Axanar: Wheels in Motion

Axanar: Wheels in Motion

The G & T Show Axanar: Wheels in Motion

The G & T Show – it’s all about story, characters, and Star Trek

Wheels in Motion! It’s baa-ack. Just look at all the wheels in motion! On February 22, 2016, Axanar was required to answer the lawsuit brought against it by CBS/Paramount. Instead of answering, Axanar moved to dismiss.

I’ll do my best to break it down as I see it. This is going to be more than one blog post as there are a lot of documents and I want you to be able to see them all and load them within a reasonable amount of time. For all of the images, you can ask me for them. Want to right-click and copy the documents? They’re public record. Help yourself.

Three documents were filed by the defense. Let’s look at the first two in turn. Then I’ll cover the plaintiff’s two initial response documents. But the motion itself will be in another blog post, due to the sheer number of images. I apologize in advance for any confusion this may cause.

This is going to be a rather technical blog post. Feel free to ask questions in the comments and I will do my best to answer them but don’t be surprised if it takes a while to research some of this!

TL; DR: Even if the motion is granted, the plaintiffs can still refile and amend their complaint.

Certification and Notice of Interested Parties

This is the easy one. According to the Central California District Court’s Local Rules of Civil Procedure, pages 45 – 46:

L.R. 7.1-1 Certification as to Interested Parties. To enable the Court to evaluate possible disqualification or recusal, counsel for all non-governmental parties shall file with their first appearance an original and two copies of a Notice of Interested Parties which shall list all persons, associations of persons, firms, partnerships and corporations (including parent corporations clearly identified as such) which may have a pecuniary interest in the outcome of the case, including any insurance carrier which may be liable in whole or in part (directly or indirectly) for a judgment that may be entered in the action or for the cost of defense. Counsel shall be under a continuing obligation to file an amended certification if any material change occurs in the status of interested parties as, for example, through merger or acquisition, or change in carrier which may be liable for any part of a judgment.

The Notice shall include the following certification:

“The undersigned, counsel of record for __________, certifies that the following listed party (or parties) may have a pecuniary interest in the outcome of this case. These representations are made to enable the Court to evaluate possible disqualification or recusal.

(Here list the names of all such parties and identify their connection and interest.)

Signature, Attorney of Record for:”

Essentially, the idea behind this is to inform the judge and attorneys for both sides (and for any other parties impleaded at a later date, if any) who is currently involved in the case. This necessary document is designed to let any of those aforementioned parties know if they possibly know someone personally which could create a conflict of interest. Hypothetically speaking, if the lead counsel for CBS/Paramount’s representative firm, Jonathan Zavin of Loeb & Loeb, realized he plays squash with Alec Peters on alternate Thursdays, that could potentially create a conflict. Or if the judge did, then the judge, Gary Klausner, would have to recuse (remove) himself from the case and a different judge would have to be brought in to handle matters. The judge and law firms have probably already done at least minimal due diligence in this area, but the form is required all the same.

That’s the easiest of the three documents.

Proposed Order Granting Motion to Dismiss

It is well within the defendants’ rights to move to dismiss rather than answer the complaint. Their chances of succeeding are far from guaranteed, however. As a part of making a motion, the movant drafts an order for the judge to sign. This is that document; we’ll get to the motion in a later blog post, as it is more lengthy.

Page 1

Page 1 is just a standard first page of a court document, listing the parties, the assigned judge, and the case number.

Axanar: Wheels in Motion

Motion to Dismiss, February 22, 2016 Page 1

Not much to talk about, but absolutely necessary for any documentation for the court.

Page 2

Page 2 begins with a request for relief, either to dismiss the case outright (plaintiffs would be able to refile; there is no ‘double jeopardy’ like in criminal matters) or strike portions of the complaint. The first statement is that the plaintiffs have not specified the copyrights being infringed, thereby failing to put the defense on proper notice. The second statement is that the plaintiffs did not clearly or consistently state who owns which copyright. The third statement (which continues on Page 3) is that the plaintiffs improperly based their allegations on ‘information and belief’ which the defense alleges is insufficient for a complaint to be brought.

For the first statement, the defense relies on Chestang v. Yahoo, No. 2:11-cv-00989-MCE-KJN-PS, 2012 WL 3915957, at *3 (E.D. Cal. Sept. 7, 2012), a case which was brought on unclear pleadings. In that matter, the court allowed for the filing of a second, amended pleading. They also rely on Universal Surface Tech., Inc. v. Sea-A Trading Am. Corp., No. CV 10-6972 CAS (PJWx), 2011 WL 281020, at *4-6 (C.D. Cal. Jan. 26, 2011), a case wherein a preliminary injunction was denied based (apparently) upon an unclear pleading (Note: this is not an easy case to find online). They also rely on Four Navy Seals v. Associated Press, 413 F. Supp. 2d 1136, 1148 (S.D. Cal. 2005), a case dismissed under an anti-SLAPP statute, California Code of Civil Procedure § 425.16.

