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Tur v. YouTube

April 21, 2009

ROBERT TUR, DOING BUSINESS AS LOS ANGELES NEWS SERVICE, PLAINTIFF-APPELLEE,
v.
YOUTUBE, INC., DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Central District of California Florence-Marie Cooper, District Judge, Presiding D.C. No. CV-06-04436-FMC.

Per curiam.

FOR PUBLICATION

Argued and Submitted March 5, 2009 -- Pasadena, California

Before: Diarmuid F. O'Scannlain, Pamela Ann Rymer, and Kim McLane Wardlaw, Circuit Judges.

OPINION

Robert Tur, an award-winning helicopter journalist, sued YouTube, a highly popular online video sharing service, for copyright infringement in the Central District of California. YouTube moved for summary judgment based upon the safe-harbor provision of the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), which the district court denied. Shortly thereafter, Tur, hoping to join a putative New York class action against YouTube that raises similar issues, moved to dismiss his current case. The district court granted Tur's motion to dismiss without prejudice.

YouTube timely appeals from both the grant of the motion to dismiss and the denial of summary judgment. In a memorandum disposition filed concurrently with this opinion, we affirm the dismissal order.

I.

Only an issue of jurisdiction remains: because the underlying case has been dismissed, is YouTube's appeal from the denial of summary judgment moot?*fn1

"The basic question in determining mootness is whether there is a present controversy as to which effective relief can be granted." Nw. Envtl. Def. Ctr. v. Gordon, 849 F.2d 1241, 1244 (9th Cir. 1988). Here, there are two possible controversies which a ruling on the summary judgment might affect: the now-dismissed case in the Central District of California or the pending class action in New York. "A dismissal without prejudice," however, "leaves the parties where they would have stood had the lawsuit never been brought." Navellier v. Sletten, 262 F.3d 923, 938 (9th Cir. 2001). Clearly, YouTube cannot escape mootness by claiming that an underlying ruling would affect the California case. No matter what we might have done with review of the denial of summary judgment, this case is no longer proceeding in California.

[1] We are left with YouTube's claim that, because a reversal of the district court's denial of summary judgment would have a preclusive effect on Tur's claims in the New York litigation, the case is not moot. The question is whether, after the case on appeal has been dismissed voluntarily, we may review an earlier order in the same case on the grounds that resolving it might have a collateral estoppel or a res judicata effect on pending litigation in another jurisdiction.

[2] We cannot. Mootness is jurisdictional. It is circular to argue that a case is live because resolving it may produce a preclusive effect, because it may produce such a preclusive effect only if it is live. As we have previously held:

[S]ince a dismissal for mootness is a dismissal for lack of jurisdiction, and a court that has no jurisdiction cannot enter a judgment with preclusive effect [,] . . . it is circular to argue that a judgment is not moot because it may have preclusive effect, when it can have preclusive effect only if it is not moot. That determination must rest on more than the truism that a final judgment can collaterally estop parties (and sometimes nonparties) in future litigation.

In re Pattullo, 271 F.3d 898, 901 (9th Cir. 2001) (internal citation and quotation marks omitted). For the same reasons, an issue is moot even if resolving it would prevent an identical or similar ...


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