Free Order on Motion to Dismiss - Rule 12(b)(1) - District Court of Federal Claims - federal

Case 1:06-cv-00427-CFL

Document 15

Filed 03/29/2007

Page 1 of 1

IN THE UNITED STATES COURT OF FEDERAL CLAIMS No. 06-427C (Filed: March 29, 2007) ____________________________________ ) BERNARD d'ABRERA and ) HILL HOUSE PUBLISHERS PTY LTD., ) ) Plaintiffs, ) ) v. ) ) UNITED STATES, ) ) Defendant. ) ____________________________________) ORDER Pending before the court is defendant's motion to dismiss this copyright suit pursuant to Rule 12(b)(1) of the Rules of this court. That motion is predicated on 28 U.S.C. § 1500 and the existence of an action previously filed by the same plaintiffs against the Smithsonian Institution and Stephen Kinyon in the U. S. District Court for the Southern District of New York, involving similar facts. See d'Abrera v. Smithsonian Institution, No. 06 Civ. 3550 (WCC) (S.D.N.Y. filed May 10, 2006). The United States avers that Mr. Kinyon took the actions placed at issue in both this case and the Smithsonian case "with the authorization and consent of the Smithsonian," thus triggering the application of Section 1500 to bar this suit. In the instant case, a hearing and a subsequent status conference were held, and supplemental briefs were filed, to clarify the nature and procedural status of the proceedings in the Smithsonian case. The parties have reported that, as a result of a stipulation in that case, plaintiffs' claim under the Lanham Act was dismissed with prejudice and plaintiffs' copyright claim was ordered transferred to this court pursuant to 28 U.S.C. § 1631. The transfer evidently has not yet been effectuated because this court has not yet received the Smithsonian action. In all the circumstances, the pending motion to dismiss is DENIED without prejudice to renewal if and when the Smithsonian action has been transferred to this court. It is so ORDERED. s/ Charles F. Lettow Judge