Opinion
2:24-cv-02345-HDV-PD
08-02-2024
Mia Vig et al. v. Lucas Foster et al. No
Present: The Honorable Hernan D. Vera, United States District Judge
CIVIL MINUTES - GENERAL
Proceedings: IN CHAMBERS- ORDER DENYING PLAINTIFFS' MOTION TO REMAND [PKT. NO. 22]
Before the Court is Plaintiffs' Motion to Remand (“Motion”) all claims. [Dkt. No. 22]. For the reasons described below, the Court denies Plaintiffs' Motion.
Plaintiffs filed the present case in Los Angeles Superior Court on February 20, 2024 against Lucas Foster. [Dkt. No 1-1], The case was removed to this Court on March 21, 2024. [Dkt No. 1]. Defendants subsequently filed an Answer to the Complaint on March 28, 2024, asserting counterclaims for declaratory judgement under the Copyright Act and the Declaratory Judgment Act. [Dkt. No. 9]. Plaintiffs timely filed this Motion on May 17, 2024
Plaintiffs filed a First Amended Complaint (“FAC”) in Los Angeles Superior Court on March 13, 2024. but did not properly sen e Defendants with the FAC until April 16, 2024. Plaintiffs argue that the FAC should be the operative complaint under which removal was based. But Courts have found that where an amended complaint is “not served by the time defendants file[] the notice of removal,” the original complaint is operative. Goldberg v. Cameron, No. 5:15-CV-02556-RMW, 2015 WL 5316339, at *3 (N.D.Cal. Sept. 11, 2015); see also Goel v. Coal. Am. Holding Co. Inc. No. CV 11 -2349 GAF (EX), 2011 WL 13128299 at *2 (C.D. Cal. May 19, 2011) (“the original complaint remained the operative complaint until the FAC was properly served”). Nevertheless, the relevant allegations in the original Complaint and the First Amended Complaint are identical.
Defendants argue that Plaintiffs' Motion for Remand is untimely. The Court disagrees. 28 U.S.C. § 1447(c) states that “a motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a).” The initial motion was filed within thirty days after removal, and the current Motion is based on the defect of subject matter jurisdiction. The Motion to Remand was timely.
A defendant may remove a case from state court to federal court pursuant to the federal removal statute, 28 U.S.C. § 1441. 28 U.S.C. § 1338 grants federal courts exclusive and original jurisdiction over copyright claims. See 28 U.S.C.A. § 1338(a). And the Leahy-Smith Act “created an exception to the general rule that counter-claims based in federal law cannot serve as the basis for jurisdiction.” TGaS Advisors, LLC v. Zensights, LLC, No. CV 16-1870 at *4, 2016 WL 2594643 (E.D. Pa. May 5, 2016); see also 28 U.S.C. § 1454. Courts have concluded in interpreting the Leahy-Smith Act, “that 28 U.S.C. § 1454 permits removal of copyright or patent counterclaims.” Moofly Prods., LLC v. Favila, No. CV-1305866-SJO-PJWX, 2015 WL 12655383 at *2 n.2 (C.D. Cal. July 13, 2015).
It is unclear on the face of Plaintiffs' Complaint whether there is a basis for remand. In the Original Complaint and the First Amended Complaint (hereinafter, “Complaints”), Plaintiffs state that they are asserting claims against Defendants based on “invasion of privacy, copyright infringement, contingent liability, defamation, and right to publicity.” Complaint ¶ 7; FAC ¶ 9. Indeed, the Complaints refer to copyright infringement again by stating that Defendants have taken Plaintiffs' rights away by “invading their privacy, infringing on their copyrighted material such as photos, video etc., by contingent liability, defamation, and their right to publicity.” Complaint ¶ 9(b); FAC ¶ 11(b). But Plaintiffs do not plainly and clearly assert copyright infringement as a cause of action. Instead, Plaintiffs request injunctive relief and only assert a cause of action for a “preliminary and permanent injunction.” Complaint ¶¶ 9-10; FAC ¶¶ 12-16. Charitably construed, Plaintiffs' injunctive relief action is based on a right of publicity claim and a common law claim for name and likeness, not copyright infringement. See Complaint ¶ 15; FAC ¶ 16.
On the other hand, it is clear on the face of Defendants' counterclaims that federal questions have been raised. Defendants assert a counterclaim seeking declaratory judgment under the Copyright Act and a counterclaim under the Declaratory Judgment Act. In the Copyright Act counterclaim, Defendants allege that they own a copyright of “The Kim Sisters,” Plaintiffs' life story rights, and that they have not infringed on any copyrights. This is sufficient to find jurisdiction. See Vermont v. MPHJ Tech. Investments, LLC, 803 F.3d 635, 644 (Fed. Cir. 2015) (Federal courts have “jurisdiction over claims arising under the patent [or copyright] laws even when asserted in counterclaims, rather than in an original complaint.").
Because the Court finds that there is subject matter jurisdiction based on the Counterclaims, the Court need not address the additional arguments in the briefing.
The Court, in its discretion and in the interest of judicial efficiency and economy, will exercise supplemental jurisdiction over Plaintiffs' claims to keep the matter unified. Where counterclaims are asserted after removal and arise under the Copyright Act, federal courts have “jurisdiction over the counterclaims, and could exercise supplemental jurisdiction over” the remaining claims. See Acorne Prods., LLC v. Tjeknavorian, 33 F.Supp.3d 175, 182 (E.D.N.Y. 2014). The Court finds no reason to depart from this principle.
The Motion to Remand is denied.
IT IS SO ORDERED.