Ibraheem Abbas v. Vertical Entertainment, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 3, 2021
• Docket: 19-56248
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 3 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT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,

Defendants-Appellants,

CRYSTALSKY MULTIMEDIA MARKETING, INC.; et al.,

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.