United States District Court, D. Oregon
KELLY A. BARNETT, Plaintiff,
UBIMODO, INC., et al, Defendants.
Michael J. McShane United States District Judge:
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.
Plaintiff does not raise a genuine dispute of material fact
with respect to Bedivere, this Court GRANTS Defendant's
Amended Motion for Summary Judgment.
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.
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. Bedivere filed a
Motion for Summary Judgment and Amended Motion for Summary
Judgment on October 15, 2018. ECF Nos. 46 and 49.
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
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.
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.
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).
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
"[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