Case 3:09-cv-05053-RJB Document 17 Filed 03/25/09 Page 1 of 5
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT TACOMA
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`SAFEAIR, INC., a Washington corporation
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`Plaintiff,
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`Case No. 09-5053RJB
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`v.
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`AIRTRAN AIRWAYS, INC., a Florida
`corporation,
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`Defendant.
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`ORDER GRANTING IN PART
`DENYING IN PART
`DEFENDANT’S MOTION TO
`DISMISS
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`This matter comes before the Court on defendant’s Motion to Dismiss (Dkt. 13). The
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`Court has considered the pleadings filed in support of and in opposition to the motion, and the
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`remainder of the file herein.
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`I. FACTUAL AND PROCEDURAL BACKGROUND
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`On January 30, 2009, plaintiff Safeair, Inc., filed a civil case alleging infringement of
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`Safeair’s copyright by AirTran. Dkt. 1. The plaintiff’s Complaint was amended on February 23,
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`2009. Dkt. 12 Defendant now moves to dismiss plaintiff’s Complaint. Dkt. 13.
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`Safeair is a Washington state corporation with its principal place of business in Olympia,
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`Washington. Dkt 12 ¶ 1.1. Safeair develops, authors, and markets safety cards illustrating proper
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`safety procedures for various aircrafts. Dkt. 12 ¶ 3.1. AirTran Airways (“AirTran”) is a Florida
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`corporation with its principal place of business in Orlando, Florida. Dkt. 12 ¶ 1.2.
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`Between 1996 and 2008, Safeair created two passenger safety cards for use on AirTran’s
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`ORDER - 1
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`Case 3:09-cv-05053-RJB Document 17 Filed 03/25/09 Page 2 of 5
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`Boeing 717-200 and Boeing 737-700/800 aircraft (hereafter “AirTran Safety Cards”). Dkt. 12 ¶
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`3.8. In February 2008, AirTran terminated its business relationship with Safeair. Dkt. 12 ¶¶ 3.8,
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`3.9. Shortly thereafter, Safeair alleges that AirTran began using safety cards that contained
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`Safeair’s protected artwork. Dkt 12. ¶¶ 3.8, 3.9. On October 30, 2008, counsel for Safeair
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`informed AirTran that their safety information cards infringed on Safeair’s copyrights. Dkt. 12 ¶
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`3.5.
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`The defendant now moves to dismiss the plaintiff’s claims because the plaintiff lacks
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`subject matter jurisdiction and that Plaintiff fails to state a claim upon which relief can be granted.
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`Dkt. 13 at 1.
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`II. DISCUSSION
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`A complaint must be dismissed under Fed. R. Civ. P. 12(b)(1) if, considering the factual
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`allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the
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`Constitution, laws, or treaties of the United States, or does not fall within one of the other
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`enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or
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`controversy within the meaning of the Constitution; or (3) is not one described by any
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`jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v.
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`Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal
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`question jurisdiction) and 1346 (United States as defendant). When considering a motion to
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`dismiss pursuant to Rule 12(b)(1), the court is not restricted to the face of the pleadings, but may
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`review any evidence to resolve factual disputes concerning the existence of jurisdiction.
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`McCarthy v. United States, 850 F.2d 1375, 1379 (9th Cir. 1983). A federal court is presumed to
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`lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. Gaurdian Life
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`Ins. Co. of America, 511 U.S. 375 (1994); Stock West, Inc. v. Confederated Tribes, 873 f.2d
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`1221, 1225 (9th Cir. 1989). Therefore, plaintiff bears the burden of proving the existence of
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`subject matter jurisdiction. Stock West, 873 F.2d at 1225; Thornhill Publishing Co., Inc. v. Gen’l
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`Tel & Elect. Corp., 594 F.2d 730, 733 (9th Cir. 1979).
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` Fed. R. Civ. P. 12(b) motions to dismiss may be based on either the lack of a cognizable
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`ORDER - 2
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`Case 3:09-cv-05053-RJB Document 17 Filed 03/25/09 Page 3 of 5
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`legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v.
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`Pacifica Police Department, 901 F.2d 696, 699 (9th Cir. 1990). Material allegations are taken as
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`admitted and the complaint is construed in the plaintiff’s favor. Keniston v. Roberts, 717 F.2d
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`1295 (9th Cir. 1983). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not
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`need detailed factual allegations, a plaintiff’s obligation to provide the grounds of his entitlement
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`to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a
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`cause of action will not do.” Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1964-65
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`(2007)(internal citations omitted). “Factual allegations must be enough to raise a right of relief
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`above the speculative level, on the assumption that all the allegations in the complaint are true
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`(even if doubtful in fact).” Id. at 1965. Plaintiffs must allege “enough facts to state a claim to
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`relief that is plausible on its face.” Id. at 1974.
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`A. Subject Matter Jurisdiction
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`The defendant asserts that the plaintiff’s claim for copyright infringement, at least to the
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`extent the suit is regarding infringement of the AirTran Safety Cards, should be dismissed for lack
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`of subject matter jurisdiction. The defendant argues the jurisdictional prerequisite to bring a suit
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`for copyright infringement is registration of the copyright claim. Defendant states that Safeair
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`does not own a registered copyright pertaining to the AirTran Safety Cards, and therefore, cannot
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`bring a suit regarding that material. Moreover, the defendant argues that even if the original work
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`was registered, the derivative work, the AirTran Safety Cards, must also be registered to create
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`jurisdiction. The plaintiff responds that their copyright claims arise from the copyrighted works.
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`The Copyright Act states that “no civil action for infringement of the copyright in any
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`United States work shall be instituted until preregistration or registration of the copyright claim
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`has been made in accordance with this title.” 17 U.S.C. § 411(a). “A district court does not have
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`subject matter jurisdiction over an infringement claim until the Copyright Office grants the
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`registration application and issues a certificate of registration.” Corbis Corp., v. Amazon.com,
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`Inc., 351 F.Supp.2d 1090, 1112, 77 U.S.P.Q.2d 1182 (W.D. Wash. 2004). “Copyright
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`registration is not a prerequisite to a valid copyright, but it is a prerequisite to a suit based on a
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`ORDER - 3
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`Case 3:09-cv-05053-RJB Document 17 Filed 03/25/09 Page 4 of 5
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`copyright.” Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1211 (9th Cir. 1998).
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`The plaintiff has admitted in their response that they are not claiming that the defendant is
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`infringing on the unregistered derivative works, the AirTran Safety Cards. Rather, the plaintiff
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`asserts that the claim is regarding the registered copyrighted works owned by the plaintiff. Since
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`the plaintiff has a valid registered copyright, this court has subject matter jurisdiction over the
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`matter. To the extent the plaintiff’s claim is for the copyright infringement of unregistered
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`derivative works, the defendant’s motion to dismiss should be granted. Otherwise, this court has
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`subject matter jurisdiction over the plaintiff’s claim for copyright infringement of registered
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`works.
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`B. Failure to Adequately Plead
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`The defendant asserts that the plaintiff’s claim for copyright infringement should be
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`dismissed because the plaintiff’s claim is not supported by factual allegations. Defendant argues
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`that there is a heightened pleading requirement regarding copyright claims and the plaintiff has not
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`met that pleading requirement. Plaintiff responds that they have adequately alleged facts to
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`support their claim of copyright infringement.
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`To prove copyright infringement, the plaintiff must demonstrate that (1) it owns a valid
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`copyright, and (2) the defendant violated one or more of the plaintiff’s exclusive rights under the
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`Copyright Act. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282,
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`113 L.Ed.2d 358 (1991), Funky Films, Inc. v. Time Warner Entertainment Co., L.P., 462 F.3d
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`1072 (9th Cir. 2006), Lucky Break Wishbone Corp. v. Sears, Roebuck and Co., 528 F.Supp.2d
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`1106 (W.D. Wash. 2007).
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`The plaintiff has alleged that they own a copyright to the relevant material and the
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`copyright is valid. To support this allegation, the plaintiff has attached copies of the certificates of
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`registration regarding the protected material. The plaintiff has also alleged that the defendant has
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`violated one or more of the plaintiff’s exclusive rights by copying protected material. This
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`allegation is supported by copies of the relevant copyrighted material and the defendant’s
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`material, the AirTran safety cards. The plaintiff has sufficiently plead a cause of action in this
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`ORDER - 4
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`Case 3:09-cv-05053-RJB Document 17 Filed 03/25/09 Page 5 of 5
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`case.
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`For the foregoing reasons, the defendant’s motion to dismiss should be denied.
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`III. ORDER
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`Therefore, it is hereby ORDERED that the defendant’s motion to dismiss (Dkt. 13) is
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`GRANTED IN PART and DENIED IN PART as follows:
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`(1) the defendant’s motion to dismiss the plaintiff’s claim regarding unregistered derivative
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`works is GRANTED;
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`(2) the defendant’s motion to dismiss is otherwise DENIED.
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`The Clerk is directed to send uncertified copies of this Order to all counsel of record and
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`to any party appearing pro se at said party’s last known address.
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`DATED this 25th day of March, 2009.
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`A R
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`OBERT J. BRYAN
`United States District Judge
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`ORDER - 5