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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 1 of 21
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`AL-HARETH AL-BUSTANI,
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`CASE NO. C22-5238JLR
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`Plaintiff,
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`v.
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`SEAN B. ALGER, et al.,
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`ORDER
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`Defendants.
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`I.
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`INTRODUCTION
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`Before the court are Defendant Gen Media Partners LLC’s (“Gen Media”) motion
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`to dismiss for failure to state a claim (MTD (Dkt. # 79); MTD Reply (Dkt. # 86)), and
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`Plaintiff Al-Hareth Al-Bustani’s second motion to amend his complaint (2d MTA (Dkt.
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`# 84); 2d MTA Reply (Dkt. # 88)). Mr. Al-Bustani opposes Gen Media’s motion to
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`dismiss. (MTD Resp. (Dkt. # 83).) Gen Media filed a response to, but does not oppose,
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`Mr. Al-Bustani’s second motion to amend his complaint. (See 2d MTA Resp. (Dkt.
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`# 87).) No other Defendant opposes Mr. Al-Bustani’s second motion to amend his
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`ORDER - 1
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 2 of 21
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`complaint. (See Dkt.) The court has reviewed the parties’ submissions, the relevant
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`portions of the record, and applicable law. Being fully advised,1 the court GRANTS in
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`part Gen Media’s motion to dismiss and DENIES as moot Mr. Al-Bustani’s second
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`motion to amend his complaint.
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`II.
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`BACKGROUND
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`Mr. Al-Bustani’s claims against Gen Media arise from a July 18, 2019 radio
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`broadcast of the nationally syndicated program, Ground Zero (the “Ground Zero Show”).
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`(Am. Compl. (Dkt. # 44) ¶¶ 34-37.2) Mr. Al-Bustani alleges that Gen Media is the parent
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`company to the entity that broadcast the Ground Zero Show and that Gen Media therefore
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`“produced and syndicated” the show. (Id. ¶ 38.) Gen Media “denies that it ever ‘owned’
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`or ‘produced’ the Ground Zero Show.” (MTD at 3 n.1.)
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`Mr. Al-Bustani alleges that the Ground Zero Show host, Defendant Louis Clyde
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`Holder,3 and several guests (the “Ground Zero Show parties”) discussed the
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`circumstances surrounding the death of Mr. Al-Bustani’s late wife, Tracy Twyman,
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`during the July 18, 2019 broadcast. (Am. Compl. ¶ 34.) Ms. Twyman died by suicide
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`several days before that broadcast. (Id.) Mr. Al-Bustani alleges that the Ground Zero
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`1 Although Gen Media requests oral argument (see Mot. at 1), the court has determined
`that oral argument would not be helpful to its disposition of the motions, see Local Rules W.D.
`Wash. LCR 7(b)(4).
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` 2
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` The court detailed the factual background of this case in its August 9, 2022 order and
`does not repeat that background here. (See 8/9/22 Order (Dkt. # 35).) Instead, the court
`discusses only the factual and procedural background relevant to the instant motions.
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` Mr. Al-Bustani repeatedly refers to Defendant Louis Clyde Holder by his alias, Clyde
`Lewis. (See Am. Compl.; Dkt.)
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`ORDER - 2
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 3 of 21
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`Show parties “made repeated false and speculative statements” about Ms. Twyman’s
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`death, “insinuating that it was . . . a homicide.” (Id. ¶ 35.) The Ground Zero Show
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`parties then discussed Ms. Twyman’s body of work, and Mr. Holder suggested that “there
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`needs to be a concerted effort by a group of people to. . . make sure that her body of work
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`is restored or . . . taken care of” in her absence. (MTD at 10-11; id., Ex. A (“Partial
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`Transcript”) at 54; see also Am. Compl. ¶ 35.) The Ground Zero Show parties discussed
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`a communication that self-proclaimed psychic, Defendant Sloan Bella, stated she had
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`with Ms. Twyman from beyond the grave. (See Partial Transcript at 11; Am. Compl.
