Pollstar v. Gigmania, Ltd.
| Decision Date | 17 October 2000 |
| Docket Number | No. CIV-F-00-5671 REC SMS.,CIV-F-00-5671 REC SMS. |
| Citation | 170 F.Supp.2d 974 |
| Parties | POLLSTAR Plaintiff, v. GIGMANIA LTD. Defendant. |
| Court | U.S. District Court — Eastern District of California |
Steven E Shapiro, Mitchell Silberberg and Knupp, Los Angeles, CA, Scott T. Shewan, Botn Pape and Shewan, Clovis, CA, for plaintiff.
Mitchell Harris Zimmerman, Bradford C. Lewis, Fenwick and West, Palo Alto, CA, for defendant.
ORDER DENYING DEFENDANT GIGMANIA LTD.'S MOTION TO DISMISS COMPLAINT
On September 18, 2000 the court heard Defendant Gigmania Ltd.'s ("Gigmania") motion to dismiss the Complaint under Fed.R.Civ.P. 12(b)(6) for failure to state a claim. In connection with its Rule 12(b)(6) motion, Gigmania requested judicial notice of the following documents: 1) a printout of Pollstar's Internet web site as it existed on July 9, 2000; 2) a copy of the First Amended Complaint filed in Ticketmaster Corp. v. Tickets.com, Inc.; 3) a copy of Notice of Defendant Tickets.com's Motion to Dismiss Plaintiff's Amended Complaint and Motion to Dismiss filed in Ticketmaster; 4)a copy of the Memorandum of Points and Authority in Support of Defendant Tickets.com's Motion to Dismiss Plaintiff's Amended Complaint filed in Ticketmaster; 5) a copy of Plaintiffs' Opposition to Motion to Dismiss Plaintiffs' Amended Complaint filed in Ticketmaster; 6) a copy of the Reply Brief in Support of Tickets.com's Motion to Dismiss filed in Ticketmaster; 7) a copy of the Copyright Office Circular 66, "Copyright of Registration for Online Works."
Upon due consideration of the written and oral arguments of the parties and the record herein, the court denies Gigmania's motion to dismiss for the reasons set forth herein.
The complaint alleges three claims against Gigmania. The first claim is for common law misappropriation. The second claim is for unfair competition under Cal. Bus. & Prof.Code § 17200. The last claim is for breach of contract of the license agreement.
Pollstar alleges that it created and developed up-to-the-day time sensitive concert information that was published daily on its web site — www.pollstar.com—at great time and expense to itself. Complaint, ¶ 5. By accessing the pollstar.com web site, an Internet user can download and use the timely and up-to-date concert information pursuant to conditions of a license agreement. Complaint, ¶ 8.1 Pollstar alleges that Gigmania downloaded pollstar.com from the Internet and placed information that is copied from the pollstar.com web site on its web site at www.gigmania.com.
For the common law misappropriation claim, Pollstar alleges the following: 1) it collects and generates information regarding the concert industry — the value of which is found in the accuracy and the time sensitive nature of some of the information; 2) the defendant uses plaintiff's information and sells the information for commercial purposes in direct competition with Plaintiff; 3) the defendant free-rides on Plaintiff's costly efforts which if allowed to continue will reduce Pollstar's incentive to collect and publish the information; 4) the defendant has intentionally and knowingly misappropriated Plaintiff's information; 5) Plaintiff has been irreparably damaged by Defendant's use of Plaintiff's information. Id. at ¶ 17-22.
For the state claim of unfair competition under Cal. Bus. & Prof.Code § 17200, Pollstar alleges that defendant has been appropriating Plaintiff's property and has therefore been engaging in unfair trade practices and unfair competition against Plaintiff to its irreparable harm. Id. at ¶ 23-24.
Finally, Pollstar alleges a breach of contract claim. It alleges that any user of its pollstar.com web site is immediately confronted with a notice that use of the web site is subject to a license agreement, which is set forth on the web site. Id. at ¶ 26. Pollstar states that by clicking on the access button to retrieve any of the information contained in the web site, Defendant agreed to be bound by the terms of the License Agreement. Id. at ¶ 27. Pollstar further alleges that since March 9, 2000 and before, Defendant has downloaded concert information from Plaintiff's web site and used the information for commercial purposes in breach of the contract. Id. at ¶ 28. Finally, Plaintiff alleges that it has been harmed by Defendant's use of its information because it has lost sales of the information to commercial purchasers. Id. at ¶ 29.
Under Rule 12(b)(6), "dismissal for failure to state a claim is proper only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Cervantes v. City of San Diego, 5 F.3d 1273, 1274 (9th Cir.1993) (citations omitted). Rule 12(b)(6) should be read in conjunction with Rule 8(a) which requires "a short and plain statement of the claim showing that the pleader is entitled to relief." 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure 1355-56 (1990). Moreover, a court "must accept all material allegations in the complaint as true, and construe them in the light most favorable to the plaintiff." NL Industries v. Kaplan, 792 F.2d 896 (9th Cir.1986).
In addition, unless a Rule 12(b)(6) motion is converted to a motion for summary judgment, "evidence outside the pleadings cannot normally be considered in deciding a 12(b)(6) motion." Farr v. United States, 990 F.2d 451, 454 (9th Cir.1993). However, a court may consider material submitted as part of the complaint and take judicial notice of facts outside the pleadings. