Case Information
*1 NOT FOR CITATION
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN JOSE DIVISION
BORIS KANTEMIROV, No. C05-01362 HRL Plaintiff, INTERIM ORDER (1) GRANTING DEFENDANT’S MOTION TO DISMISS v. PLAINTIFF’S EIGHTH CLAIM FOR RELIEF; (2) SETTING SCHEDULE FOR BARRY GOLDINE, d/b/a/ BIGWHEELS.NET, and DOES 1-25, ADDITIONAL BRIEFING; AND (3) CONTINUING CASE MANAGEMENT CONFERENCE Defendants. / [Docket No. 35] BARRY GOLDINE, Plaintiff, v.
BORIS KANTEMIROV, SKIP LIGHTFOOT
and DOES 1-50,
Defendants.
/
Pursuant to Fed.R.Civ.P. 12(b)(6), defendant and counterclaimant Barry Goldine (“defendant”) moves to dismiss the fifth through eighth claims for relief asserted in plaintiff Boris Kantemirov’s Amended Complaint. Plaintiff failed to file an opposition brief; his counsel appeared at the hearing to state, for the first time, plaintiff’s opposition to the motion. Having considered the
Case 5:05-cv-01362-HRL Document 42 Filed 10/04/05 Page 2 of 4 *2 papers filed, as well as the arguments presented at the October 4, 2005 hearing, the court issues the following interim order. 1
1. Defendant’s motion to dismiss plaintiff’s eighth claim for relief for copyright infringement is GRANTED. The Amended Complaint alleges only that Kantemirov “executed a Copyright Application” ( see Amended Complaint, ¶ 29), and no action apparently has been taken by
the Copyright Office with respect to that application. Plaintiff concedes that under 17 U.S.C. § 411(a), 2 the court does not have jurisdiction over this claim at this time. Accordingly, plaintiff’s eighth claim for relief is DISMISSED WITHOUT PREJUDICE.
2. No later than October 18, 2005 , the parties shall file briefs addressing the effect – if any – the dismissal of plaintiff’s federal copyright claim for lack of jurisdiction has upon this court’s ability to adjudicate the parties’ remaining claims in this action, and specifically, whether this action must now be remanded to the state court. Unless otherwise ordered by the court, the matter will be deemed submitted upon receipt of the parties’ briefs without further oral argument. With respect to plaintiff’s state law claims for conversion, unjust enrichment and misappropriation of ideas, plaintiff argues that these claims are not preempted by the Copyright Act because he is now claiming at least some rights which are different from those protected under that Act. This court will defer ruling on defendant’s motion to dismiss these state law claims pending resolution of the jurisdictional issue noted above. Pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73, all parties have expressly 1 20 consented that all proceedings in this matter may be heard and finally adjudicated by the
undersigned. 21 The Copyright Act, provides, in relevant part, that: 2
22
[N]o action for infringement of the copyright in any United States work shall be instituted until preregistration or registration of the copyright claim has been made in accordance with this title. In any case, however, where the deposit, application, and fee required for registration have been delivered to the Copyright Office in proper form and registration has been refused, the applicant is entitled to institute an action for infringement if 23
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26 notice thereof, with a copy of the complaint, is served on the Register of Copyrights. . . .
27
17 U.S.C. § 411(a).
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*3 The case management conference currently set for October 25, 2005, 1:30 p.m. is continued to November 29, 2005, 1:30 p.m. in Courtroom 2 . The parties’ Joint Case
Management Statement shall be filed no later than November 22, 2005 .
IT IS SO ORDERED.
Dated:
HOWARD R. LLOYD UNITED STATES MAGISTRATE JUDGE
Case 5:05-cv-01362-HRL Document 42 Filed 10/04/05 Page 4 of 4 *4 5:05-cv-1362 Notice will be electronically mailed to:
Samira Ansari sansari@samiralaw.com,
Jingming (James) Cai jcai@flglawyer.com
Timothy E. Herr candteh@mylawfirm.com
Counsel are responsible for distributing copies of this document to co-counsel who have not registered for e-filing under the court’s CM/ECF program.