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`¶ 36.) Ms. Bella stated that the deceased Ms. Twyman described her death as the result
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`of “kidnapping” by “somebody that she knew” who was “posing as a husband and wife.”
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`(Partial Transcript at 11-12.)
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`Mr. Al-Bustani further alleges that, “[s]ince the date of the Ground Zero Show, the
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`internet has been replete with the false and defamatory statements and innuendos
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`[discussed on the Ground Zero Show] that Mr. Al-Bustani was involved in the alleged
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`‘murder’ of his late wife.” (Am. Compl. ¶ 40.) Mr. Al-Bustani cites a June 2021 article
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`from the website Quora.com as one such false statement and describes it as “a direct and
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`proximate result of the Ground Zero Show.” (Id. ¶ 41; see also MTD at 11, Ex. B
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`(“Quora Article”).5) Mr. Al-Bustani asserts that the Quora Article “makes false
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`4 For the reasons articulated below, the court incorporates by reference the Partial
`Transcript of the Ground Zero Show. (See infra § III.B.) The court uses the page numbers in the
`CM/ECF header when citing to the motions and the parties’ exhibits unless otherwise indicated.
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` The court incorporates the Quora Article by reference. (See infra § III.B.)
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`ORDER - 3
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 4 of 21
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`statements and innuendos about Mr. Al-Bustani, implying that he and Ms. Twyman were
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`‘estranged’ at the time of her death and that Mr. Al-Bustani was involved in her murder
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`and would get his ‘just des[s]erts.’” (Am. Compl. ¶ 41; see also Quora Article at 4
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`(stating Ms. Twyman’s “estranged husband” is on a “‘crusade’ to remove all of [her]
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`work from the Internet”).)
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`Mr. Al-Bustani filed the instant action on April 11, 2022 and named as a defendant
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`Alpha Media LLC (“Alpha Media”), which he believed was responsible for producing
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`the Ground Zero Show. (See generally Compl. (Dkt. # 1); Dkt.; 1st MTA (Dkt. # 38)
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`¶ 4.) Mr. Al-Bustani then learned that Alpha Media had transferred production and
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`syndication of the Ground Zero Show to a subsidiary of Gen Media shortly before the
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`July 18, 2019 broadcast. (Am. Compl. ¶ 38.) Mr. Al-Bustani voluntarily dismissed
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`Alpha Media on June 14, 2022 and filed an amended complaint naming Gen Media as a
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`defendant on September 22, 2022. (See id.; Dkt.) Mr. Al-Bustani’s amended complaint
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`asserted the following claims against Gen Media: (1) vicarious copyright infringement;
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`(2) violation of the Washington Personality Rights Act (“WPRA”); (3) false light
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`invasion of privacy (“false light”); (4) intentional infliction of emotional outrage
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`(“outrage”); and (5) negligent infliction of emotional distress (“NIED”). (See Am.
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`Compl. ¶¶ 66-98.) Mr. Al-Bustani served Gen Media with the amended complaint on
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`October 27, 2022. (See Aff. (Dkt. # 56).) Gen Media now seeks dismissal of each of Mr.
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`Al-Bustani’s claims against it. (See generally MTD.) After Gen Media filed its motion
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`to dismiss, Mr. Al-Bustani filed a second motion to amend his complaint, seeking to add
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`ORDER - 4
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 5 of 21
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`allegations in support of a claim for direct copyright infringement against Mr. Holder.
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`(See 2d MTA at 13, 17.)
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`III. ANALYSIS
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`The court first reviews the legal standard for a motion to dismiss before turning to
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`Gen Media’s motion. The court then addresses Mr. Al-Bustani’s second motion to
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`amend his complaint.
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`A.
