The opinion of the court was delivered by: The Honorable Gary Allen Feess
Present: The Honorable GARY ALLEN FEESS
Renee Fisher None N/A Deputy Clerk Court Reporter / Recorder Tape No. Attorneys Present for Plaintiffs: Attorneys Present for Defendants: None None Proceedings: (In Chambers)
INTRODUCTION & BACKGROUND
Plaintiff Jason Muirbrook ("Plaintiff") filed this action against Defendants Skechers U.S.A., Inc. and Skechers U.S.A., Inc. II ("Defendants") in Los Angeles County Superior Court. (Docket No. 1 [Not. of Removal], Ex. 1 [Compl.].) Plaintiff alleges Defendants misappropriated Plaintiff's name, likeness, image, and persona, and have been unjustly enriched, by publishing photographs of Plaintiff to enhance the sale of Defendants' products. (Compl.)
Defendants removed the action to this Court on October 12, 2012, asserting this Court's jurisdiction pursuant to 28 U.S.C. § 1331. (Not. of Removal ¶ 5.) Defendants argue that because they own the copyright to the photographs in question, and the use of the photographs is governed by section 301(a) of the Copyright Act, Plaintiff's state law claims are preempted by federal copyright law. (Id.) But that argument misses the mark. The issue here is not ownership of the photographs -- Plaintiff claims none -- or Defendants' alleged use of any copyrighted material owned by Plaintiff. Rather, this lawsuit focuses on the misappropriation of Plaintiff's right of publicity and control over the use of his likeness. That right is defined by state, not federal law, and such claims are not preempted by the Copyright Act. Defendants have therefore failed to establish this Court's subject matter jurisdiction and, accordingly, the Court REMANDS the case to Los Angeles County Superior Court.
Under Federal Rule of Civil Procedure 12(h)(3), "[i]f the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). "[A] court may raise the question of subject matter jurisdiction, sua sponte, at any time during the pendency of the action . . . ." Snell v. Cleveland, Inc., 316 F.3d 822, 826 (9th Cir. 2002); see also United Investors Life Ins. Co. v. Waddell & Reed, Inc., 360 F.3d 960, 966 (9th Cir. 2004) ("Here the district court had a duty to establish subject matter jurisdiction over the removed action sua sponte, whether the parties raised the issue or not."). The Ninth Circuit has held that courts must "strictly construe the removal statute against removal jurisdiction" and reject federal jurisdiction "if there is any doubt as to the right of removal in the first instance." Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir. 1992) (citation omitted). "The strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper." Id. (quotations and citations omitted).
Under 28 U.S.C. § 1441, a defendant may remove to federal court any state court action arising under the Constitution, treaties, or laws of the United States. 28 U.S.C. § 1441(b). "Under the longstanding well-pleaded complaint rule, . . . a suit 'arises under' federal law 'only when the plaintiff's statement of his own cause of action shows that it is based upon federal law.'" Vaden v. Discover Bank, 129 S. Ct. 1262, 1272 (2009) (quoting Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152 (1908)) (alteration omitted). Thus, "[a] federal law defense to a state-law claim does not confer jurisdiction on a federal court." Valles v. Ivy Hill , 410 F.3d 1071, 1075 (9th Cir. 2005) (citing Franchise Tax Bd. of California v. Constr. Laborers Vacation Trust for S. Cal., 463 U.S. 1, 14 (1983)). Rather, a case may "arise under" federal law only where the "well-pleaded complaint ...