Michael Grecco Prods., Inc. v. Ziff Davis, LLC

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 25, 2020
• Docket: 19-56465
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS NOV 25 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

MICHAEL GRECCO PRODUCTIONS, No. 19-56465 INC., DBA Michael Grecco Photography, Inc., D.C. No. 2:19-cv-04776-DSF-PJW Plaintiff-Appellant,

v. MEMORANDUM*

ZIFF DAVIS, LLC,

Defendant-Appellee.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Argued and Submitted November 16, 2020 Pasadena, California

Before: FERNANDEZ, PAEZ, and OWENS, Circuit Judges.

Plaintiff-Appellant Michael Grecco Productions, Inc. (MGP) appeals from

the district court’s dismissal on statute of limitations grounds of its copyright

claims against Defendant-Appellee Ziff Davis, LLC (Ziff). As the parties are

familiar with the facts, we do not recount them here. We review de novo the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. district court’s grant of a motion to dismiss on statute of limitations grounds. See

Hoang v. Bank of Am., N.A., 910 F.3d 1096, 1100 (9th Cir. 2018). We have

jurisdiction under 28 U.S.C. § 1291, and we reverse and remand for further

proceedings.

We apply the discovery rule when analyzing statute of limitations questions

in copyright cases. “[A] copyright infringement claim accrues – and the statute of

limitations begins to run – when a party discovers, or reasonably should have

discovered, the alleged infringement.” Oracle Am., Inc. v. Hewlett Packard Enter.

Co., 971 F.3d 1042, 1047 (9th Cir. 2020) (citation omitted).

The statute of limitations discovery rule analysis is a factual one. Polar

Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 707 (9th Cir. 2004). Here, it is not

clear from the face of the First Amended Complaint that MGP’s copyright

infringement claims were untimely. For example, whether the Google reverse

image search technology would have captured the images is a question of fact,

inappropriate for dismissal at the motion to dismiss stage. The facts alleged in

MGP’s First Amended Complaint are sufficient to survive a motion to dismiss.

See Fed. R. Civ. P. 8.

On remand, the district court may order limited discovery that focuses on the

statute of limitations question.

REVERSED AND REMANDED.