Free Response in Opposition to Motion - District Court of California - California

Case 3:07-cv-02310-LAB-AJB

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Filed 03/18/2008

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KLINEDINST PC 501 WEST BROADWAY, STE. 600 SAN DIEGO, CALIFORNIA 92101

Greg A. Garbacz, Bar No. 167007 Gregor A. Hensrude, Bar No. 226660 KLINEDINST PC 501 West Broadway, Suite 600 San Diego, California 92101 (619) 239-8131/FAX (619) 238-8707 [email protected] Keith J. Grady, Esq. Robert S. Kenney, Esq. Polsinelli Shalton Flanigan Suelthaus PC 100 South Fourth Street, Suite 1100 St. Louis, Missouri 63102 314-889-8000/FAX 314-231-1776 Attorneys for Defendants LEGACY DECORATIVE CONCRETE SYSTEMS, INC. and SOLOMON COLORS, INC. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA PROLINE CONCRETE TOOLS, INC., a California corporation, Plaintiff, v. GORD DENNIS, an individual; CADILLAC CONCRETE PRODUCTS, LTD., an unknown business form located in British Columbia, Canada; CREATIVE URETHANE CONCEPTS, INC., a South Carolina Corporation; UNIVERSAL BUILDING PRODUCTS, INC., an Illinois Corporation; LEGACY DECORATIVE CONCRETE SYSTEMS, INC., an Illinois Corporation; SOLOMON COLORS, INC., an Illinois Corporation; and DOES 1 through 20, inclusive, Defendants. Case No. 07 CV 2310 LAB (AJB)

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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS
Date Time: Dept: Judge: Complaint Filed: Trial Date: None set

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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS 07 CV 2310 LAB (AJB)

Case 3:07-cv-02310-LAB-AJB

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KLINEDINST PC 501 WEST BROADWAY, STE. 600 SAN DIEGO, CALIFORNIA 92101

Defendants Legacy Decorative Concrete Systems, Inc. ("Legacy") and Solomon Colors, Inc. ("Solomon") (collectively referred to herein as "Defendants"), hereby submit their Reply to Plaintiff's Response to Motion to Dismiss ("Response"). I. INTRODUCTION Defendants moved to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(1) because Plaintiff pleads insufficient facts regarding its alleged ownership of a valid, federally-registered copyright. Defendants also move to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted because Plaintiff's Complaint alleges insufficient facts to give Defendants fair notice as to the nature of Plaintiff's claim and the grounds upon which it rests. In its Response, Plaintiff does nothing more than repeat the bare allegations in its deficient Complaint. Plaintiff does not identify with any specificity the "certain decorative concrete stamps" that are allegedly the subject of this lawsuit. Plaintiff's Response does nothing to negate Defendants' Motion to Dismiss. Defendants' Motion should, therefore, be granted. II. ARGUMENT A. Plaintiff's Complaint Should Be Dismissed for Failure to State a Claim Plaintiff has not, in its Complaint or in its Response, provided the level of factual specificity required by Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955 (2007). While, a complaint need not provide detailed factual allegations, it must recite enough factual specificity to provide the defendant with knowledge of the grounds for the plaintiff's entitlement to relief. A "formulaic recitation of the elements of a cause of action will not do." Id. at 1964. Where a plaintiff pleads insufficient facts under a cognizable legal theory, dismissal pursuant to Rule 12(b)(6) is appropriate. Atlantic Recording Corp. v. Serrano, No. 07-CV-1824 W (JMA), 2007 U.S. Dist. LEXIS 95203, at *5 (S.D. Cal. Dec. ///
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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS 07 CV 2310 LAB (AJB)

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Case 3:07-cv-02310-LAB-AJB

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KLINEDINST PC 501 WEST BROADWAY, STE. 600 SAN DIEGO, CALIFORNIA 92101

