Ibraheem Abbas v. Vertical Entertainment, LLC ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 3 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
IBRAHEEM ABBAS, No. 19-56248
Plaintiff-Appellant, D.C. No.
2:18-cv-07399-CBM-AFM
MICHAEL S. TRAYLOR, Counsel for
Plaintiff,
MEMORANDUM*
Appellant,
v.
VERTICAL ENTERTAINMENT, LLC; et
al.,
Defendants-Appellees,
and
CRIMSON MULTIMEDIA, LTD.; et al.,
Defendants.
IBRAHEEM ABBAS, No. 19-56279
Plaintiff-Appellee, D.C. No.
2:18-cv-07399-CBM-AFM
v.
MICHAEL S. TRAYLOR, Counsel for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Plaintiff,
Appellee,
VERTICAL ENTERTAINMENT, LLC; et
al.,
Defendants-Appellants,
and
CRYSTALSKY MULTIMEDIA
MARKETING, INC.; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
Consuelo B. Marshall, District Judge, Presiding
Submitted July 30, 2021**
Pasadena, California
Before: M. SMITH and OWENS, Circuit Judges, and MÁRQUEZ,*** District
Judge.
Plaintiff/Appellant/Cross-Appellee Ibraheem Abbas (Abbas) appeals
dismissal of his copyright-infringement claims against several foreign individuals
and entities relating to the animated film Bilal: A New Breed of Hero (Bilal). Abbas
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Rosemary Márquez, United States District Judge for the
District of Arizona, sitting by designation.
2
also appeals the district court’s orders imposing sanctions against his counsel under
Federal Rule of Civil Procedure 11 and denying him leave to amend his complaint.
Defendants/Appellees/Cross-Appellants Ayman Jamal (Jamal), Barajoun
Entertainment FZ-LLC (Barajoun), Vertical Entertainment, LLC (Vertical), Resnick
Interactive Development, LLC (Resnick), and Lakeshore Records, LLC (Lakeshore)
(collectively, Appellees), cross appeal the denial of a motion for attorney’s fees and
costs under 17 U.S.C. § 505, and the motion for Rule 11 sanctions to the extent the
district court failed to award the full amount sought and did not impose sanctions
jointly against Abbas and his counsel. Because the parties are familiar with the facts,
we do not recount them here, except as necessary to provide context to our ruling.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district
court’s dismissal for lack of personal jurisdiction, Schwarzenegger v. Fred Martin
Motor Co., 374 F.3d 797, 800 (9th Cir. 2004), and review an order denying
reconsideration for an abuse of discretion, Kerr v. Jewell, 836 F.3d 1048, 1053 (9th
Cir. 2016).
1. The district court properly granted Jamal’s and Barajoun’s motion to dismiss
for lack of personal jurisdiction.1 Abbas fails to establish that Jamal or Barajoun had
any contacts with California that would permit the court to exercise personal
1
We previously granted Crystalsky Multimedia Marketing, Inc.’s (Crystalsky)
motion to dismiss the appeal because Abbas did not mention Crystalsky in his
opening brief.
3
jurisdiction over them. See Schwarzenegger, 374 F.3d at 800; Cal. Code Civ. Proc
§ 410.10. Specifically, Abbas fails to satisfy the effects test from Calder v. Jones,
465 U.S. 783, 787 (1984), and fails to show that his claims arise out of any contacts
that Jamal or Barajoun purportedly had with California under Walden v. Fiore, 571
U.S. 277, 284 (2014). See Bristol-Myers Squibb Co. v. Superior Ct. of California,
San Francisco Cnty., 137 S.Ct. 1773, 1783 (2017).
2. The district court did not abuse its discretion by denying Abbas’ motion for
reconsideration of the order dismissing Jamal and Barajoun for lack of personal
jurisdiction. The district court applied the correct legal standard and properly denied
the motion because Abbas provided no legal support for his argument that purported
consent to jurisdiction in an unrelated dispute could establish personal jurisdiction
over Jamal and Barajoun in this case. See Szynalski v. Superior Court, 172 Cal. App.
4th 1, 7–8 (2009).
3. We review the district court’s decision to impose sanctions under Federal Rule
of Civil Procedure 11 for an abuse of discretion. See Cooter & Gell v. Hartmarx
Corp., 496 U.S. 384, 405 (1990). The district court issued sanctions against Abbas’
counsel after finding the jurisdictional allegations in the complaint—that Jamal is a
“resident of the County of Los Angeles” and that Barajoun has a “principal place of
business in Los Angeles County”—were “undisputedly false.” Abbas admits these
statements were false, but contends sanctions were inappropriate because the
4
allegations were made “on information and belief” and “carefully crafted” to
“cautiously” allege the defendants’ residences. But Abbas offers no authority
supporting his contention that issuing Rule 11 sanctions is an abuse of discretion
when demonstrably false allegations are levied in a carefully crafted fashion. In light
of the district court’s findings regarding the demonstrable falsity of the jurisdictional
allegations, the district court did not abuse its discretion by awarding attorney’s fees
under Rule 11 for the costs of defending against those frivolous allegations. See
Holgate v. Baldwin, 425 F.3d 671, 676–77 (9th Cir. 2005).