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`Legal Standard for a Motion to Dismiss
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`Federal Rule of Civil Procedure 12(b)(6) provides for dismissal when a complaint
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`“fail[s] to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
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`Under this standard, the court construes the complaint in the light most favorable to the
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`nonmoving party, Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946
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`(9th Cir. 2005), and asks whether the complaint contains “sufficient factual matter,
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`accepted as true, to ‘state a claim to relief that is plausible on its face,’” Ashcroft v. Iqbal,
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`556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
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`(2007)). The court is not, however, required to accept as true legal conclusions or
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`“formulaic recitation[s] of the legal elements of a cause of action,” Chavez v. United
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`States, 683 F.3d 1102, 1008 (9th Cir. 2012), or “allegations that are merely conclusory,
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`unwarranted deductions of fact,” Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998
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`(9th Cir. 2010). “A claim has facial plausibility when the plaintiff pleads factual content
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`that allows the court to draw the reasonable inference that the defendant is liable for the
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`misconduct alleged.” Iqbal, 556 U.S. at 678.
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`ORDER - 5
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 6 of 21
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`B.
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`Incorporation by Reference
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`In its motion to dismiss, Gen Media urges the court to consider, under the doctrine
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`of incorporation by reference, a document that Gen Media states is a transcript of an
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`excerpt of the July 18, 2019 broadcast of the Ground Zero Show (see MTD at 10; Partial
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`Transcript), and the Quora.com article Mr. Al-Bustani alleges was inspired by the
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`Ground Zero Show (id. at 11; Quora Article; see also Am. Compl. ¶ 41 (describing the
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`Quora Article as “a direct and proximate result of the Ground Zero Show”)). Mr.
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`Al-Bustani opposes Gen Media’s request to incorporate the Partial Transcript by
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`reference but does not address its request with respect to the Quora Article. (See MTD
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`Resp. at 3-5.)
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`The court must typically limit its analysis to the complaint when deciding a
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`motion to dismiss, but may incorporate by reference certain materials that “form[] the
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`basis of the plaintiff’s claim,” without converting the 12(b)(6) motion to dismiss into a
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`Rule 56 motion for summary judgment. U.S. v. Ritchie, 342 F.3d 903, 907-08 (9th Cir.
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`2003). The incorporation by reference doctrine is intended to “prevent plaintiffs from
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`surviving a Rule 12(b)(6) motion by deliberately omitting documents upon which their
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`claims are based.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (citing
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`Parrino v. FHP, Inc., 146 F.3d 699, 706 (9th Cir. 1998)). The court may incorporate by
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`reference materials “on which the complaint necessarily relies if: (1) the complaint refers
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`to the document; (2) the document is central to the plaintiff’s claim; and (3) no party
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`questions the authenticity” of the document. Daniels-Hall, 629 F.3d at 998 (quoting
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`Marder v. Lopez, 450 F.3d 445, 448 (9th Cr. 2006)).
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`ORDER - 6
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 7 of 21
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`If the non-moving party disputes the authenticity of the document, “the court must
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`accept [his] representation that there is a dispute.” Gerritsen v. Warner Bros. Ent. Inc.,
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`112 F. Supp. 3d 1011, 1027 & n.77 (C.D. Cal. 2015). However, like any other claim the
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`non-moving party makes at this stage, his dispute of authenticity must have “facial
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`plausibility.” Casa Nido P’ship v. Kwon, No. 20-CV-07923EMC, 2021 WL 5053084, at
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`*3 (N.D. Cal. Nov. 1, 2021) (declining to incorporate material by reference because the
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`operative complaint did not rely on it and the plaintiff plausibly disputed its authenticity).
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`In particular, the court need not accept a party’s concerns regarding the authenticity of
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`the document where doing so would frustrate the purpose of the incorporation by
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`reference doctrine. See Gerritsen, 112 F. Supp. 3d at 1025 (accepting plaintiff’s
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`authenticity concerns because there was no evidence that she was attempting to “survive
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`a motion to dismiss ‘by deliberately omitting documents upon which [her] claims are
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`based’” (quoting Swartz, 476 F.3d at 763)).
