David Stebbins v. Karl Polano

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 28, 2024
• Docket: 23-15531
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 28 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DAVID ANTHONY STEBBINS, DBA No. 23-15531 Acerthorn, D.C. No. 4:21-cv-04184-JSW Plaintiff-Appellant,

v. MEMORANDUM*

KARL POLANO, DBA Sofiannp; et al.,

Defendants-Appellees,

and

FACEBOOK, INC.,

Defendant.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Submitted August 20, 2024**

Before: S.R. THOMAS, RAWLINSON, and COLLINS, Circuit Judges.

David Anthony Stebbins appeals pro se from the district court’s judgment

* 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). dismissing his action alleging copyright infringement and related claims. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison

v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012). We may affirm on any ground

supported by the record. Jones v. Allison, 9 F.4th 1136, 1139 (9th Cir. 2021). We

affirm.

The district court properly dismissed Stebbins’s copyright infringement

claim because Stebbins failed to allege facts sufficient to show that he was the

owner of a valid copyright in the “accidental livestream.” See Skidmore as Tr. for

Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir. 2020) (en

banc) (setting forth elements of a claim for copyright infringement); Ets-Hokin v.

Skyy Spirits, Inc., 225 F.3d 1068, 1075-76 (9th Cir. 2000) (explaining that

defendants may overcome the presumption of validity raised by a certificate of

registration by demonstrating why a work is not copyrightable); see also Feist

Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 345-46 (1991) (explaining that

to qualify for copyright protection, a work must possess “some minimal degree of

creativity;” copyright is “limited to original intellectual conceptions of the author”

(citation and internal quotation marks omitted)).

The district court properly dismissed Stebbins’s intentional infliction of

emotional distress claim because Stebbins failed to allege facts sufficient to show

2 23-15531 that Stebbins suffered severe or extreme emotional distress. See Hughes v. Pair,

209 P.3d 963, 976 (Cal. 2009) (setting forth elements of an intentional infliction of

emotional distress claim).

Dismissal of Stebbins’s claim under 17 U.S.C. § 512(f) was proper because

Stebbins failed to allege facts sufficient to show that defendants had actual

knowledge of any misrepresentation. See Rossi v. Motion Picture Ass’n of Am.

Inc., 391 F.3d 1000, 1004-05 (9th Cir. 2004) (explaining that liability under 17

U.S.C. § 512(f) requires “a demonstration of some actual knowledge of

misrepresentation”).

We reject as unsupported by the record Stebbins’s contention that the district

court failed to construe his pleadings liberally.

The district court did not abuse its discretion by denying Stebbins’s motions

for default judgment against the individual defendants. See Eitel v. McCool, 782

F.2d 1470, 1471-72 (9th Cir. 1986) (setting forth standard of review and factors for

determining whether to enter default judgment); Aldabe v. Aldabe, 616 F.2d 1089,

1092-93 (9th Cir. 1980) (affirming denial of default judgment based on “the lack

of merit in” plaintiff’s underlying claims).

The district court did not abuse its discretion by granting Alphabet, Inc. and

YouTube, LLC’s motion to intervene because movants demonstrated that there

was a common question of law and fact between their defense and this action, and

3 23-15531 the district court determined that the intervention would not cause undue delay or

prejudice. See Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 955 (9th Cir.

2009) (setting forth standard of review, requirements for a party to intervene

permissibly under Fed. R. Civ. P. 24(b), and factors for the court to consider in the

exercise of its discretion). We reject as without merit Stebbins’s contention that

the district court abused its discretion by considering Stebbins’s litigation conduct

in ruling on the motion to intervene.

The district court did not abuse its discretion by denying leave to amend

because further amendment would be futile. See Cervantes v. Countrywide Home

Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review

and explaining that dismissal without leave to amend is proper when amendment

would be futile).

The district court did not abuse its discretion by denying Stebbins’s motion

for leave to file a motion for reconsideration or to vacate the judgment because

Stebbins failed to establish grounds for relief. See N.D. Cal. L. R. 7-9 (setting

forth procedure and grounds for reconsideration); Hinton v. Pac. Enters., 5 F.3d

391, 395 (9th Cir. 1993) (setting forth standard of review for application of a local

rule); Sch. Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255,

1262-63 (9th Cir. 1993) (setting forth standard of review and grounds for relief

under Fed. R. Civ. P. 60(b)(6)). We reject as unsupported by the record Stebbins’s

4 23-15531 contention that the district court improperly construed his motion for leave to file a

motion for reconsideration as a motion for reconsideration.

The district court did not abuse its discretion by denying Stebbins’s motion

to recuse District Judge White because Stebbins failed to establish any basis for

recusal. See United States v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997)

(setting forth standard of review and discussing standard for recusal under 28

U.S.C. §§ 144 and 455). We reject as unsupported by the record Stebbins’s

contention that the district judge was biased against him.

The district court did not abuse its discretion by denying Stebbins’s motion

for sanctions because Stebbins failed to establish grounds for sanctions. See

Havensight Cap. LLC v. Nike, Inc., 891 F.3d 1167, 1171, 1174 (9th Cir. 2018)

(setting forth standard of review and grounds for sanctions under Fed. R. Civ. P.

11).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Stebbins’s motion to file a supplemental brief (Docket Entry No. 31) is

denied.

AFFIRMED.

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