27, 2007), citing Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 534 (9th Cir. 1984). Here, Plaintiff's Response, just like its Complaint, does nothing but engage in a formulaic recitation of the elements of a copyright infringement claim. Plaintiff does not, however, allege any specific facts, as required by Twombly, to inform Defendants of the factual basis for Plaintiff's claims. To establish a copyright infringement claim, a plaintiff must allege: (1) that it owns a valid copyright; and (2) that the defendant copied constituent elements of the work that are original. Feist Pub., Inc. v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). Plaintiff must also allege, in support of the second element, that "the infringer had access to plaintiff's copyrighted work and that the works at issue are substantially similar in their protected elements." Cavalier v. Random House, Inc., 297 F.3d 815, 827 (9th Cir. 2002). Plaintiff has not alleged sufficient facts to satisfy either element (1) or element (2). In this case, Plaintiff simply asserts that it owns a copyright and that Defendants misappropriated Plaintiff's copyright. Plaintiff alleges nothing more. Plaintiff does not allege, with any factual specificity, the particular decorative concrete stamps in which it allegedly holds a valid copyright. It does not allege the nature and the extent of Defendants' alleged infringement or which decorative concrete stamps Defendants allegedly infringed. Plaintiff's bare assertions do not give the Defendants fair notice of Plaintiff's claim and the grounds upon which it rests. As instructed by Twombly, a plaintiff cannot survive a Rule 12(b)(6) motion to dismiss by simply engaging in a rote recitation of conclusory facts, which stand unsupported by any specific allegations. Merely providing labels and conclusions does not satisfy Rule 8. In sum, a court need not accept as true "conclusory legal allegations cast in the form of factual allegations." See Stewart v. Wachowski, No. CV 03-2873 MMM (VBKx), 2004 U.S. Dist. LEXIS 26608, at *8 (C.D. ///
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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS 07 CV 2310 LAB (AJB)

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Case 3:07-cv-02310-LAB-AJB

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KLINEDINST PC 501 WEST BROADWAY, STE. 600 SAN DIEGO, CALIFORNIA 92101

Cal. Sept. 28, 2004). Accordingly, the Court should dismiss Plaintiff's Complaint pursuant to Rule 12(b)(6) for failure to stat a claim for relief. B. Plaintiff's Complaint Should Be Dismissed for Lack of Subject Matter Jurisdiction. Additionally, Plaintiff's Response does nothing to establish that this Court has jurisdiction over the subject matter of this lawsuit. Plaintiff has not properly alleged ownership of a valid, federally-registered copyright. Beyond Plaintiff's bare assertions, there are no facts alleged that establish Plaintiff's ownership of valid federally registered copyrights. And where a copyright is not federally registered, federal courts do not have jurisdiction of a copyright infringement claim brought pursuant to 17 U.S.C. § 101, et seq. 17 U.S.C. § 411; Just Water Heaters v. Affordable Water Heaters and Plumbing, Inc., 2006 U.S. Dist. LEXIS 9006, *7 (N.D. Cal. Feb. 23, 2006) (dismissing a copyright infringement claim where the plaintiff did not plead possession of a certificate of registration). Plaintiff's Complaint should, therefore, be dismissed for lack of subject matter jurisdiction. III. CONCLUSION Plaintiff's Complaint does not comply with the Federal Rules of Civil Procedure or the Supreme Court's recent teachings in Twombly. Plaintiff's Complaint alleges no facts sufficient to give Legacy and Solomon fair notice as to the nature of Plaintiff's claim or the grounds upon which it rests. Plaintiff's Complaint should be dismissed for failure to state a claim upon which relief can be granted. Next, Plaintiff's Response does nothing more than restate the bare assertions set forth in its fatally defective Complaint, which pleads no facts sufficient to support its allegation of ownership of a valid, federally-registered copyright. This fact, alone, divests this Court of jurisdiction over the subject matter and requires dismissal of Plaintiff's Complaint. /// ///
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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS 07 CV 2310 LAB (AJB)

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Case 3:07-cv-02310-LAB-AJB

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KLINEDINST PC 501 WEST BROADWAY, STE. 600 SAN DIEGO, CALIFORNIA 92101

Defendants Legacy Decorative Concrete Systems, Inc. and Solomon Colors, Inc. respectfully request that the Court dismiss with prejudice Plaintiff's Complaint, award Defendants their fees and costs and for such other and further relief as the Court deems just and proper.

KLINEDINST PC

DATED: March 18, 2008

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7101-1001 570884v1

By: /s/ Gregor A. Hensrude GREGOR A. HENSRUDE Attorneys for Defendants LEGACY DECORATIVE CONCRETE SYSTEMS, INC. and SOLOMON COLORS, INC.

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DEFENDANTS' REPLY TO PLAINTIFF'S RESPONSE TO MOTION TO DISMISS 07 CV 2310 LAB (AJB)