United States District Court, N.D. California, San Jose Division
HARRY J. WILLIBY, Plaintiff,
HEARST CORPORATION, et al., Defendants.
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS AND
DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE AMENDED
COMPLAINT RE: DKT. NOS. 79, 87
J. DAVILA United States District Judge.
Harry Williby brings claims against Defendants Hearst
Corporation, Hearst Television, Inc., and Ernesto Mourelo
arising from a comment that Mourelo left on Williby's
YouTube channel. Defendants move to strike under
California's anti-SLAPP statute and to dismiss for
failure to state a claim, for lack of personal jurisdiction,
and for failure to serve process. Williby also seeks leave to
file an amended complaint.
motion to dismiss will be GRANTED. Williby's motion for
leave to file an amended complaint will be DENIED.
operates a YouTube channel where he posts a variety of
videos, including clips from news broadcasts. First Am. Compl.
(“FAC”) ¶ 39, Dkt. No. 75. Defendant Ernesto
Mourelo, an employee of Hearst Television, Inc.
(“HTV”), sent a series of DMCA takedown notices
to YouTube because he believed that Williby uploaded videos
that infringed HTV's copyrights. Id. ¶ 41.
Williby responded by filing DMCA counter-notices.
Id. ¶ 42. After the videos were re-posted to
YouTube, Mourelo posted a comment on Williby's YouTube
channel page that stated: “Fight Piracy on YouTube. You
stole this clip from a legitimate news source. It's
called copyright infringement.” Id. ¶ 48.
then filed this action, pro se, bringing claims for
defamation and intentional interference with prospective
economic relations against the Hearst Corporation and Ernesto
Mourelo. Compl., Dkt. No. 1. Defendants moved to dismiss or
strike. Dkt. No. 49. This Court granted Defendants'
motion to dismiss, with leave to amend, on the basis that (1)
the Hearst Corporation was not a proper defendant and (2)
this Court lacked personal jurisdiction over Mourelo. Order
Granting Defs.' Mot. to Dismiss (“MTD
Order”), Dkt. No. 73.
filed an amended complaint (Dkt. No. 75), and Defendants now
move to dismiss or strike. Defs.' Mot. to Dismiss or
Strike (‘MTD”), Dkt. No. 79. Williby did not
oppose Defendants' motion. Williby has also moved for
leave to file a second amended complaint. Dkt. No. 87.
Civ. P. 12(b)(2) allows dismissal for lack of personal
jurisdiction. When the motion to dismiss is a defendant's
first response to the complaint, the plaintiff need only make
a prima facie showing that personal jurisdiction exists.
See Data Disc, Inc. v. Sys. Tech. Assocs., Inc., 557
F.2d 1280, 1285 (9th Cir. 1977). While a plaintiff cannot
“ ‘simply rest on the bare allegations of its
complaint, ' uncontroverted allegations in the complaint
must be taken as true” and “[c]onflicts between
parties over statements contained in affidavits must be
resolved in the plaintiff's favor.”
Schwarzenegger v. Fred Martin Motor Co., 374 F.3d
797, 800 (9th Cir. 2004) (quoting Amba Marketing Sys.,
Inc. v. Jobar Int'l, Inc., 551 F.2d 784, 787 (9th
Cir. 1977), and citing AT&T v. Compagnie Bruxelles
Lambert, 94 F.3d 586, 588 (9th Cir. 1996)).
motion to dismiss under Fed.R.Civ.P. 12(b)(6) tests the legal
sufficiency of claims alleged in the complaint. Parks
Sch. of Bus., Inc. v. Symington, 51 F.3d 1480, 1484 (9th
Cir. 1995). Dismissal “is proper only where there is no
cognizable legal theory or an absence of sufficient facts
alleged to support a cognizable legal theory.”
Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001).
The complaint “must contain sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.' ” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
Pro Se Pleadings
pleadings must be construed liberally. Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000). The Court
“need not give a plaintiff the benefit of every
conceivable doubt” but “is required only to draw
every reasonable or warranted factual inference in the
plaintiff's favor.” McKinney v. De Bord,
507 F.2d 501, 504 (9th Cir. 1974). The Court “should
use common sense in interpreting the frequently diffuse
pleadings of pro se complainants.” Id. A pro
se complaint should not be dismissed unless the court finds
it “beyond doubt ...