Jamieson v. Hoven Vision, LLC

[7] 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA [10] 11 JANA DILLON JAMIESON, Case No.: 22-CV-117 TWR (AHG) 12 Plaintiff, ORDER DENYING DEFENDANT 13 v. HOVEN VISION, LLC’S MOTION TO DISMISS THE COMPLAINT 14 HOVEN VISION, LLC, 15 Defendant. (ECF No. 10) [16] 17 Presently before the Court is Defendant Hoven Vision, LLC’s Motion to Dismiss 18 the Complaint (“Mot.,” ECF No. 10), as well as Plaintiff Jana Dillon Jamieson’s Response 19 in Opposition to (“Opp’n,” ECF No. 11) and Defendant’s Reply in Support of (“Reply,” 20 ECF No. 13) the Motion. The Court vacated the hearing and took the Motion under 21 submission on the papers without oral argument pursuant to Civil Local Rule 7.1(d)(1). 22 (See ECF No. 12.) Having carefully considered Plaintiff’s Complaint (“Compl.,” ECF No. 23 1), the record, the Parties’ arguments, and the relevant law, the Court DENIES Defendant’s 24 Motion. 25 BACKGROUND 26 Plaintiff is a professional photographer based in Hawaii. (See Compl. ¶¶ 9, 14.) 27 Defendant is California limited liability company based in San Diego, California, that 28 manufactures and distributes “eyewear with a focus on sunglasses.” (See id. ¶¶ 10, 18.) 1 Plaintiff advertised a “Half Day” photography package including “4 Hours of 2 Creative Time On-Location,” “8 Edited Images,” and “Rights to 8 Final edited images” for 3 $3,000 (the “Half Day Package”). (See ECF No. 10-1 (“1st Supp. Sehgal Decl.”) ¶ 4; ECF 4 No. 10-2 (“Sehgal Ex. A”).1) On January 27, 2015, Defendant contacted Plaintiff about a 5 possible photoshoot for Defendant’s products. (See Compl. ¶ 43; see also ECF No. 1-5 6 (“Compl. Ex. 4”) Email #1; ECF No. 11-1 (“Jamieson Decl.”) ¶ 7.) Plaintiff performed 7 several photoshoots for Defendant in February 2015. (See Compl. Ex. 4 Emails #2–6; 8 Jamieson Decl. ¶¶ 9–12.) Although she had not yet been paid, Plaintiff sent Defendant the 9 resulting photographs that are at issues in this action (the “relevant photos”) at Defendant’s 10 request. (See Compl. ¶¶ 45–46; Jamieson Decl. ¶¶ 13–14.) 11 On April 15, 2015, Plaintiff sent Defendant an invoice for $3,960. (See 1st Supp. 12 Sehgal Decl. ¶ 5; ECF No. 10-3 (“Sehgal Ex. B”) at 3–4;2 ECF No. 10-4 (“Sehgal Ex. C”).) 13 Defendant wrote back that it was their “understanding that there was a budget for a bundle,” 14 and Plaintiff responded that she “believe[d] it was the half day package for $3,000.” (See 15 Sehgal Ex. B at 3.) Defendant responded that it “believe[d] the package that [they] talked 16 about was in the ball park of $3,000 for 16 high resolution images with rights to use them 17 as [Defendant] s[aw] fit.” (See id. at 2.) 18 On April 21, 2015, Plaintiff sent Defendant an updated invoice for $3,000. (See 1st 19 Supp. Sehgal Decl. ¶ 7; ECF No. 10-5 (“Sehgal Ex. D”).) On June 12, 2015, Plaintiff 20 followed up after seeing one of the relevant photos in an ad in a magazine, asking whether [22] 23 1 Because Defendant has “converted the motion to dismiss into a factual motion by presenting affidavits or other evidence,” see Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004) (quoting [24] Savage v. Glendale Union High Sch., 343 F.3d 1036 , 1039 n.2 (9th Cir. 2003) the Court “may review 25 evidence beyond the complaint without converting the motion to dismiss into a motion for summary judgment.” See id. (citing Savage, 343 F.3d at 1039 n.2 (citing White v. Lee, 227 F.3d 1214, 1242 (9th 26 Cir. 2000))). Under these circumstances, “[t]he court need not presume the truthfulness of the plaintiff’s allegations.” Id. (citing White, 227 F.3d at 1242 ). [27] 2 Pin citations to Sehgal Exhibits B and E refer to the CM/ECF pagination electronically stamped in the [28] 1 Defendant had received the updated invoice and whether there was “an estimated time on 2 when [payment] might be sent out.” (See 1st Supp. Sehgal Decl. ¶ 8; Sehgal Ex. E at 3.) 