Kesey, LLC v. Michele Francis , 433 F. App'x 565 ( 2011 )

FILED
NOT FOR PUBLICATION MAY 16 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KESEY, LLC, an Oregon domestic limited No. 10-35084
liability company,
D.C. No. 3:06-cv-00540-AC
Plaintiff - Appellee,
v. MEMORANDUM *
MICHELE FRANCIS, AKA Mischelle
McMindes; MIKE HAGEN; SUNDOWN
& FLETCHER, INC., an Oregon
corporation,
Defendants - Appellants,
and
KATHERINE WILSON; ASSOCIATES
FILM PRODUCERS SERVICES,
Defendants.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, Senior District Judge, Presiding
Argued and Submitted May 3, 2011
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.
Even assuming that Defendants have not waived their arguments with
respect to copyright ownership of the screenplay for failure to “specifically and
distinctly” make such arguments in their opening brief, see Miller v. Fairchild
Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986), they have failed to identify any
genuine issue of material fact that the screenplay was a work made for hire, that
Defendants were joint authors with Kesey, that Kesey had transferred ownership to
Defendants, or that they have any other basis for claiming ownership of the
copyright.
Nor have Defendants raised any genuine issue of material fact with respect
to their affirmative defenses to the declaratory relief action. Defendants offered no
evidence that they communicated a “plain and express repudiation” of Kesey,
LLC’s (or Ken Kesey’s) copyright ownership in the screenplay before June 2003,
and therefore the statute of limitations does not bar Kesey, LLC’s declaratory relief
action. Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996); see also
Aalmuhammed v. Lee, 202 F.3d 1227, 1230–31 (9th Cir. 2000). Nor is there a
genuine issue of material fact that Kesey, LLC unreasonably delayed in bringing
suit or that Defendants suffered prejudice as a result of that delay, and therefore
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neither laches nor estoppel bars the declaratory relief action. See Miller v. Glenn
Miller Prods., Inc., 454 F.3d 975, 996–97 (9th Cir. 2006) (per curiam); United
States v. King Features Entm’t, Inc., 843 F.2d 394, 399–400 (9th Cir. 1988).
Additionally, we reject Defendants’ challenge to the district court’s evidentiary
rulings because Defendants have not shown any prejudice. See Dream Games of
Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987–88 (9th Cir. 2009).
Finally, because Francis and Hagen knowingly acted on behalf of Sundown
& Fletcher, Inc., after the corporation had been involuntarily dissolved as an
Oregon corporation, the district court properly maintained Kesey, LLC’s suit
against the individual defendants. See Or. Rev. Stat. § 60.054.
Kesey, LLC’s motion to file the novel as part of its supplemental excerpts of
record is denied as moot.
AFFIRMED.
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