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`The court agrees with the parties that the Quora Article meets the requirements of
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`the incorporation by reference doctrine. (See MTD at 11; see generally MTD Resp.) The
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`court incorporates the Quora Article by reference.
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`Gen Media argues that because Mr. Al-Bustani’s amended complaint and each of
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`his claims against Gen Media rely extensively on statements made on the Ground Zero
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`Show, the court should incorporate the Partial Transcript by reference. (MTD at 11.) In
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`opposition, Mr. Al-Bustani asserts that he disputes the authenticity of the Partial
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`Transcript because it is incomplete and lacks “assurances that the audio file found on the
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`internet is a complete, accurate, unedited record of the broadcast.” (MTD Resp. at 4.)
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`ORDER - 7
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 8 of 21
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`Gen Media replies that Mr. Al-Bustani’s authenticity concerns are not reasonable,
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`particularly because the document is a transcription of the audio file whose web address
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`Mr. Al-Bustani provided to Gen Media. (See MTD Reply at 2-3; MTD at 10 n.2; see also
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`MTD Resp. at 4 (admitting that Mr. Al-Bustani “informed Gen Media of the location” of
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`the Ground Zero Show recording).) Gen Media also asserts that the Partial Transcript is
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`the most complete copy available, includes the statements quoted in the amended
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`complaint, and contains indicators that it was scanned and uploaded one day after the
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`broadcast, by the same radio station that hosted the Ground Zero Show at the time.
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`(MTD Reply at 3-4.)
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`The court agrees with Gen Media that (1) Mr. Al-Bustani’s complaint repeatedly
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`refers to and quotes directly from the content of the Partial Transcript and (2) the content
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`of the Ground Zero Show is central to each of his claims. (See generally Am. Compl.)
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`Indeed, every single one of Mr. Al-Bustani’s claims against Gen Media derives from
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`statements made on the July 18, 2019 airing of the Ground Zero Show. (See Am. Compl.
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`¶¶ 34-37, 40-41.) Although Mr. Al-Bustani states that he disputes the authenticity of the
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`transcript, the court concludes that his concerns are not facially plausible but are instead
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`an attempt to survive Gen Media’s motion by deliberately excluding the Partial
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`Transcript. See Casa Nido, 2021 WL 5053084, at *3; Daniels-Hall, 629 F.3d at 998
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`(providing that the court need not accept as true “allegations that are merely conclusory,
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`unwarranted deductions of fact”). Mr. Al-Bustani’s stated concerns are conclusory and
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`generalized; he does not identify specific facts in support of his conclusion that the Partial
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`Transcript is inauthentic, and he admits that he provided Gen Media with the very link to
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`ORDER - 8
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 9 of 21
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`the audio file on which the Partial Transcript is based. (Compare MTD Resp. at 4
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`(stating only that the Partial Transcript “may not be an accurate transcription”)), with
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`Casa Nido, 2021 WL 5053084, at *3 (finding plaintiff’s authenticity dispute plausible
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`where she alleged the documents at issue were taken out of context from other relevant
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`documents).
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`Here, Mr. Al-Bustani’s conclusory “dispute” regarding the authenticity of the
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`Partial Transcript is not facially plausible; declining to incorporate the document by
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`reference on that basis would frustrate the doctrine’s purpose. See Swartz, 476 F.3d at
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`763 (explaining that the incorporation by reference doctrine is intended to prevent the
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`plaintiff from surviving a motion to dismiss by deliberately omitting documents on which
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`his complaint relies); see also Gerritsen, 112 F. Supp. 3d at 1025 (accepting plaintiff’s
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`authenticity concerns because there was no risk that doing so would frustrate the purpose
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`of the doctrine). Accordingly, the court incorporates by reference the Partial Transcript.
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`C. Whether Mr. Al-Bustani’s Claims are Time-Barred
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`Gen Media argues that each of Mr. Al-Bustani’s claims against it are time-barred.