3 On June 15, 2015, Defendant responded that “the invoice mentions 8 images, but 4 [Defendant] only could really use 3 images from the shoot.” (See id.) Defendant therefore 5 requested “the final invoice for the 3 images that [it] ha[d] chosen[.]” (See id.) Plaintiff 6 responded that same day, explaining that, 7 The service that was originally requested was for the “Half Day Package[,]” which is a set price that gives you the ability to use up to 8 images from the [8] shoot. If you decide not to use the extra images, that’s totally fine and up to 9 you. It’s a set package that allows services to be cheaper versus building out the services a la carte where we itemize the services. [10] 11 (See id. at 2–3.) 12 Plaintiff followed up again on June 24, 2015, to “see . . . if [Defendant] had a chance 13 to receive the last updated invoice.” (See id. at 2.) Defendant responded that same day, 14 acknowledging it “kn[e]w [they] discussed the packages [Plaintiff] offered and decided 8 15 images would be a good amount of content. However, . . . [Defendant] w[as] only able to 16 use 3 of the images so the all-together invoice for the 8 images doesn’t seem to resonate.” 17 (See id.) Defendant added it “was under the impression this invoice would be . . . more 18 fluid as [Defendant] made clear what [its] expectations were.” (See id.) 19 On July 24, 2015, Plaintiff emailed Defendant through its employee Conor Coleman, 20 instructing Defendant “to please stop using all or any of [the relevant photos] until payment 21 is received and . . . we come to an agreement.” (See Jamieson Decl. ¶ 18; ECF No. 11-2 22 (“Jamieson Ex. 1”).) There was no further communication between Plaintiff and 23 Defendant, (see Supp. Sehgal Decl. ¶ 10), and Defendant never paid Plaintiff for the 24 relevant photos. (See Jamieson Decl. ¶ 20.) 25 In August and September 2019, Plaintiff discovered that Defendant was using the 26 relevant photos on its social media accounts and in catalogues, magazines, and 27 merchandise listings. (See Compl. ¶¶ 30–41; Jamieson Decl. ¶ 19.) Plaintiff registered the 28 relevant photographs under Registration No. VA 2-169-518 with the United States 1 Copyright Office on September 6, 2019, (see Compl. ¶ 29; Jamieson Decl. ¶ 22), and again 2 instructed Defendant to cease using the relevant photographs. (See Jamieson Decl. ¶ 20.) 3 Plaintiff subsequently filed a lawsuit against Defendant for copyright infringement 4 in the United States District Court for the District of Colorado nearly five years later on 5 April 21, 2020 (the “Colorado action”). See Complaint, Jamieson v. Hoven Vision LLC, 6 No. 1:20-cv-01122-WJM-KLM (D. Colo. Apr. 21, 2020), ECF No. 1. In the Colorado 7 action, Plaintiff alleged that she was the sole owner of the relevant photos, (see id. ¶ 8), 8 which Defendant was using on its website, catalogs, advertisements, and third-party 9 websites without a license or Plaintiff’s permission or consent. (See id. ¶¶ 10–11.) 10 On June 12, 2020, Defendant moved to dismiss the Colorado action for lack of 11 personal jurisdiction and for sanctions in the form of its attorneys’ fees. See Defendant’s 12 Motion to Dismiss Plaintiff’s Complaint and for Sanctions or in the Alternative to Stay 13 Pending Resolution of Plaintiff’s Counsel’s Suspension from Practicing, Jamieson v. 14 Hoven Vision LLC, No. 1:20-cv-01122-WJM-KLM (D. Colo. June 12, 2020), ECF No. 15; 15 (see also ECF No. 10-7 (“Moskin Decl.”) ¶ 3). In response, Plaintiff voluntarily dismissed 16 the Colorado Action. See Notice of Voluntary Dismissal Pursuant to F.R.C.P. 17 41(a)(1)(A)(i), Jamieson v. Hoven Vision LLC, No. 1:20-cv-01122-WJM-KLM (D. Colo. 18 July 6, 2020), ECF No. 19; (see also Moskin Decl. ¶ 4). 19 Plaintiff initiated the instant action for copyright infringement on January 28, 2022. 