Only Chestang and Universal seem to directly apply, and the remedy in Chestang was only putting off a complaint, not making it go away. In Universal, it’s just a preliminary injunction that’s denied; the case is neither dismissed nor lost. These are generally procedural issues, akin to technicalities. They might force a rewording of the complaint, or even a brief dismissal, but the matter can and would be brought again. A ‘win’ in this area for the defense is hardly a win at all.

For the second statement, the defense cites Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545 (2007). Bell is a restraint of trade case wherein the breakup of regional telephone carriers created some confusion as to which division handled what. It’s a bit analogous to the CBS and Paramount sharing of various aspects of the Star Trek IP, but I see it as a stretch. My understanding is that CBS owns television rights and Paramount owns the movie rights. Even if I, personally, am mistaken, there must be a sales contract and innumerable other forms of documentation spelling all of this out (at minimum, Sarbanes-Oxley would probably require such). To my mind, this appears to be the weakest of the first three defense statements. After all, you can find the copyright holders yourself by checking the Library of Congress’s copyright listings (use the ‘Other Search Options’ choice as it’s faster). Just search under Star Trek.

In the third statement, defense cites Simonyan v. Ally Fin. Inc. (Another hard case to find online), No. CV 12-8495-JFW (FMOx), 2012 WL 45453, at *2 (C.D. Cal. Jan. 3, 2013), which seems to be a dismissal for not filing an amended complaint in a timely fashion. They also rely on Solis v. City of Fresno, No. 1:11-CV-00053 AWI GSA, 2012 WL 868681, at *8 (E.D. Cal. Mar. 13, 2012). This one is a failure to state a claim upon which relief can be granted. They also cite Vivendi SA v. T-Mobile USA Inc., 586 F.3d 689, 694 (9th Cir. 2009), which seems to be about a forum non conveniens motion. Their last cited case for this statement is Richtek Tech. Corp. v. Semiconductor Corp., No C 09-05659 WHA, 2011 WL 166198, at *3 (N.D. Cal. Jan. 18, 2011). This one is another forum selection case.

I will admit my readings of these cases are not absolutely thorough to the last syllable (after all, I’m not doing this for a living anymore). But again, these are procedural and technical issues. If Klausner rules the allegations are material enough, the matter may very well be dismissed but the complainants would be able to just file amended pleadings.

These are technicalities and a call for the documentation showing which parts of Star Trek are owned and controlled by Paramount, and which are owned and controlled by CBS, so far as I can tell.

Page 3

Page 3 continues the third statement and then adds a fourth statement which says the claim is ‘unripe’ (this is a legal term of art meaning it has not become a viable issue yet) because the film has not yet been made. They cite Veoh Networks, Inc. v. UMG Recordings, Inc., 522 F. Supp. 2d 1265, 1269 (S.D. Cal. 2007). In that case, the copyright holder’s claim was dismissed due to vagueness in the pleadings, but it was without prejudice which means they could just refile. They also cite Sierra Applied Scis., Inc. v. Advanced Energy Indus., Inc., 363 F.3d 1361, 1379 (Fed. Cir. 2004), which is a patent case where the claim was dismissed due to the fluidity of the design. I would argue that a concrete item (in this case, it was a form of power supply) is more likely to be considered ‘complete’ when fully designed, whereas works of fiction are often edited and otherwise amended even after they are considered completed, and without said editing converting them back to incomplete status.  The defense also relies on Walker v. Time Life Films, Inc., 615 F. Supp. 430, 435 (S.D. N.Y. 1985) wherein a New York City police officer sued over the use of the term ‘Fort Apache’ in the film Fort Apache, the Bronx, claiming infringement. However, in that instance, the main part of the claim seems to hinge on the title of the plaintiff’s book and some similarities but not outright copying. Further, the defense cited See v. Durang, 711 F.2d 141, 142 (9th Cir. 1983). See is an interesting case because the Ninth District wrote in its opinion,Copying deleted or so disguised as to be unrecognizable is not copying.” Emphasis mine. The defendants also relied on Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir. 2006), a case about the show, ‘Six Feet Under’, where it was noted that substantial similarity could not be seen.

