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Allen v. Ghoulish Gallery

February 19, 2008

EDWARD ALLEN, AN INDIVIDUAL, PLAINTIFF,
v.
THE GHOULISH GALLERY, AN ENTITY OF UNKNOWN FORM; TIM TURNER, AN INDIVIDUAL, APRIL TURNER, AN INDIVIDUAL, AND DOES 1 [DOC. NO. 149]; THROUGH 10, INCLUSIVE, DEFENDANTS.
TIM TURNER, AN INDIVIDUAL, APRIL TURNER, AN INDIVIDUAL, DBA THE GHOULISH GALLERY, [DOC. NO. 158]. COUNTERCLAIMANTS, EDWARD ALLEN, AN INDIVIDUAL, COUNTERDEFENDANT.



The opinion of the court was delivered by: Hon. Nita L. Stormes U.S. Magistrate Judge

ORDER:

(1) DENYING PLAINTIFF'S EX PARTE APPLICATION FOR EXTENSION OF TIME TO FILE MOTION FOR ATTORNEY'S FEES [Doc. No.

(2) DENYING PLAINTIFF'S MOTION FOR ATTORNEY'S FEES AND COSTS [Doc. No. 156]; and

(3) GRANTING DEFENDANTS' TURNER, MOTION FOR ATTORNEY'S FEES RELEVANT BACKGROUND

The Trial.

The Court held a bench trial in this matter. At trial Edward Allen (Plaintiff) pursued his claims against defendants Tim Turner dba The Ghoulish Gallery and April Turner (collectively, Defendants). At the end of Plaintiff's case defendant April Turner moved for a non-suit. The Court granted the motion.

Before trial April Turner requested to dismiss her counterclaims against Plaintiff. See Mem. & Ruling, p.2, n.1 [Doc. No. 135]. In its Memorandum and Ruling, the Court explained that April Turner was no longer a party in the case, and focused its ruling on Tim Turner (Defendant).

The trial lasted five days. Plaintiff represented himself. He had an assistant with him at counsel's table. The Court afforded both parties thirteen hours and forty-five minutes, exclusive of breaks, to prosecute and defend their respective cases. The Court was mindful that Plaintiff was proceeding with his case pro se and presumably without the help of legal counsel. For example, the Court always accepted Plaintiff's trial documents even though he filed most of them late. See, e.g., Plaintiff's Second Amended Pretrial Disclosures [Doc. No. 75 (due July 11 but filed July 19, 2007)]; Plaintiff's Objections to Defendant's Pretrial Disclosures [Doc. No. 82 (due Aug. 3 but filed Aug. 4, 2007)]; Plaintiff's Oppositions to Motions in Limine [Doc. Nos. 105, 106 (due Sept. 24 but filed Sept. 25, 2007)]; Revised Pretrial Order [Doc. No. 113 (due Sept. 25 but filed Sept. 28, 2007)]; Joint Final Exhibit List [Doc. No. 116 (due Sept. 25 but filed Sept. 28, 2007)]; Plaintiff's Final Witness List [Doc. No. 118 (due Sept. 25 but filed Sept. 28, 2007)]; Plaintiff's Proposed Findings of Fact and Conclusions of Law (Doc. No. 119 (due Sept. 25 but filed Sept. 30, 2007)]. The Court generously gave him a second opportunity to try to present valid evidence of his copyright. And, though Plaintiff ran out of his allotted time at trial, the Court gave him extra time to give a closing argument.

At trial, Plaintiff testified on direct exam until the second afternoon of trial. Most of the exhibits he testified to revolved around the components of the parties' websites, such as the font, gallery pages, frames, background pattern, matting, character biographies and use of the word "Little." He also testified about his copyright claim on re-direct exam. While Plaintiff's direct exam of Defendant touched on all issues, it focused on issues relevant to the copyright claim. Defendant's counsel did a direct exam of Plaintiff on day five of trial, and took significant time to go through each argument Plaintiff posed in his copyright claim and rebutted it with a number of exhibits.

On day one of trial, Plaintiff requested judicial notice of the certificate of copyright registration. The Court denied the request without prejudice because the certificate, on its own, was not evidence of what was allegedly copyrighted. Mindful that he was proceeding pro se, the Court allowed Plaintiff an additional opportunity to provide visual depictions of the copyrighted material. On day four of trial, the Court held a special hearing where Plaintiff presented to the Court and to opposing counsel--for the first time--a copy of a CD rom. The copied CD rom allegedly contained Plaintiff's copyrighted material, and Plaintiff testified that his agent submitted the original CD rom to the copyright office. The Court ultimately denied the request for judicial notice of the CD rom because Plaintiff did not adequately authenticate it. The Court did recognize, however, that Plaintiff presented evidence that screenshots printed from the CD rom were accurate representations of what Plaintiff created and sought to copyright.

In his pre-trial brief, Plaintiff devoted over eleven pages to his copyright claim and used less than seven pages to discuss his remaining five claims. In his post-trial brief, Plaintiff spent over six pages discussing his copyright claim, while he spent less than nine pages discussing his other five claims in the complaint.

The Court's Ruling.

On November 21, 2007, the Court entered judgment as to all the claims and counterclaims. Plaintiff prevailed on his claims for false advertising under the Lanham Act and unfair business practices under California's Business and Professions Code sections 17200 et seq. Defendant successfully defended against Plaintiff's claims for copyright infringement, common law unfair competition, intentional interference with prospective economic advantage and trade libel.

Plaintiff successfully defended all of Defendant's counterclaims, specifically, false advertising under the Lanham Act, false or misleading statements under state law, common law unfair competition, intentional interference with prospective economic advantage, trade libel and defamation.

In its ruling the Court spent over seven pages addressing Plaintiff's copyright claim. It devoted approximately seventeen pages to ...


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