20 (See generally Compl.) Generally, she again alleges that she discovered in 2019 that 21 Defendant was using the relevant photos from the 2015 photoshoot despite its failure to 22 compensate her or license the relevant photos. (See generally id.) The instant Motion 23 followed on June 27, 2022. (See generally Mot.) 24 LEGAL STANDARD 25 A party may challenge the court’s subject-matter jurisdiction through a motion filed 26 pursuant to Federal Rule of Civil Procedure 12(b)(1). See Fed. R. Civ. P. 12(b)(1); see 27 also White, 227 F.3d at 1242 . Because “[f]ederal courts are courts of limited jurisdiction,” 28 “[i]t is to be presumed that a cause lies outside this limited jurisdiction.” Kokkonen v. 1 Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). Consequently, “the burden of 2 establishing the contrary rests upon the party asserting jurisdiction.” Id. 3 “Rule 12(b)(1) jurisdictional attacks can be either facial or factual.” White, 227 F.2d 4 at 1242 . “A ‘facial’ attack accepts the truth of the plaintiff’s allegations but asserts that 5 they ‘are insufficient on their face to invoke federal jurisdiction.’” Leite v. Crane Co., 749 6 F.3d 1117, 1121 (9th Cir. 2014) (quoting Safe Air for Everyone, 373 F.3d at 1039 ). “The 7 district court resolves a facial attack as it would a motion to dismiss under Rule 12(b)(6): 8 Accepting the plaintiff’s allegations as true and drawing all reasonable inferences in the 9 plaintiff’s favor, the court determines whether the allegations are sufficient as a legal matter 10 to invoke the court’s jurisdiction.” Id. (citing Pride v. Correa, 719 F.3d 1130, 1133 (9th 11 Cir. 2013)). 12 “A ‘factual’ attack, by contrast, contests the truth of the plaintiff’s factual 13 allegations, usually by introducing evidence outside the pleadings.” Id. (citing Safe Air for 14 Everyone, 373 F.3d at 1039 ; Thornhill Publ’g Co. v. Gen. Tel. & Elec. Corp., 594 F.2d 15 730, 733 (9th Cir. 1979)). “When the defendant raises a factual attack, the plaintiff must 16 support her jurisdictional allegations with ‘competent proof[]’” and “prov[e] by a 17 preponderance of the evidence that each of the requirements for subject-matter jurisdiction 18 has been met.” Id. (citing Hertz Corp. v. Friend, 559 U.S. 77 , 96–97 (2010); Harris v. 19 Rand, 682 F.3d 846, 851 (9th Cir. 2012)). “With one caveat, if the existence of jurisdiction 20 turns on disputed factual issues, the district court may resolve those factual disputes itself.” [21] Id. at 1121–22 (citing Safe Air for Everyone, 373 F.3d at 1039–40; Augustine v. United 22 States, 704 F.2d 1074, 1077 (9th Cir. 1983); Thornhill Publ’g, 594 F.2d at 733 ). “The 23 caveat is that a court must leave the resolution of material factual disputes to the trier of 24 fact when the issue of subject-matter jurisdiction is intertwined with an element of the 25 merits of the plaintiff’s claim.” Id. at 1122 n.3 (citing Safe Air for Everyone, 373 F.3d at 26 1039–40; Augustine, 704 F.2d at 1077 ). 27 / / / 28 / / / 1 ANALYSIS 2 Defendant requests dismissal with prejudice of the instant action for lack of subject3 matter jurisdiction and an award of its attorneys’ fees because “Plaintiff’s assertion of 4 jurisdiction does not appear to be well-grounded in fact or warranted by existing law, and 5 appears to serve an improper purpose of causing needless burden and expense to 6 Defendant.” (See Mot. at 2, 6–7, 13–14 & n.2, 15 n.4, 16.3) Specifically, Defendant 7 contends that, “although the action was (and still is) styled as one for copyright 8 infringement, it is in fact merely a contract dispute.” (See id. at 6.) Plaintiff’s response is 9 three-fold: (1) the Parties never reached an agreement, (see, e.g., Opp’n at 11–13); (2) even 10 if the Parties had reached an agreement, no license was granted because Defendant failed 11 to remit any payment, (see id. at 13–16); and (3) even if the Parties had reached an 12 agreement and Defendant’s failure to remit any payment was not a condition precedent, 13 Plaintiff rescinded the agreement on July 14, 2015. (See id. at 16–19.) 