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`(See MTD at 11-14.) “A statute-of-limitations defense, if ‘apparent from the face of the
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`complaint,’ may properly be raised in a motion to dismiss.” Seven Arts Filmed Ent. Ltd.
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`v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Conerly v.
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`Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)). The limitations period on
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`a legal claim begins to run when the cause of action accrues, which is when “the party
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`has the right to apply to a court for relief.” 1000 Va. Ltd. P’ship v. Vertecs Corp., 146
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`P.3d 423, 428 (Wash. 2006). However, “where the plaintiff is unaware of harm
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`ORDER - 9
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 10 of 21
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`sustained, a ‘literal application of the statute of limitations’ could ‘result in grave
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`injustice.’” Id. (quoting Gazija v. Nicholas Jerns Co., 543 P.2d 338, 341 (Wash. 1975)).
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`“‘[U]nder the discovery rule, a cause of action does not accrue—and as a result the
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`statute of limitations does not begin to run—until the plaintiff knows, or has reason to
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`know, the factual basis for the cause of action.’” Schreiner Farms, Inc. v. Am. Tower,
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`Inc., 293 P.3d 407, 411 (Wash. Ct. App. 2013) (quoting Bowles v. Wash. Dep’t of Ret.
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`Sys., 847 P.2d 440, 454 (Wash. 1993)).
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`The parties agree that Mr. Al-Bustani’s claims under the WPRA and for indirect
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`copyright infringement are each subject to a three-year statute of limitations, while his
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`false light, outrage, and NIED claims are governed by a two-year statute of limitations.
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`(See MTD at 11; MTD Resp. at 9.) The court agrees. See RCW 4.16.100.080(2),
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`Eastwood v. Cascade Broad. Co., 722 P.2d 1295, 1296 (Wash. 1986) (applying a
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`two-year statute of limitations to false light invasion of privacy where the underlying
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`facts give rise to a defamation claim); 17 U.S.C. § 507(b).
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`Gen Media asserts that all of Mr. Al-Bustani’s claims against it are time-barred
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`because he did not name Gen Media in the amended complaint until September 22, 2022,
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`more than three years after the July 18, 2019 broadcast of the Ground Zero Show. (MTD
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`at 11-14; see also Dkt.) Mr. Al-Bustani responds that the discovery rule tolls the statute
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`of limitations on each of his claims. (MTD Resp. at 6-8.) Mr. Al-Bustani states that he
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`“first became aware of the [statements at issue] in April of 2021.” (Am. Compl. ¶ 49.)
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`Gen Media argues that the discovery rule does not apply to Mr. Al-Bustani’s WPRA,
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`ORDER - 10
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`NIED, or false light claims. (MTD at 11-12.6) Gen Media argues further that even if the
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`discovery rule applies to any of his claims, Mr. Al-Bustani does not plausibly allege that
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`his claims are timely filed. (MTD at 12; MTD Reply at 5-6.) The court addresses each
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`of Gen Media’s arguments in turn.
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`As a threshold matter, the court rejects Gen Media’s argument that Mr. Al-Bustani
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`fails to plausibly allege facts that render his claims timely. (See MTD at 12-13.) Gen
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`Media argues that Mr. Al-Bustani’s statement that he discovered the statements in April
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`2021 is not enough to plausibly allege the same, and that his belated discovery is not
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`plausible because he was aware of the Ground Zero Show in general and in contact with
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`the show’s host days before the broadcast. (Id.) As it must, the court accepts as true Mr.
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`Al-Bustani’s statement that he became aware of the damaging statements in April of
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`2021.7 See Iqbal, 556 U.S. at 678 (requiring only sufficient factual allegations to allow
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`the court to draw a “reasonable inference” in the plaintiff’s favor). Therefore, the statute
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`of limitations accrued in April 2021 with respect to each of Mr. Al-Bustani’s claims to
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`which the discovery rule applies. Accordingly, the court concludes that Mr. Al-Bustani’s
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`claims for copyright infringement and outrage are not barred by the statute of limitations.
