Offley v. Activision, Inc., 040908 FED09, 06-56238

Docket Nº:06-56238
Party Name:HOWARD OFFLEY; et al., Plaintiffs - Appellants, v. ACTIVISION, INC.; et al., Defendants - Appellees.
Judge Panel:Before: BEEZER, T.G. NELSON, and SILVERMAN, Circuit Judges.
Case Date:April 09, 2008
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

HOWARD OFFLEY; et al., Plaintiffs - Appellants,


ACTIVISION, INC.; et al., Defendants - Appellees.

No. 06-56238

United States Court of Appeals, Ninth Circuit

April 9, 2008


Submitted April 7, 2008 [**] Pasadena, California

Appeal from the United States District Court for the Central District of California D.C. No. CV-04-05355-TJH Terry J. Hatter, District Judge, Presiding

Before: BEEZER, T.G. NELSON, and SILVERMAN, Circuit Judges.


Plaintiffs appeal the district court’s summary judgment in favor of defendants Activision, Riley and Vybe Squad, LLC. Plaintiffs alleged that defendants violated the Copyright Act of 1976 and California Civil Code § 3344 by using plaintiffs’ music, likenesses, and names in the video game “True Crime: Streets of L.A.” We have jurisdiction pursuant to 28 U.S.C. § 1291. We review the district court’s grant of summary judgment de novo, Weber v. Dep’t of Veterans Affairs, 512 F.3d 1178, 1181 (9th Cir. 2008), and affirm.

Plaintiffs’ 11-page opening brief contains no citation to the excerpts of record, no standards of review, no statement of the issues presented for review, no summary of the argument, an inadequate jurisdictional statement and challenges only one of the three alternative summary judgment grounds presented to the district court for the copyright claims. See Fed. R. App. P. 28(a); Circuit Rule 28-2. Even though the defendants requested dismissal of the appeal in their response brief, plaintiffs did not file a reply brief or attempt to cite to the record. These defects are grounds to strike the brief and summarily affirm. Sekiya v. Gates, 508 F.3d 1198, 1200 (9th Cir. 2007); Han v. Stanford Univ., 210 F.3d 1038, 1040 (9th Cir. 2000). Plaintiffs’ failure to cite to the record alone violates Fed. R. App. P. 28(a)(9)(A) and Circuit Rule 28-2.8 and justifies dismissal of the appeal. Han, 210 F.3d at 1040.

These are not just technical defects. Having failed to cite to the record, plaintiffs have not pointed to any factual dispute that requires trial and precludes summary judgment. Fed.R.Civ.P. 56; S.A. Empresa De Viacao Aerea Rio Grandense (Varig Airlines) v. Walter Kidde & Co., 690 F.2d 1235, 1238 (9th Cir. 1982).

As for the law, defendants motion for summary judgment was based on three grounds implied license, express license and equitable estoppel. The...

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