Finally, as a fifth statement, the defense says an injunction preventing the making of the film would be a prior restraint on free speech. The defense cites New York Times Co. v. United States, 403 U.S. 713, 714 (1971), which is a well-known case in legal circles, but it’s about the potential publication of classified materials by the press (it’s the Pentagon Papers case). I confess I am having trouble seeing where it relates to this matter, as the New York Times case was a matter of the general public understanding what their government was doing, as opposed to the creation of a work of fictional media. The defendants also cite Globe Int’l, Inc. v. Nat’l Enquirer, Inc., No. 98-10613 CAS (MANX), 199 WL 727232, at *5 (C.D. Cal. Jan. 25, 1999). I cannot find that slip opinion online but did find this article which notes the Central District of California (same jurisdiction that the Axanar case was brought in) found a preliminary injunction preventing publication in an infringement matter to be a prior restraint on free speech. Without the details, I can’t really comment on the Globe case except to say it was decided by the Central District before Judge Klausner was appointed to his current position on the bench. With a different makeup to the court, the outcome could be far different. Precedent is of interest but not necessarily binding with a slip opinion which does not seem to have made it into the Federal Supplement (if I am wrong about this, I’d love to see the actual opinion – Google’s failing me!).

Page 3 then begins the listing of items the defense wants stricken from the complaint, and refers to Axanar as a ‘potential fan film’. This list continues to Page 4 and starts with:

The allegation “and are in the process of producing a film called Axanar (the
‘Axanar Motion Picture’)” from paragraph 2;

Page 4

Page 4 is the last part of the proposed order, plus a place for the judge to sign and date the motion if it is granted. Judges can and sometimes do grant motions without an opinion, just a signature. That’s not likely herein, e. g. even if the motion is granted in full, it seems likely that Klausner would write some sort of accompanying opinion.

This page also lists the remaining items which Axanar wants stricken from the complaint, to wit:

  • The allegation “and continues to write the script for and produce the Axanar
    Motion Picture” from paragraph 9;
  • The allegations contained in paragraphs 30 through 39;
  • The allegations contained in paragraphs 66 through 70; and
  • The allegations contained in paragraph 2 of the Prayer for Relief.

The Plaintiffs’ Stipulation to Continue

Before getting to the motion itself, let’s first look at these documents from the other side.

Page 1

As we have seen (and we will most likely see with all pleadings in this matter), this first page is a lot of identifying information for the convenience of the court, designed to ensure the document is attached to the correct case. Klausner is, undoubtedly, working on several matters at the same time. This is how the paperwork is all kept straight.

Axanar: Wheels in Motion

Plaintiffs’ Stipulation to Continue, Page 1

Page 2

Here we get to the actual stipulation. The plaintiffs do not cite case law because they don’t need to. This document is to formalize what may have been a rather informal phone call or email between the two sides’ lawyers.

Page 3

This is just the signature page indicating the parties’ representatives have agreed to reschedule. Usually, a request to reschedule, if for a reasonable amount of time (the shorter, generally, the better), and if there haven’t been too many such requests, those requests are agreed to and granted pretty routinely. It is in no one’s best interests for a case to proceed if the attorneys are not ready. In the event that a major and continuing delay is anticipated (e. g. an attorney’s child is diagnosed with cancer, heaven forbid), then generally the court will insist on a new lawyer being assigned and then time will be granted in order to get that person up to speed. Not the situation here; just understand that agreeing to a rescheduling isn’t really conceding much of anything. Courts generally do not take kindly to counsel posturing too much in this area. Everybody, at one point or another, needs extra time and this is considered to be a professional courtesy.

Plaintiffs’ Proposed Order to Continue

Page 1

As we saw before with the defense’s proposed order, this page is really just a cover page with necessary specific information enabling the clerk to keep this record with the correct case.

Axanar: Wheels in Motion

Plaintiffs’ Proposed Order to Continue, Page 1

Page 2

As with the defense’s proposed order, this page contains a spot for the judge’s signature, and there are also spaces, probably to be filled in by the clerk of the court, rescheduling the germane dates applying to this motion and the plaintiffs’ anticipated responses.

Coming up! The Motion to Dismiss itself, in all its glorious legalese as the wheels keep on turning. Thanks for reading!

EDIT: Stipulation to continue was denied and the wheels in motion keep on spinning. See:

Axanar: Wheels in Motion

Stip to Continue Denied (page 1)

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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too.

She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show.

We understand that she can be bribed with pie.
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Janet Gershen-Siegel

Jespah (Janet) is our Social Media Director. She has her Master's in Communications (Social Media) from Quinnipiac University and is one of the Klingons of Long Island. She's a retired lawyer, too. She's also a published author (Untrustworthy, published by Riverdale Avenue Books; QSF Discovery 2 Anthology, published by Mischief Corner Books; and The Longest Night Watch Anthology 1 & 2, published by Writers Colony Press), and a prolific fan fiction writer. You can find her adding her fanfiction to our forums, or live tweeting our show. We understand that she can be bribed with pie.

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