Jermaine Howard v. Lucy Pearl ( 2021 )

NOT FOR PUBLICATION FILED
SEP 20 2021
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERMAINE JEVON HOWARD, No. 20-55959
Plaintiff-Appellant, D.C. No.
2:20-cv-05880-MWF-MRW
v.
LUCY PEARL; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Submitted September 14, 2021**
Before: PAEZ, NGUYEN, and OWENS, Circuit Judges.
Jermaine Jevon Howard appeals pro se from the district court’s judgment
dismissing pursuant to 28 U.S.C. § 1915(e)(2) his copyright infringement action.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v.
Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We reverse and remand.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
The district court dismissed Howard’s copyright claims as untimely under
the Copyright Act’s three-year statute of limitations, 17 U.S.C. § 507(b), because
Howard claimed infringement of his copyright in songs that he allegedly co-
authored with defendants in 1996. See Polar Bear Prods., Inc. v. Timex Corp., 384
F.3d 700, 706 (9th Cir. 2004) (copyright claim must be filed within three years
after accrual). In his second amended complaint, Howard alleged that the songs
continue to be sold. Accordingly, we reverse the district court’s dismissal of the
copyright claims for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii)
and remand for consideration of whether the separate accrual rule applies. See
Petrella v. Metro-Goldwyn-Mayer, Inc., 572 U.S. 663, 671 (2014) (under the
separate-accrual rule for copyright claims, “each infringing act starts a new
limitations period”); Oracle Am., Inc. v. Hewlett Packard Enter. Co., 971 F.3d
1042, 1047 (9th Cir. 2020) (three-year statute of limitations runs separately for
each violation).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.
2