Kelly Barnett v. Ubimodo, Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 28, 2021
• Docket: 20-35299
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION OCT 28 2021 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

KELLY BARNETT, No. 20-35299

Plaintiff-Appellant, D.C. No. 6:18-cv-00418-MC

v. MEMORANDUM* UBIMODO, INC.; UBIMODO INSURANCE LLC; SOTERIA INSTITUTE; SCOTT WARNER; UBIMODO LTD CANADA; STARR INDEMNITY & LIABILITY COMPANY; ARMOUR RISK MANAGEMENT, AKA Bedivere Insurance Company, AKA Bevidere, AKA Trebuchet Holdings LLC, jointly and severable,

Defendants-Appellees.

Appeal from the United States District Court for the District of Oregon Michael J. McShane, District Judge, Presiding

Submitted October 26, 2021 **

* 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). Before: FERNANDEZ, SILVERMAN, and NGUYEN, Circuit Judges

Kelly Barnett appeals the district court orders terminating her copyright

infringement action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review de novo the orders dismissing for failure to state a claim and granting

summary judgment. UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718

F.3d 1006, 1014 (9th Cir. 2013). We review the dismissal pursuant to Federal

Rule of Civil Procedure 41(b) for an abuse of discretion. Ferdik v. Bonzelet, 963

F.2d 1258, 1260 (9th Cir. 1992). We affirm.

The district court acted well within its discretion by dismissing Soteria

Institute with prejudice. Even though the district court identified the proper agent

of service and gave Barnett multiple opportunities and ample time to serve the

defendant after the time for service had expired, Barnett failed to comply with

court orders to serve the defendant. See Fed. R. Civ. P. 41(b) (allowing

involuntary dismissal for failure to prosecute or failure to comply with the civil

procedure rules or court orders).

The district court properly dismissed the copyright claim against Starr and

granted summary judgment in favor of the other defendants. As a matter of law,

Barnett’s copyright did not protect the ideas or process reflected in her flowchart,

2 only her flowchart. 17 U.S.C. § 102(b); see Bikram’s Yoga Coll. of India, L.P. v.

Evolation Yoga, LLC, 803 F.3d 1032, 1034 (9th Cir. 2015) (holding that a

sequence of yoga poses and breathing exercises were an idea, system, or process

that could not be copyrighted); UMG Recordings, Inc., 718 F.3d at 1031 (requiring

proof of direct infringement to establish contributory infringement, vicarious

infringement, and inducement of infringement).

To the extent that Barnett argues the district court should have allowed

discovery before granting summary judgment, she has not identified which

discovery she sought and how it would have prevented summary judgment. See

Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (requiring that the

party seeking to delay summary judgment state the “specific” existing evidence

that the party “hopes to discover” and how that evidence is “essential to oppose

summary judgment”).

This case remains administratively closed as to appellee Bedivere. See

Docket Entry No. 52. We therefore do not reach Barnett’s contentions regarding

dismissal of her claims against Bedivere.

We decline to consider arguments raised for the first time on appeal. Dream

Palace v. Cnty of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004).

3 Appellee Warner’s request for sanctions is denied. If Barnett continues to

file lawsuits against Warner, he can request that the district court sanction Barnett.

Barnett’s Motion for Rehabilitation of Character (Dkt. Entry No. 25),

Motion to Expand the Record (Dkt. Entry No. 41), and Motion for an Order to

Correct Docket (Dkt. Entry No. 46) are DENIED.

AFFIRMED.