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Gov.uscourts.casd.323630.51.0

Gov.uscourts.casd.323630.51.0

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Published by eriqgardner

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Published by: eriqgardner on Dec 20, 2011
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Defendants previously filed a motion to dismiss the First Amended Complaint and that motion wasgranted.
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Unless otherwise stated, all rule references are to the Federal Rules of Civil Procedure.
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Defendants request for judicial notice is DENIED AS MOOT in light of the Defendants previous andidentical request in this case, which the Court already granted.
See
Doc. No. 46.1
10cv1051
UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF CALIFORNIAKELLY VAN,Plaintiff,v.JAMES CAMERON, TWENTIETHCENTURY FOX; DUNEENTERTAINMENT, INC.; INGENIOUSFILM PARTNERS, LLP; INGENIOUSFILM PARTNERS 2; FUTURE SERVICE,INC.; LIGHT STORM ENTERTAINMENT,INC.; DOES 2-10Defendants. ))))))))))))))))Civil No. 10cv1051 AJB (WVG)ORDER GRANTING MOTION TODISMISS[Doc. No. 48]The Defendants filed a motion, [Doc. No. 48], to dismiss the Second Amended Complaint(hereinafter “SAC”) with prejudice
1
pursuant to Federal Rule of Civil Procedure Rule 12(b)(6)
2
andDefendants also request judicial notice of the copyrighted work and the alleged infringing work.
3
ThePlaintiff filed an opposition and the Defendants filed a reply. The hearing set for October 28, 2011 at1:30 p.m. before Judge Battaglia is hereby VACATED as the Court finds this motion appropriate for
Case 3:10-cv-01051-AJB-WVG Document 51 Filed 09/26/11 Page 1 of 7
 
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10cv1051
submission on the papers without oral arguments pursuant to Civil Local Rule 7.1.d.1. For the reasonsset forth below, the Defendants’ motion to dismiss the SAC is hereby GRANTED WITH PREJUDICE.BACKGROUNDOn August 1, 2011, Plaintiff filed the SAC alleging four causes of action: 1) copyright infringe-ment under 17 U.S.C. § § 106, 501(a), against all Defendants; 2) contributory copyright infringement,against all Defendants except Cameron; 3) vicarious copyright infringement, against all Defendantsexcept Cameron; and 4) violations of the California Business and Professions Code § § 5400, 17500against all Defendants. (Doc. No. 47.) Defendants filed a Motion to Dismiss Second AmendedComplaint and Request for Judicial Notice on August 15, 2011. (Doc. No. 48.) According to hercomplaint, Plaintiff wrote a novel entitled “Sheila the Warrior: The Damned” (
hereinafter “Sheila”
)around the year 2000, published the book in 2003, and copyrighted it in 2004. (Doc. No. 48 at 3.) Theplot of 
Sheila
involves the title character whose husband and children die in a car crash, prompting herto travel to the planet Tibet to volunteer as a hospital administrator. (Doc. No. 12-3, Ex. B.) On Tibet,Sheila befriends a woman named Claire, falls in love with a human miner, and fights off an evilinvading alien species, the Blood Suckers. (
 Id.
) Claire falls in love with one of the Crowpeople, afeathered species who can fly and who descended from the original human settlers of Tibet. (
 Id.
) In aportion of the novel taking place twenty years in the future, Sheila discovers the secret of how humansfirst reached Tibet. Sheila works to get the various tribes on the planet to keep this secret from otherswho may want to come to Tibet and exploit it for its stores of gold. (
 Id.
)Plaintiff accuses Defendants’ movie
 Avatar 
of infringing on her copyright
Sheila
novel.Defendant James Cameron wrote and directed
 Avatar 
, which was partially financed by Defendant DuneEntertainment, LLC and was released in December 2009 by Defendant Twentieth Century Fox FilmCorporation. (Doc. No. 48-1 at 2.) The plot of 
 Avatar 
tells the story of an injured ex-Marine, Jake, whotravels to the planet Pandora after his twin brother dies in a violent crime. (Doc. No. 12-3, Ex. A.) OnPandora, Jake must take his brother’s place by occupying the body of an avatar to work for a miningcompany. (
 Id.
) Jake’s assignment was to infiltrate the native tribe, the Na’vi, in order to defeat themand recover more unobtainium, the planet’s precious mineral resource. (
 Id.
) Jake at first works as a spy
Case 3:10-cv-01051-AJB-WVG Document 51 Filed 09/26/11 Page 2 of 7
 
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4
 
 Benay v. Warner Bros. Entm't, Inc
., 607 F.3d 620, 624 (9th Cir. 2010)(
quoting
 
Funky Films, Inc. v.Time Warner Entm't Co.
, 462 F.3d 1072, 1076 (9th Cir. 2006)).3
10cv1051
for the mining company, then eventually falls in love with a woman in the native tribe, adopts the tribe’sways, and helps them fight off the mining company. (
 Id.
)
 Legal Standard 
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests thelegal sufficiency of the claims asserted in the complaint. Fed. R. Civ. P. 12(b)(6);
 Navarro v. Block 
, 250F.3d 729, 731 (9th Cir. 2001). The court must accept all factual allegations pleaded in the complaint astrue, and must construe them and draw all reasonable inferences from them in favor of the nonmovingparty.
Cahill v. Liberty Mutual Ins. Co.
, 80 F.3d 336, 337–38 (9th Cir.1996). To avoid a Rule 12(b)(6)dismissal, a complaint need not contain detailed factual allegations, rather, it must plead “enough factsto state a claim to relief that is plausible on its face.”
 Bell Atl. Corp. v. Twombly
, 550 U.S. 544, 570(2007). A claim has “facial plausibility when the plaintiff pleads factual content that allows the court todraw the reasonable inference that the defendant is liable for the misconduct alleged.”
 Ashcroft v. Iqbal
,––– U.S. ––––, 129 S.Ct. 1937, 1949 (2009) (citing
Twombly
, 550 U.S. at 556).However, “a plaintiff's obligation to provide the ‘grounds' of his ‘entitle[ment] to relief’ requiresmore than labels and conclusions, and a formulaic recitation of the elements of a cause of action will notdo.”
Twombly
, 550 U.S. at 555 (quoting
Papasan v. Allain
, 478 U.S. 265, 286 (1986)) (alteration inoriginal). A court need not accept “legal conclusions” as true.
 Iqbal
, 129 S.Ct. at 1949. In spite of thedeference the court is bound to pay to the plaintiff's allegations, it is not proper for the court to assumethat “the [plaintiff] can prove facts that [he or she] has not alleged or that defendants have violated the ...laws in ways that have not been alleged.”
 Associated Gen. Contractors of Cal., Inc. v. Cal. StateCouncil of Carpenters
, 459 U.S. 519, 526 (1983). “Where a complaint pleads facts that are ‘merelyconsistent with’ a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.’”
 Iqbal
, 129 S.Ct. at 1949 (quoting
Twombly
, 550 U.S. at 557).
 Discussion
To state a case for copyright infringement under the Copyright Act, a plaintiff must show 1)ownership of a valid copyright, and 2) copying of constituent elements of the work that are original.
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 The second prong of this test requires Plaintiff demonstrate that Defendants had access to Plaintiff’s
Case 3:10-cv-01051-AJB-WVG Document 51 Filed 09/26/11 Page 3 of 7

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