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Read It Here Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 1 of 34 Page ID #:166 1 CALDWELL LESLIE & PROCTOR, PC LINDA M. BURROW, State Bar No. 194668 2 [email protected] KELLY L. PERIGOE, State Bar No. 268872 3 [email protected] 725 South Figueroa Street, 31st Floor 4 Los Angeles, California 90017-5524 Telephone: (213) 629-9040 5 Facsimile: (213) 629-9022 6 Attorneys for TWENTIETH CENTURY FOX FILM CORPORATION; LEE 7 DANIELS; DANNY STRONG; TERRENCE HOWARD; AND 8 MALCOLM SPELLMAN 9 UNITED STATES DISTRICT COURT 10 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION 11 12 RON NEWT, Case No. 2:15-CV-2778-CBM-JPR 13 Plaintiff, NOTICE OF MOTION AND 14 MOTION OF LEE DANIELS, v. DANNY STRONG, TERRENCE 15 HOWARD, AND MALCOLM TWENTIETH CENTURY FOX FILM SPELLMAN TO DISMISS FIRST 16 CORPORATION; LEE DANIELS; AMENDED COMPLAINT WITH DANNY STRONG; TERRENCE PREJUDICE PURSUANT TO 17 HOWARD; MALCOLM SPELLMAN, FEDERAL RULE OF CIVIL and DOES 1-10, inclusive, PROCEDURE 12(b)(6); 18 MEMORANDUM OF POINTS AND Defendants. AUTHORITIES 19 [[Proposed] Order; Declaration of 20 Kelly L. Perigoe; Request for Judicial DEADLINE.comNotice and [Proposed] Order filed 21 concurrently herewith] 22 The Honorable Consuelo B. Marshall 23 Date: November 24, 2015 Time: 10:00 a.m. 24 Courtroom: 2 25 26 27 28 CALDWELL LESLIE & PROCTOR DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 2 of 34 Page ID #:167 1 TO ALL PARTIES AND TO THEIR COUNSEL OF RECORD: 2 PLEASE TAKE NOTICE that on November 24, 2015 at 10:00 a.m. or as 3 soon thereafter as this matter may be heard, in the courtroom of the Honorable 4 Consuelo B. Marshall, located in the United States Courthouse, 312 N. Spring 5 Street, Courtroom 2, Los Angeles, CA 90012, Defendants Lee Daniels, Danny 6 Strong, Terrence Howard, and Malcolm Spellman (collectively, “Defendants”) will 7 and hereby do move this Court to dismiss Plaintiff’s First Amended Complaint 8 (“FAC”) with prejudice, pursuant to Federal Rule of Civil Procedure 12(b)(6), on 9 the following grounds: 10 Plaintiff’s first cause of action for copyright infringement fails because, 11 as a matter of law, the works at issue are not substantially similar to 12 Defendants’ television series in a manner protected by copyright law. 13 Plaintiff’s claim for copyright infringement based on his screenplay and 14 DVD fails for the additional reason that the copyright application 15 attached to the FAC is defective as a matter of law. 16 Plaintiff’s second cause of action for breach of implied contract fails as 17 to Defendants Daniels, Strong, and Spellman because Plaintiff fails to 18 plead facts showing that Defendants Daniels, Strong, or Spellman had 19 or could have had contractual privity with Plaintiff, and fails as to all 20 DefendantsDEADLINE.com because Plaintiff fails to allege that any Defendant actually 21 used the works. 22 Because the defects in Plaintiff’s FAC cannot be cured by amendment 23 of the FAC, the FAC should be dismissed with prejudice. 24 This Motion is based on this Notice of Motion, the accompanying 25 Memorandum of Points and Authorities, the Declaration of Kelly L. Perigoe and 26 Request for Judicial Notice and exhibits thereto filed concurrently herewith, all of 27 the pleadings and other documents on file in this case, all other matters of which the 28 CALDWELL LESLIE & -1- PROCTOR DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 3 of 34 Page ID #:168 1 Court may take judicial notice, and any further argument or evidence that may be 2 received by the Court at the hearing. 3 Pursuant to Local Rule 7-3, counsel for Defendant called counsel for Plaintiff 4 to meet and confer regarding this Motion on October 6, 2015, and at the request of 5 Plaintiff’s counsel, followed up by email setting forth the grounds for this Motion. 6 The parties discussed the issues presented in this Motion by telephone on October 8, 7 2015, but were unable to resolve them. See Declaration of Kelly L. Perigoe, ¶ 2. 