4. On cross appeal, Appellees contend the district court abused its discretion by
not awarding sanctions jointly and severally against Abbas and his counsel, and by
limiting the award of attorney’s fees to only those fees incurred defending against
the jurisdictional allegations. While Appellees provide authority for the position that
the district court could have awarded sanctions jointly and severally against Abbas
and his counsel, they offer no authority supporting the position that the district court
abused its discretion by awarding sanctions only against the attorney who signed and
submitted the complaint containing the false allegations to the court with knowledge
those allegations were unsupported. See Fed. R. Civ. P. 11(c)(1) (“[T]he court may
impose an appropriate sanction on any attorney, law firm, or party that violated the
rule or is responsible for the violation.”); Holgate, 425 F.3d at 675 (“Abuse of
discretion may be found if the district court based its decision on an erroneous view
5
of the law or on a clearly erroneous assessment of the evidence.”). Similarly,
Appellees provide authority for the contention that the district court could have
awarded all of the requested sanctions based on findings that the remainder of
Abbas’ claims were frivolous or brought in bad faith, but fail to provide authority
indicating the district court applied the wrong legal standard or otherwise abused its
discretion in limiting the fee award to the complaint’s demonstrably false
jurisdictional allegations. See Holgate, 425 F.3d at 675. Accordingly, the district
court applied the correct legal standard and did not abuse its discretion by granting
Jamal’s and Barajoun’s Rule 11 motion for sanctions and limiting the sanctions
award to the fees incurred defending against the demonstrably false jurisdictional
allegations.
5. Abbas also claims that the district court erred by granting the motion for
judgment on the pleadings as to Vertical, Resnick, and Lakeshore based on the three-
year statute of limitations. A dismissal on the pleadings under Federal Rule of Civil
Procedure 12(c) is reviewed de novo. See Daewoo Elecs. Am. Inc. v. Opta Corp.,
875 F.3d 1241, 1246 (9th Cir. 2017). As the district court correctly found, Abbas’
claims turn on whether Abbas can establish ownership of Bilal, rather than on
subsequent infringement of the film. Based on Abbas’ allegations, the district court
correctly reasoned that, under Seven Arts Filmed Entertainment Ltd. v. Content
Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013), the gravamen of Abbas’
6
claims is ownership because Appellees admitted that they distributed Bilal, but
defended their purportedly infringing acts by contending that Abbas is not the owner
of the film or any materials incorporated into it. See id. (“[T]his dispute is about
ownership—Paramount concedes it is exploiting the pictures, but denies that Seven
Arts owns the copyrights.”).
As the district court recognized, ‘“claims of co-ownership’ . . . accrue only
once, ‘when plain and express repudiation of co-ownership is communicated to the
claimant.’” Id. (citations omitted). Under these circumstances, a plaintiff must bring
suit within three years of receiving notice of the repudiation of his or her ownership
rights. See id. at 1258; Aalmuhammed v. Lee, 202 F.3d 1227, 1230–31 (9th Cir.
2000). While Abbas does not address the three-year statute of limitations in his
briefing, thus waiving the issue, the district court correctly found that Barajoun
expressly repudiated Abbas’ ownership claim by June 9, 2015, when Barajoun filed
the copyright-infringement lawsuit against Abbas in Saudi Arabia. That lawsuit, in
which Jamal and Barajoun asserted ownership of Bilal, notified Abbas that Jamal
and Barajoun claimed ownership of the materials that were allegedly incorporated
into Bilal. Accordingly, Abbas’ complaint, which was filed on August 23, 2018, is
barred by the three-year statute of limitations. See Seven Arts, 733 F.3d at 1255; Zuill
v. Shanahan, 80 F.3d 1366, 1370–71 (9th Cir. 1996).
7
6. Abbas also challenges the district court’s denial of reconsideration of its
statute of limitations ruling, arguing that the ruling incorrectly assumed that Abbas
is asserting ownership over Bilal. But as the district court correctly determined,
Abbas could have, but failed, to make that argument when opposing the motion for
judgment on the pleadings, so that argument was an improper basis for
reconsideration.
Even if it were a proper basis for reconsideration, as discussed above, the
district court correctly rejected that argument because the “complaint explicitly
alleges that all of Abbas’ claimed original works were incorporated into the final
Bilal film” and that, as a result, “the Saudi dispute, in which [Jamal and Barajoun]
asserted ownership of Bilal, necessarily notified Abbas that [they] claimed
ownership of the same material of which he asserts ownership.” Abbas fails to show
this conclusion was an abuse of discretion.
7. The district court also did not abuse its discretion by denying leave to amend.
See Curry v. Yelp Inc., 875 F.3d 1219, 1224 (9th Cir. 2017). Abbas never provided
any additional facts that he could allege to establish personal jurisdiction over Jamal
or Barajoun, or that would remedy his time-barred ownership claims. Abbas also
failed to provide any such facts in his appellate briefing. Accordingly, amendment
would be futile and dismissal without leave to amend was not an abuse of discretion.
See Leadsinger, Inc. v. BMG Music Publ’g, 512 F.3d 522, 532 (9th Cir. 2008)
8
(recognizing that dismissal with prejudice is proper when amendment would be
futile); Salameh v. Tarsadia Hotel, 726 F.3d 1124, 1133 (9th Cir. 2013) (finding no
abuse of discretion for denial of leave to amend where plaintiff failed to identify
facts that could cure the deficiencies in the complaint).
8. Finally, Appellees argue that the district court abused its discretion by denying
the motion for attorney’s fees and costs under 17 U.S.C. § 505. Under § 505, a
district court may award reasonable attorney’s fees and costs to the prevailing party
in a copyright suit. See 17 U.S.C. § 505. The district court denied the § 505 motion
based on its finding that an award of attorney’s fees would not further the purposes
of the Copyright Act. However, “[u]nder the Copyright Act, the question is whether
a successful defense of the action further[s] the purposes of the Act, not whether
a fee award would do so.” Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792,
816 (9th Cir. 2003) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 527 (1994)).
Accordingly, the district court abused its discretion by applying the incorrect legal
standard, so we reverse and remand for the district court to consider the § 505 motion
for attorney’s fees under the proper legal standard.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.2
2
The motion to take judicial notice (Dkt. 58) is GRANTED. Each party shall bear
its own costs on appeal.
9