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`6 The parties do not dispute, however, that the discovery rule applies to Mr. Al-Bustani’s
`copyright infringement and outrage claims. (MTD at 12 (citing Starz Ent. LLC v. MGM
`Domestic TV Distrib., LLC, 39 F.4th 1236, 1237 (9th Cir. 2022)); MTD Resp. at 6 (citing Doe v.
`Finch, 942 P.2d 359, 361 (Wash. 1997)); MTD Reply at 5.) The court agrees.
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` The case Gen Media relies on is distinguishable. (See MTD at 12 (citing Velicer v.
`Falconhead Cap., LLC, No. C19-1505JLR, 2020 WL 1182962, at *6-7 (Mar. 11, 2020)).) The
`Velicer plaintiffs failed to allege any facts regarding when they discovered the basis of their
`claims. Velicer, 2020 WL 1182962, at *6-7.
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`ORDER - 11
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 12 of 21
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`The court must now determine whether, under Washington law,8 the discovery
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`rule applies to Mr. Al-Bustani’s false light claim.9 Gravquick A/S v. Trimble Navigation
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`Intern. Ltd., 323 F.3d 1219, 1222 (9th Cir. 2003) (“A federal court applying [state] law
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`must apply the law as it believes [that state’s] [s]upreme [c]ourt would apply it.”).
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`Where, as here, there is no controlling Washington Supreme Court decision, this court
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`must predict how that court would decide the issue, using intermediate appellate court
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`decisions, statutes, and decisions from other jurisdictions as interpretive aids. Id.; see
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`also Soltani v. W. & S. Life Ins. Co., 258 F.3d 1038, 1045-46 (9th Cir. 2001). For the
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`following reasons, the court concludes that the Washington Supreme Court would not
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`apply the discovery rule to a false light claim where the allegedly false statement at issue
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`was publicly available.
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`Generally, Washington courts apply the discovery rule to two categories of cases:
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`(1) those in which the defendant conceals a material fact from the plaintiff; and (2) those
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`in which the nature of the plaintiff’s injury makes it difficult for the plaintiff to learn of
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`the material facts during the limitations period. Crisman v. Crisman, 931 P.2d 163, 166
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`(Wash. Ct. App. 1997); see also Kittinger v. Boeing Co., 585 P.2d 812, 813-14 (Wash.
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`8 The court rejects Mr. Al-Bustani’s argument that the discovery rule always applies in
`federal litigation. (See MTD Resp. at 5 (quoting Mangum v. Action Collection Serv., Inc, 575
`F.3d 935, 940 (9th Cir. 2009)).) Limitations on state causes of actions, and any applicable
`tolling rules, are creatures of state law, regardless of the litigation forum. See generally, RCW
`4.16.005 et seq. (setting statutes of limitations on causes of action under Washington law); see
`also, e.g., Del Guzzi Const. Co. v. Global Northwest, Ltd., Inc., 719 P.2d 120, 124 (Wash. 1986)
`(construing state law to determine whether discovery rule applied to state law cause of action).
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` 9
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` The court need not evaluate whether the discovery rule applies to Mr. Al-Bustani’s
`claims under the WPRA or for NIED because those claims are subject to dismissal for the
`reasons articulated below. See infra §§ III.E, F.
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`ORDER - 12
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`Ct. App. 1978) (noting that “the general rule is that the [libelous] action accrues at the
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`time of the publication” but nevertheless applying the discovery rule because publication
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`was in confidential memo). But Washington courts refuse to apply the discovery rule to
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`legal claims where the underlying facts are generally knowable with reasonable diligence
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`within the limitations period. See, e.g., Antonius v. King Cnty., 103 P.3d 729, 736-37
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`(Wash. 2004) (hostile work environment); Douchette v. Bethel Sch. Dist. No. 403, 818
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`P.2d 1362, 1366 (Wash. 1991) (age discrimination); Bradley v. Am. Smelting & Refining
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`Co., 709 P.2d 782, 791-92 (Wash. 1985) (continuing torts).