8 9 DATED: October 15, 2015 CALDWELL LESLIE & PROCTOR, PC 10 LINDA M. BURROW KELLY L. PERIGOE 11 12 13 By /s/ 14 LINDA M. BURROW Attorneys for TWENTIETH CENTURY FOX 15 FILM CORPORATION; LEE DANIELS; 16 DANNY STRONG; TERRENCE HOWARD; AND MALCOLM SPELLMAN 17 18 19 20 DEADLINE.com 21 22 23 24 25 26 27 28 CALDWELL LESLIE & -2- PROCTOR DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 4 of 34 Page ID #:169 1 TABLE OF CONTENTS Page 2 3 MEMORANDUM OF POINTS AND AUTHORITIES.............................................1 4 I. INTRODUCTION.............................................................................................1 5 II. FACTUAL BACKGROUND ...........................................................................3 6 A. Plaintiff’s Works.....................................................................................3 7 B. The Empire Television Series.................................................................7 8 C. Plaintiff’s Allegations Regarding Disclosure of the Works to Howard....................................................................................................8 9 D. Plaintiff’s Action.....................................................................................9 10 III. LEGAL STANDARD FOR RULE 12(b)(6) MOTION ...................................9 11 IV. THE FAC SHOULD BE DISMISSED WITH PREJUDICE .........................10 12 A. Plaintiff Cannot State a Claim for Copyright Infringement .................10 13 1. Empire Is Not Substantially Similar to Plaintiff’s Works..........11 14 (a) Plot and Sequence of Events ............................................12 15 (i) Plaintiff Mischaracterizes Empire and His 16 Works .....................................................................12 17 (ii) Plaintiff Identifies No Protectable Similarities .............................................................13 18 (b) Characters.........................................................................14 19 (i) Lucious Lyon and Plaintiff ....................................15 20 DEADLINE.com(ii) Cookie Lyon and China Doll .................................16 21 (iii) The Sons.................................................................17 22 (c) Dialogue ...........................................................................18 23 (d) Mood.................................................................................18 24 (e) Theme...............................................................................19 25 (f) Pace...................................................................................20 26 (g) Setting...............................................................................20 27 2. The Application to Register the DVD & Screenplay Is 28 Invalid .........................................................................................21 CALDWELL LESLIE & -i- PROCTOR DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 5 of 34 Page ID #:170 1 B. Plaintiff Cannot State a Claim for Breach of Implied Contract............22 2 1. Plaintiff Fails to Allege a Contract with Defendants Daniels, Strong, and Spellman ...................................................22 3 2. Plaintiff Does Not and Cannot Allege Use.................................24 4 (a) Plaintiff Fails to Allege Use by Defendants.....................24 5 (b) The Ideas in the Works are Not Similar...........................24 6 C. Leave to Amend Would Be Futile ........................................................25 7 V. CONCLUSION ...............................................................................................25 8 9 10 11 12 13 14 15 16 17 18 19 20 DEADLINE.com 21 22 23 24 25 26 27 28 CALDWELL LESLIE & -ii- PROCTOR DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS FIRST AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES Case 2:15-cv-02778-CBM-JPR Document 32 Filed 10/15/15 Page 6 of 34 Page ID #:171 1 TABLE OF AUTHORITIES 2 Page(s) 3 Cases 4 Althouse v. Warner Bros. Entm’t, 5 No. CV 13-00696, 2014 WL 2986939 (C.D. Cal. Apr. 28, 2014).......................16 6 Ashcroft v. Iqbal, 7 556 U.S. 662 (2009) ...........................................................................................2, 9 8 Benay v. Warner Bros. Entm’t, Inc., 9 607 F.3d 620 (9th Cir. 2010).........................................................................passim 10 Benjamin v. Walt Disney Co., No. CV 05-2280GPS, 2007 WL 1655783 (C.D. Cal. June 5, 2007) .............15, 20 11 12 Berkic v. Crichton, 761 F.2d 1289 (9th Cir. 1985)..............................................................................13 13 Bernal v. Paradigm Talent & Literary. Agency, 14 788 F.Supp.2d 1061 (C.D. Cal. 2010)..................................................................13 15 Campbell v. Walt Disney Co., 16 718 F.Supp.2d 1108 (N.D. Cal. 2010)................................................19, 20, 21, 25 17 Capcom Co., Ltd. v. MKR Grp., Inc., 18 No. C 08-0904 RS, 2008 WL 4661479 (N.D. Cal. Oct. 20, 2008)..........17, 18, 20 19 Cavalier v. Random House, Inc., 20 297 F.3d 815DEADLINE.com (9th Cir. 2002)....................................................................11,
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