiff has failed to state a claim for copyright infringement in 2012
`because it appears Defendants’ use of the copyrighted Book constitutes “fair use”.4 See
`17 U.S.C. § 107. While Defendants’ Motion to Dismiss did not raise this issue, the Court
`raises the subject sua sponte. “The district court has the power to dismiss a complaint sua
`sponte for failure to state a claim . . . so long as the plaintiff is given notice and an
`opportunity to be heard.” Wachtler v. County of Herkimer, 35 F.3d 77, 82 (2d Cir. 1994).
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`The Amended Complaint alleges that in 2012 Defendants attached copies of the
`Book to a pleading. (Doc. 22 at 5). In this case, Defendants copied excerpts of the Book
`only for use in court proceedings against Plaintiff for harassment, not for enjoyment.
`(Doc. 23 at 8). Under these circumstances, Defendants did not commercially exploit
`Plaintiff’s copyrighted Book. Jartech, Inc v. Clancy, 666 F.2d 403, 406–07 (9th Cir.
`1982) (when parties use copyrighted excerpts in judicial proceedings, the copies are not
`commercially exploitive of the copyrighted work and do not have the same intrinsic use);
`see also Hustler Magazine, Inc. v. Moral Majority Inc., 796 F.2d 1148, 1155 (9th Cir.
`1986) (use that has no effect upon the market of the copyrighted work, or the value of the
`copyrighted work, does not need to prohibited to protect the author’s incentive to create).
`Defendants merely used the excerpts as evidence in a judicial proceeding to show
`Plaintiff’s conduct toward Defendants. As a result, it appears the use of the documents is
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`4 The 2012 claim under the copyright infringement cause of action is the only
`claim that Plaintiff has standing to pursue. However, this analysis applies to all of
`Plaintiff’s claims because all of the claims relate to use of copies of the Book and the
`Blog in judicial proceeding against Plaintiff for harassment.
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 7 of 9
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`“fair use” under 17 U.S.C. § 107 and not an infringement of Plaintiff’s copyright because
`“works are customarily reproduced in various types of judicial proceedings, including
`obscenity and defamation actions . . . and it seems inconceivable that any court would
`hold such reproduction to constitute infringement.” Religious Tech. Center v.
`Wollersheim, 971 F.3d 364, 367 (9th Cir. 1992) (holding that providing copies to expert
`witnesses for the purpose of preparing testimony in a state tort litigation fell under fair
`use) (citation omitted). Thus, Plaintiff has an opportunity to respond to the fair use
`defense, and if Plaintiff does not respond, the Plaintiff’s copyright infringement claim
`will be dismissed.
`2.
`Civil Conspiracy Requires an Underlying Tort
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`Plaintiff’s third claim for relief is state law civil conspiracy. Defendants argued
`that there is no underlying tort of copyright infringement, because Plaintiff does not have
`rights to the Book or the Blog. In the alternative, Defendants argue that the generic
`allegations, without factual support, fail to assert a claim for relief under Twombly.
`“[L]iabilty for civil conspiracy requires that two more individuals agree and thereupon
`accomplish an underlying tort which the alleged conspirators agreed to commit.” Wells
`Fargo Bank v. Arizona Laborers Local No. 395 Pension Trust Fund, 38 P.3d 12, 36
`(Ariz. 2002) (citation omitted). A plaintiff must allege specific facts that support the
`inference of such an agreement. S. Union Co. v. Sw. Gas Corp., 165 F. Supp. 2d 1010,
`1021 (D. Ariz. 2001).