14 As Defendant notes, (see id. at 12), in the Ninth Circuit, [15] an action “arises under” the Copyright Act if and only if the complaint is for 16 a remedy expressly granted by the Act, e.g., a suit for infringement or for the statutory royalties for record reproduction, 17 U.S.C. § 101 , or asserts a claim [17] requiring construction of the Act . . . or, at the very least and perhaps more 18 doubtfully, presents a case where a distinctive policy of the Act requires that federal principles control the disposition of the claim. [19] 20 JustMed, Inc. v. Byce, 600 F.3d 1118 , 1123–24 (9th Cir. 2010) (quoting T.B. Harms Co. v. 21 Eliscu, 339 F.2d 823, 828 (2d Cir. 1964)). Here, Plaintiff explicitly asserts claims under 22 the Act for direct and contributory copyright infringement, (see Compl. ¶¶ 74–89), and 23 seeks remedies expressly granted by the Act. (See id. at Prayer ¶¶ (b)–(d).) Consequently, 24 under Ninth Circuit law, Plaintiff’s action “arises under” the Act. 25 / / / [27] 3 To avoid ambiguity, pin citations to Defendant’s Motion are to the CM/ECF page numbers electronically [28] 1 The Ninth Circuit has cautioned that “[j]urisdictional dismissals in cases premised 2 on federal-question jurisdiction are exceptional,” see Safe Air for Everyone, 373 F.3d at 3 1039 (alteration in original) (quoting Sun Valley Gas., Inc. v. Ernst Enters., 711 F.2d 138 , 4 140 (9th Cir. 1983)), and are only “warranted ‘where the alleged claim under the 5 constitution or federal statutes clearly appears to be immaterial and made solely for the 6 purpose of obtaining federal jurisdiction or where such claim is wholly insubstantial and 7 frivolous.’” See id. (quoting Bell v. Hood, 327 U.S. 678 , 682–83 (1946)). “[Defendant] 8 ha[s] not argued that [Plaintiff]’s federal claims are ‘immaterial,’ ‘made solely for the 9 purpose of obtaining federal jurisdiction,’ or ‘wholly insubstantial and frivolous.’” See id. 10 at 1040 (quoting Bell, 327 U.S. at 682–83). Instead, Defendant essentially argues that 11 Plaintiff cannot own the rights to the relevant photos because Plaintiff contractually 12 assigned her rights to Defendant. (See, e.g., Mot. at 6.) 13 As Plaintiff observes in her Opposition, however, “a court must leave the resolution 14 of material factual disputes to the trier of fact when the issue of subject-matter jurisdiction 15 is intertwined with an element of the merits of the plaintiff’s claim.” (Opp’n at 10 (quoting 16 Leite, 749 F.3d at 1122 n.3).) Whether Plaintiff owns valid copyrights in the relevant 17 photographs such that she has “alleged a claim that comes within [the Copyright Act]’s 18 reach goes to the merits of [her] action.” See Safe Air for Everyone, 373 F.3d at 1040 19 (citing Sun Valley, 711 F.2d at 140 ); see also Beach Front Villas, LLC v. Rogers, No. CV 20 18-00457 LEK-RLP, 2019 WL 1223305 , at *6 (D. Haw. Mar. 15, 2019) (“Here, [the 21 Copyright Act] provides both [Plaintiff]’s substantive claim for relief, as well as federal 22 subject matter jurisdiction over [Plaintiff]’s claim.”). The Court therefore DENIES 23 Defendant’s Motion. See, e.g., Bell, 327 U.S. at 682 (“Jurisdiction, therefore, is not 24 defeated . . . by the possibility that the averments might fail to state a cause of action . . . . 25 For it is well settled that the failure to state a proper cause of action calls for a judgment on 26 the merits and not for a dismissal for want of jurisdiction.”); Safe Air for Everyone, 373 27 F.3d at 1040 (reversing district court’s Rule 12(b)(1) dismissal where jurisdiction and 28 merits were intertwined under the Resource Conservation and Recovery Act of 1976); 1 || Beach Front Villas, 2019 WL 1223305 , at *6 (denying Rule 12(b)(1) motion to remand 2 || where the defendant removed after filing counterclaim for copyright infringement because 3 || the plaintiff's waiver argument went to the merits of the copyright counterclaim). “The 4 || denial of the Motion does not preclude [Defendant] from filing a similar argument in a later 5 ||motion that is more appropriate, such as a motion for summary judgment.” See Beach 6 || Front Villas, 2019 WL 1223305 , at *6. 7 CONCLUSION 8 In light of the foregoing, the Court DENIES Defendant’s Motion to Dismiss (ECF 9 ||No. 10). Defendant SHALL ANSWER the Complaint in accordance with Federal Rule 10 || of Civil Procedure 12(a)(4)(A). 11 IT IS SO ORDERED. 12 ||Dated: October 24, 2022 I [5 14 bre 14 Honorable Todd W. Robinson United States District Judge