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Barnett v. Ubimodo Inc.

United States District Court, D. Oregon

January 9, 2019

KELLY A. BARNETT, Plaintiff,
v.
UBIMODO, INC., et al, Defendants.

          ORDER

          Michael J. McShane United States District Judge:

         Defendant Bedivere Insurance Company ("Bedivere") moves for summary judgment pursuant to Fed.R.Civ.P. 56. Def's Am. Mot., ECF No. 49. Plaintiff Kelly A. Barnett, proceeding pro se, alleges copyright infringement against several Defendants, including Bedivere. Pl.'s Second Am. Compl. 4-48, ECF No. 41 ("Pl.'s SAC"). Bedivere argues that it has a limited connection to Defendant Ubimodo, Inc., no connection to Plaintiff, and cannot be accused of contributory or vicarious copyright infringement. Def's Am. Mot. 4-14.

         Because Plaintiff does not raise a genuine dispute of material fact with respect to Bedivere, this Court GRANTS Defendant's Amended Motion for Summary Judgment.

         BACKGROUND

         In February 2017, Dean Carberry, a reinsurance broker at Atlantic Security Reinsurance Brokers Ltd., gave Bedivere a Private Placement Offering Memorandum ("Memorandum") and Scott Warner, Ubimodo's Chief Executive Officer, gave Bedivere a "due diligence package" about Ubimodo. Def's Am. Mot. 5; Schleider DecL, ECF No. 47, ¶ 4. In June 2017, Bedivere invested $1.5 million in Ubimodo. Def.'s Am. Mot. 5; Schleider Decl., ¶ 5. In fall 2017, Plaintiff called Marcus Doran, Bedivere's Chief Operating Officer. Pl.'s SAC 38; Def.'s Am. Mot. 6; Doran Decl., ECF No. 57, ¶ 3. Plaintiff asked Doran if her intellectual property played a role in Bedivere's investment in Ubimodo. Pl.'s SAC 38; Doran Decl., ¶ 5. Plaintiff states that she requested and Doran agreed to initiate an investigation. Pl.'s SAC 39; Pl.'s Resp. 9. Doran states that he told Plaintiff he would "look into the matter" but did not mean that he would open a formal investigation. Doran Decl., ¶ 3. There does not appear to have been any other contact between Plaintiff and Bedivere.

         Plaintiff initiated the present action on March 9, 2018 and filed an Amended Complaint on April 27, 2018, alleging copyright infringement, among other things. ECF Nos. 1 and 14. This Court dismissed all of Plaintiffs claims with prejudice except her copyright infringement claim, which was dismissed without prejudice. Op. and Order, ECF No. 40. Plaintiff filed a SAC on September 21, 2018, again alleging copyright infringement. Pl.'s SAC 4, ECF No. 41.[1] Bedivere filed a Motion for Summary Judgment and Amended Motion for Summary Judgment on October 15, 2018. ECF Nos. 46 and 49.

         STANDARD OF REVIEW

         This Court must grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). An issue is "genuine" if a reasonable jury could find in favor of the non-moving party. Rivera v. Phillip Morris, Inc., 395 F.3d 1142, 1146 (9th Cir. 2005) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). A fact is "material" if it could affect the outcome of the case. Id.

         The Court reviews evidence and draws inferences in the light most favorable to the nonmoving party. Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006) (quoting Hunt v. Cromartie, 526 U.S. 541, 552 (1999)). When the moving party has met its burden, the nonmoving party must present "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). The "mere existence of a scintilla of evidence in support of the plaintiffs position [is] insufficient" to avoid summary judgment. Liberty Lobby, Inc., 477 U.S. at 252. Uncorroborated allegations and "self-serving testimony" are also insufficient. Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002).

         DISCUSSION

         Bedivere argues that Plaintiff fails to raise a genuine issue of fact regarding her copyright infringement claim and moves for summary judgment as to all claims against it. Def.'s Am. Mot. 2.

         A plaintiff may allege direct, contributory, or vicarious copyright infringement. Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004). "To prove a claim of direct copyright infringement, a plaintiff must show that he owns the copyright and that the defendant himself violated one or more of the plaintiffs exclusive rights under the Copyright Act." Id. (citation omitted). One may be liable for contributory infringement if they induce, cause, or materially contribute to another's infringing conduct with knowledge of the infringing activity. Id. at 1076 (citation omitted). One may be liable for vicarious infringement if they enjoy "a direct financial benefit from another's infringing activity and 'ha[ve] the right and ability to supervise' the infringing activity." Id. at 1076 (citations omitted) (emphasis in original).

         Here, Plaintiff appears to allege vicarious and contributory, not direct, copyright infringement against Bedivere. Plaintiff does not allege that Bedivere violated one of Plaintiff s rights under the Copyright Act. Instead, Plaintiff alleges that Warner, Ubimodo, and The Soteria Institute "induced" Starr Companies' and Bedivere's "third-party infringement of her intellectual property." Pl.'s SAC 44. Plaintiffs Reply to Bedivere's Answer to her First Amended Complaint provides further insight:

"[Bedivere is] responsible for induced infringement of copyright from direct infringement of [] Warner and his affiliated companies and stand[s] to artificially gain from the Plaintiff's misappropriated trade secrets being ...

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