The opinion of the court was delivered by: Honorable David O. Carter, Judge
PRESENT: THE HONORABLE DAVID O. CARTER, JUDGE
Julie Barrera N/A Courtroom Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFF: ATTORNEYS PRESENT FOR DEFENDANT: None Present None Present PROCEEDINGS: (IN CHAMBERS): ORDER DENYING DEFENDANT'S MOTION TO DISMISS, DENYING AS MOOT PLAINTIFF'S MOTION FOR ORDER COMPELLING SERVICE, AND ORDERING PLAINTIFF TO SHOW CAUSE
Before the Court are two motions: (1) a Motion to Dismiss filed by Defendant Source Interlink Magazines, LLC (erroneously sued as Lowrider Arte Magazine) ("Defendant") (Dkt. 11); and (2) a Motion for Order Compelling United States Marshals Service to Comply with Court's Order and Serve Complaint and Summons filed by Plaintiff Joaquin Lafarge ("Plaintiff") (Dkt. 10). After reviewing the motions, opposition, and reply, the Court DENIES Defendant's Motion and DENIES AS MOOT Plaintiff's Motion.*fn1
The Court also ORDERS Plaintiff to SHOW CAUSE why the Court should not dismiss this case for failure to allege copyright registration. Plaintiff shall file a Response on or before September 17, 2012. If Plaintiff fails to do so, this Court shall dismiss WITH PREJUDICE. If Defendant wishes to file a Reply to that Response or to this Order to Show Cause, Defendant must do so on or before October 1, 2012.
The gravamen of Plaintiff Joaquin Lafarge's Complaint is that Defendant Source Interlink Magazines, LLC (erroneously sued as Lowrider Arte Magazine) infringed Plaintiff's copyrights by publishing photographs and images of Plaintiff's oil paintings in its August/September 2010 issue of Lowrider Arte Magazine. The Complaint alleges the following facts.
a.Lowrider Arte Magazine Publication
In August 2010, Defendant published an issue of Lowrider Arte Magazine which included six "full page photographs and images of Plaintiff's original oil paintings" without Plaintiff's consent or authorization. Compl. at ¶ 9. Each of the oil paintings has been "signed by the [P]laintiff/artist Joaquin Lafarge," and prior to the magazine's publication, the works had never been exposed to the public. Id. at ¶¶ 10--14.
b. The Present Lawsuit and Defendant's Motion to Dismiss
On October 13, 2011, Plaintiff filed the present Complaint pro se against Defendant alleging copyright infringement and actual damages in the amount of $250,000. Plaintiff alleges that at the time of publication, the oil paintings "were protected by copyright under the registered trademark of 'NITEOWL'S ART,' Trademark Application No. 78945717." Id. at ¶ 12; see also Opp'n at 2 (Dkt. 13). On June 13, 2012, Defendant brought ...