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`The civil conspiracy cause of action fails because the Amended Complaint does
`not allege sufficient facts to support a plausible legal claim of civil conspiracy and there
`is no underlying tort. The Amended Complaint alleges that “Defendants submitted yet
`another pleading . . . with [the Book and the Blog] attached” and that a third party
`attempted to arrange a settlement deal. (Doc. 22 at 8) These allegations are insufficient
`to show an actual conspiratorial agreement. The Complaint is simply void of any clear
`evidence of a plan to infringe Plaintiff’s copyright.5 Moreover, Defendants’ use likely
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`5 In addition, Exhibit 9, which Plaintiff alleges supports her claim, is not attached
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 8 of 9
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`constitutes fair use because Defendants attached copies of the Book to show Plaintiff’s
`conduct in a harassment action, and as a result, an underlying tort does not exist. The
`civil conspiracy claim is dismissed because it does not allege facts showing that the
`Defendants actually agreed to infringe Plaintiff’s copyright or that an underlying tort
`exists.6
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`III. CONCLUSION
`In addition to the Motion to Dismiss, Defendants also moved for attorneys’ fees.
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`Under 17 U.S.C. § 505, the Court has discretion to award attorneys’ fees to a prevailing
`party when doing so would further the purposes of the Copyright Act. Perfect 10, Inc. v.
`CCBill LLC, 488 F.3d 1102, 1120 (9th Cir. 2007). Because Plaintiff has an opportunity
`to respond to fair use, the Court may not award attorneys’ fees before Plaintiff’s
`opportunity to respond. Interscope Records v. Leadbetter, 312 Fed. Appx. 50 (9th Cir.
`2009) (a dismissal without prejudice does not constitute a material alteration in the
`litigants’ legal relationship, and thus a party does not have prevailing party status).
`However, if there is a dismissal with prejudice, Defendants may again move for
`attorneys’ fees.
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`Based on the foregoing,
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`IT IS ORDERED that Defendants’ Motion to Dismiss (Doc. 23) is granted in
`part; the motion remains pending, in part, subject to supplemental briefing. Defendants’
`Motion for Attorney’s Fees (Doc. 23) is denied without prejudice.
`IT IS FURTHER ORDERED that Plaintiff shall file a response to address only
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`fair use as discussed in this Order within fourteen days of the date of this Order.
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`the Amended Complaint. In the district court, the amended complaint supersedes the
`original complaint. See Dowdy v. Raman, No. 1:08-cv-00058, 2008 WL 1901330, *3
`(E.D. Cal. 2008) (citing Forsyth v. Humana, Inc., 114 F.3d 1467, 1474 (9th Cir. 1997),
`overruled on other grounds by, Lacey v. Maricopa County, 693 F.3d 896 (9th Cir. 2012)).
`6 Although Defendants did not move under preemption, Plaintiff’s state law civil
`conspiracy claim faces issues of preemption by the Federal Copyright Act. Grosso v.
`Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004) (“To survive preemption, the
`state cause of action must protect rights that are qualitatively different from the rights
`protected by copyright . . . .”).
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`Case 3:12-cv-08165-JAT Document 30 Filed 11/21/13 Page 9 of 9
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`Defendant may reply within seven days from when Plaintiff responds. If Plaintiff does
`not respond, the Motion to Dismiss will be deemed granted in full with prejudice, and the
`Clerk of the Court shall enter judgment consistent with this Order.
`IT IS FURTHER ORDERED that Plaintiff’s Motion for Costs, Attorney’s Fees,
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`Expense, Out-of-pocket Costs, and to Convert to a Motion for Summary Judgment (Doc.
`24) is denied.
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`IT IS FURTHER ORDERED that Plaintiff’s Motion for Entry of Default (Doc.
`27) is denied because Defendants responded to the Amended Complaint (Doc. 22) with a
`Motion to Dismiss (Doc. 23).
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`IT IS FURTHER ORDERED that Plaintiff’s Motion to Compel Compliance
`with Rule 16 (Doc. 29) is denied because a Rule 16 conference has not been held.
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`IT IS FINALLY ORDERED that Plaintiff’s Motions for Sanctions (Docs. 24 and
`26) are denied because there are no grounds to impose sanctions.
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`Dated this 20th day of November, 2013.
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