The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
The undersigned previously granted plaintiff Daniel K. Chestang's ("plaintiff")*fn1 application to proceed in forma pauperis, screened plaintiff's complaint alleging copyright infringement by defendant Yahoo! Inc. ("defendant" or "Yahoo"), dismissed the complaint without prejudice, and provided plaintiff with leave to file an amended complaint.*fn2 (See Order, Sept. 28, 2011, Dkt. No. 27.) Plaintiff, a prisoner proceeding without counsel and in forma pauperis, timely filed an amended pleading (hereinafter "Second Amended Complaint" or "SAC") (Dkt. No. 33).
Although the undersigned had not ordered the service of plaintiff's pleading upon Yahoo following an analysis of the pleading in accordance with 28 U.S.C. § 1915(e)(2)(B), Yahoo nevertheless filed a Motion to Dismiss the SAC ("Motion"). (Mot. to Dismiss, Dkt. No. 35.) Defendant also filed a supporting Request for Judicial Notice ("RJN"). (RJN, Dkt. No. 41.) In response to defendant's Motion, plaintiff filed an opposition brief ("Opposition"). (Opp'n, Dkt. No. 38.) Defendant filed a reply brief in support of its Motion. (Reply, Dkt. No. 40.) Because defendant's Motion has been fully briefed and because plaintiff has filed a written opposition thereto, this order will address the bulk of that Motion notwithstanding the fact that the complaint has not yet been screened pursuant to 28 U.S.C. § 1915(e)(2). Such screening requiring analyzing whether the pleading states a claim for which relief can be granted, coincides with the analysis required for defendant's pending Motion, which urges dismissal pursuant to Federal Rule 12(b)(6). Accordingly, the below analysis serves both to screen the SAC and to address defendant's Motion pursuant to Rule 12(b)(6).
In screening plaintiff's SAC pursuant to 28 U.S.C. § 1915(e)(2), and in considering defendant's arguments under Federal Rule 12(b)(6), the undersigned finds that plaintiff's SAC fails to state a claim for violation of the Copyright Act, 17 U.S.C. §§ 101 and 102(a)(5). However, because some statements made in plaintiff's Opposition suggest that plaintiff may have intended to allege a trademark claim instead of a copyright claim, the undersigned will give plaintiff one more opportunity to amend his pleading.
Finally, there are two other motions currently pending in this action: plaintiff's "Motion to Request Judgment and Relief" (Dkt. No. 43); and a document entitled "Motion to Amend Motion to Request Ruling Due To Newly Discovered Evidence" (Dkt. No. 44). The undersigned resolves each pending motion below.
Plaintiff filed one complaint for "Copyright Infringement" (Dkt. No. 2) when he initiated this action, filed an amended complaint for "Copyright Infringement" about a month later (Dkt. No. 5), and, in response to the undersigned's order dismissing that amended pleading without prejudice (Dkt. No. 27), filed another amended pleading for "Copyright Infringement" (erroneously styled as a "Second Amended Petition for Writ of Habeas Corpus") (SAC, Dkt. No. 33). Plaintiff's SAC is the pleading addressed herein.
Defendant previously moved to dismiss plaintiff's second pleading (Dkt. No. 12), and the undersigned denied the motion as moot following dismissal of that pleading pursuant to 28 U.S.C. § 1915(e)(2). (Order, Dkt. No. 27.) Although the undersigned did not order service of plaintiff's pleading upon defendant, defendant again moved to dismiss plaintiff's most recent pleading, the SAC. (Mot. to Dismiss, Dkt. No. 35). It is not clear whether plaintiff served defendant with process despite his in forma pauperis status.
The court is required to screen complaints brought by parties proceeding in forma pauperis. See 28 U.S.C. § 1915(e)(2); see also Lopez v. Smith, 203 F.3d 1122, 1129 (9th Cir. 2000) (en banc). Pursuant to 28 U.S.C. § 1915(e)(2), the court is directed to dismiss a case filed pursuant to the in forma pauperis statute if, at any time, it determines that the allegation of poverty is untrue, the action is frivolous or malicious, the complaint fails to state a claim on which relief may be granted, or the action seeks monetary relief against an immune defendant.
A claim is legally frivolous when it lacks an arguable basis either in law or in fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th Cir. 1984). The court may, therefore, dismiss a claim as frivolous if that claim is based on an indisputably meritless legal theory or if the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
In assessing whether a plaintiff's complaint fails to state a claim on which relief can be granted, the court adheres to the "notice pleading" standards. See, e.g., Paulsen v. CNF, Inc., 559 F.3d 1061, 1071 (9th Cir. 2009). The notice pleading standards are codified, in part, in Federal Rule of Civil Procedure 8(a), which provides:
(a) Claim for Relief. A pleading that states a claim for relief must contain:
(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;
(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and
(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.
Additionally, a complaint should be dismissed for failure to state a claim if, taking all well-pleaded factual allegations as true, it does not contain "'enough facts to state a claim to relief that is plausible on its face.'" See Coto Settlement v. Eisenberg, 593 F.3d 1031, 1034 (9th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009)). "'A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Caviness v. Horizon Cmty. Learning Ctr., Inc., 590 F.3d 806, 812 (9th Cir. 2010) (quoting Iqbal, 129 S. Ct. at 1949). The court accepts all of the facts alleged in the complaint as true and construes them in the light most favorable to the plaintiff. Corrie v. Caterpillar, 503 F.3d 974, 977 (9th Cir. 2007). The court is "not, however, required to accept as true conclusory allegations that are contradicted by documents referred to in the complaint, and [the court does] not necessarily assume the truth of legal conclusions merely because they are cast in the form of factual allegations." Paulsen, 559 F.3d at 1071 (citations and quotation marks omitted). The court must ...