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`Application of the discovery rule is thus “limited to cases in which the plaintiffs
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`could not have immediately known of their injuries.” In re Ests. of Hibbard, 826 P.2d
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`690, 696 (Wash. 1992). The Washington Court of Appeals case Mr. Al-Bustani cites is
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`not to the contrary. (See MTD Resp. at 6 (citing Dezihan v. State, No. 37262-6-III, 2021
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`WL 1103634, at *5 (Wash. Ct. App. March 3, 2021), rev denied, 492 P.3d 173 (Wash.)).)
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`The Dezihan court applied the discovery rule to an invasion of privacy claim where the
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`actionable publication was a private communication between the plaintiff’s prospective
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`employers about his prior whistleblower activity. Dezihan, 2021 WL 1103634, at *5.
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`The plaintiff did not know—but more importantly, could not have known—about the
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`harmful statement until someone informed him of the private communication. Id.; see
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`also Roush v. Akal Security, Inc., No. 2:17-cv-358RMP, 2020 WL 5996424, at *5 (E.D.
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`Wash. Oct. 9, 2020) (suggesting that the discovery rule applies to invasion of privacy
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`claim where the publication was concealed (citing 1000 Virginia, 146 P.3d at 428)).
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`ORDER - 13
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 14 of 21
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`Here, by contrast, Mr. Al-Bustani does not allege that the statements at issue in his
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`false light invasion of privacy claim against Gen Media were concealed from, or
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`otherwise unavailable to, him during the two-year limitations period. (See Am. Compl.
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`¶ 49 (stating only that he became aware of the publication in April 2021)); Crisman, 931
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`P.2d at 166.10 The court cannot conclude, moreover, that the nature of the injury in a
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`false light claim arising from public statements makes it difficult for the plaintiff to detect
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`the material facts within the claim’s two-year limitations period. See Crisman, 931 P.2d
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`at 166. Accordingly, Washington law does not permit the court to apply the discovery
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`rule to Mr. Al-Bustani’s false light claim against Gen Media for the statements made in
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`its public broadcast of the Ground Zero Show.
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`Because Mr. Al-Bustani’s false light claim is not subject to equitable tolling, the
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`statute of limitations accrued when the Ground Zero Show was first broadcast on July 18,
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`2019. (Am. Compl. ¶ 34.) Mr. Al-Bustani’s deadline to file a claim for false light
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`invasion of privacy based on statements made in the Ground Zero Show was two years
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`later, on July 18, 2021. See Eastwood, 722 P.2d at 1296. However, Mr. Al-Bustani did
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`not commence this action until April 11, 2022. (See generally Compl.) Accordingly, the
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`court DISMISSES Mr. Al-Bustani’s claim for false light invasion of privacy against Gen
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`10 In fact, Mr. Al-Bustani was aware of his injury during the limitations period but did not
`file suit for another year, which weighs against equitable tolling. See Crisman, 931 P.2d at 166
`(the discovery rule applies “[i]f the delay was not caused by the plaintiff sleeping on his rights”).
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`11 Mr. Al-Bustani argues that the claims in his amended complaint relate back to the
`original complaint. (MTD Reply at 9-11.) The court need not address this argument because,
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`ORDER - 14
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 15 of 21
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`D. Whether Mr. Al-Bustani Fails to State a Claim for Vicarious Copyright
`Infringement
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`“Vicarious infringement occurs when one profits from direct infringement while
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`declining to exercise a right to stop or limit” the directly infringing activity. Ludvarts,
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`LLC v. AT & T Mobility, LLC, 710 F.3d 1068, 1071 (9th Cir. 2013) (citing
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`Metro-Goldwyn-Meyer Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930 (2005)). A
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`plaintiff must therefore plausibly plead the predicate claim for direct infringement in
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`order to survive a motion to dismiss his vicarious infringement claim. See, e.g., Grokster,
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`545 U.S. at 930. A plaintiff establishes a prima facie case of direct infringement by
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`demonstrating (1) ownership of the allegedly infringed material and (2) that the alleged
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`infringers violated at least one exclusive right granted to copyright holders. A & M
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`Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001)). A copyright
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`holder’s five exclusive rights are to reproduce, prepare derivatives of, distribute copies
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`of, perform, and display the copyrighted work. 17 U.S.C. § 106.
