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Lewis and Roca LLP3993 Howard Hughes ParkwaySuite 600Las Vegas, Nevada 89169
12345678910111213141516171819202122232425262728Michael J. McCue (NV Bar No. 6055)Jonathan W. Fountain (NV Bar No. 10351)LEWIS AND ROCA LLP3993 Howard Hughes Pkwy., Suite 600Las Vegas, Nevada 89169Telephone: (702) 949-8200Facsimile:(702) 949-8298Attorneys for DefendantMAJORWAGER.COM, INC.
UNITED STATES DISTRICT COURTDISTRICT OF NEVADA
RIGHTHAVEN, LLC, aNevada limited liabilitycompany,Plaintiff,vs.MAJORWAGER.COM, INC., a Canadiancorporation,Defendant.Case No. 2:10-cv-00484-RCJ-LRL
DEFENDANT’S MOTIONTO DISMISS
Pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(2), and 12(b)(6),DefendantMAJORWAGER.COM, INC.,(“Defendant” and/or “MajorWager”),hereby movesthe Court todismiss this action for lack of subject matter jurisdiction, lack of personaljurisdiction, and for failure to state a claim upon which relief can be granted. This motion is supported by theaccompanying declarationsof Russ Hawkins (the “HawkinsDecl.”) and Jonathan W. Fountain(the “Fountain Decl.”), the exhibits attached thereto, and any oralargument the Court may allow.
PRELIMINARY STATEMENT
MajorWageroperates an Internet website devoted to providing information of generalinterest to a worldwide audience of persons interested in sports, sports betting, and a variety of both related and unrelated topics.This case is based upon nothing more than the posting of asingle
1
article from the Las Vegas Review Journal within the “forums” section of MajorWager’s
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While Plaintiff has attached several articles to the Complaint that it claims were posted on Defendant’swebsite, the Complaint only alleges that a single article (the “Work”) has been infringed. The Work is entitled“March to book begins,” and is attached to the Complaint as Exhibit 14.
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12345678910111213141516171819202122232425262728website. While this case masquerades as a legitimate copyright dispute, in reality, itis arguablyfrivolous and nothing more than a thinly disguised shakedown. Plaintiff Righthaven, LLC(“Plaintiff” and/or “Righthaven”) knows that the costs of defending this action will far outweighthe value of this case, and is seeking to extract asettlement under the threat of protracted litigationand expense. Neither the federal courts nor the Federal Rules of Civil Procedure were established for this purpose. That being said, the Court need not facilitate Plaintiff’s scheme. As set forth morefully below, this action should be dismissed for three very legitimate reasons. First, Plaintiff hasnot alleged that it owned the copyrights at issue at the time of the alleged infringement. Absentany such allegation or showing, Plaintiff lacks standing to sue andthe Court lacks subject matter jurisdiction. Second, Plaintiff’s conclusoryallegations fail to allege a
plausible
case for theexercise of personal jurisdictionover MajorWager --a Canadian corporation located in Canada --that has not had any significant contact with Nevada or purposefully directed any tortious conductat Nevada or its residents. Third, the Complaintfailsto state a claim upon which relief can begrantedbecausethe copyright laws do not apply extraterritorially and the Complaint does notallege any act of infringement occurring in the United States.
LEGAL STANDARD
When ruling on a motion to dismiss, it is well established that the Court need only accept astrue uncontroverted allegations of fact.
See Ashcroft v. Iqbal
, 129 S. Ct. 1937, 1949-50, 173 L. Ed.2d 868 (2009);
Bell Atlantic Corp. v. Twombly
, 550 U.S. 544, 555-57, 127 S. Ct. 1955, 167 L. Ed.2d 929 (2007). Thus, courts considering a motion to dismiss should “begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth[;] [w]hile legal conclusions can provide the framework of a complaint, they must be supported by factual allegations.”
Iqbal
, 129 S. Ct. at 1940. These pleading standards govern jurisdictionalallegationsas well.
See, e.g., Watkins v. Kajima Int’l
, No. 3:08-0426, 2009 WL 3053856, at *6(M.D. Tenn. Sept. 18, 2009) (conclusory pleading of personal jurisdiction was deficient under
Twombly
). Thus, ona motion to dismiss for lack of personal jurisdiction, the plaintiff mustmake a
prima facie
showing of facts, through its pleadings and affidavits, that demonstrate it would be
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plausible
for the court to constitutionally exercise personal jurisdiction over the defendant.
Seeid.;Myers v. Bennett LawOffices
,238 F.3d 1068, 1071 (9th Cir. 2001). In ruling on the motion, onlyuncontrovertedallegations must be accepted as true.
SeeAT&T v. Compagnie Bruxelles Lambert
,94 F.3d 586, 588 (9th Cir. 1996). Thus, the courtneed not assume the truth of allegationscontradicted by affidavit.
Data Disc, Inc. v. Systems Tech.Assocs., Inc.
,557 F.2d 1280, 1284 (9thCir. 1977).However, in the absence of an evidentiary hearing, conflicts in the parties’ affidavitsare resolved in the plaintiff’s favor.
AT&T
, 94 F.3d at 588-89.
ARGUMENTI.RIGHTHAVENDOES NOT HAVE STANDING TO SUE(AND THE COURTLACKS SUBJECT MATTER JURISDICTION) BECAUSE RIGHTHAVEN HASFAILED TO ALLEGE THAT IT OWNED THE COPYRIGHTS AT ISSUE AT THETIME OF THE ALLEGED INFRINGEMENT.
While “[t]he legal or beneficial owner of an exclusive right under a copyright is entitled to bring actions for infringements of that right occurring during the period of its ownership,”
ABKCO Music, Inc. v. Harrisongs Music, Ltd
., 944 F.2d 971, 980 (2d Cir. 1991),
a plaintiff whofails to show ownership of a valid copyright at the time of infringement lacks standing to suefor any infringement that occurred prior to its ownership of those rights
.
See Silvers v. Sony Pictures Entm’t, Inc.
, 402 F.3d 881, 885 (9th Cir. 2005) (“in order for a plaintiff to be ‘entitled . . .to institute an action’ for infringement, the infringement must be ‘committed while he or she is theowner of’ the particular exclusive right allegedly infringed.”). “Standing to assert a copyrightclaim is a jurisdictional requirement, and the Court must dismiss an action for lack of subjectmatter jurisdiction if itdetermines the plaintiff lacks standing.”
Giddings v. Vision House Production, Inc
., 584 F. Supp. 2d 1222, 1229 (D. Ariz. 2008) (citing
Lewis v. Casey
, 518 U.S.343, 349 n.1 (1996)).Here, the Court lacks subject matter jurisdiction and should dismiss thiscase because Righthaven has failed to allege or otherwise demonstrate that it was the owner of thecopyrights at issue
at the time of the alleged infringement
.The Complaint alleges that Righthaven is the owner of the copyrights in “March to book begins” (the “Work”). (Compl. ¶ 54.) The Complaint further alleges that: “
No later than
March18, 2010, MajorWager reproduced an unauthorized copyof the Work . . . on MajorWager’s
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