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`Mr. Al-Bustani alleges that several Defendants, including Mr. Alger—the only
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`guest on the Ground Zero Show accused of direct copyright infringement—engaged in
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`direct copyright infringement by “copying[,] reproducing, and distributing identical or
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`substantially similar” materials to those copyrighted by Ms. Twyman’s estate, thereby
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`infringing on Mr. Al-Bustani’s exclusive rights. (See Am. Compl. ¶¶ 56-61; see also id.
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`¶ 58, Ex. A).) In support of this allegation, Mr. Al-Bustani refers to the Ground Zero
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`even if Mr. Al-Bustani’s amended complaint met the relation back requirements, his false light
`claim for statements made on the Ground Zero Show was already untimely when he filed the
`original complaint on April 11, 2022. See Eastwood, 722 P.2d at 1296; (see also Dkt.).
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`ORDER - 15
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 16 of 21
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`Show parties’ discussion of Ms. Twyman’s work. (Am. Compl. ¶¶ 35, 37; see also
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`Partial Transcript at 8 (“[M]aybe there needs to be a concerted effort by a group of people
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`to go in and try to get that information and . . . make sure that her body of work is
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`restored or . . . taken care of”); see MTD Resp. at 12.) Mr. Al-Bustani’s vicarious
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`copyright infringement claim against Gen Media alleges that Gen Media had the right
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`and ability to control Mr. Alger’s conduct, that it failed to exercise that right and ability,
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`and that it received a direct financial benefit from Mr. Alger’s allegedly infringing
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`conduct. (See Am. Compl. ¶¶ 67-73.)
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`Gen Media argues that Mr. Al-Bustani’s claim for vicarious copyright
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`infringement fails because he fails to allege any facts to show that direct copyright
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`infringement occurred on the Ground Zero Show. (MTD at 14-15.) The court agrees.
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`Although the court assumes, without deciding, that Ms. Twyman’s works were subject to
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`copyright, the court cannot identify any reproduction, distribution, or display of Ms.
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`Twyman’s copyrighted works in the discussion quoted in the amended complaint, or
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`anywhere in the materials incorporated by reference. (See Am. Compl.; Partial
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`Transcript; Quora Article); see also 17 U.S.C. § 106. Mr. Al-Bustani states only that
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`“[t]he suggestions given on the show also promote the unauthorized copying and
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`distribution of Ms. Twyman’s copyrighted Works or derivatives thereof.” (Am. Compl.
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`¶ 37.) Mr. Al-Bustani does not, however, offer any authority for the position that merely
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`“promot[ing] the unauthorized copying and distribution” of copyrighted works
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`constitutes direct copyright infringement or otherwise supports a claim for vicarious
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`copyright infringement. (See MTD Resp.) To the extent Mr. Al-Bustani alleges direct
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`ORDER - 16
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`Case 3:22-cv-05238-JLR Document 91 Filed 02/06/23 Page 17 of 21
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`copyright infringement by other parties, he does not allege that Gen Media is vicariously
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`liable for any infringing activities that did not occur on the Ground Zero Show. (See
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`generally Am. Compl.)
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`Because Mr. Al-Bustani’s claim for vicarious copyright infringement fails at this
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`first step, the court need not address the additional elements of his claim or Gen Media’s
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`additional arguments. The court DISMISSES Mr. Al-Bustani’s claim for vicarious
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`copyright infringement against Gen Media.
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`E. Whether Mr. Al-Bustani Fails to State a Plausible Claim Under the WPRA
`The WPRA establishes that “[e]very individual or personality has a prop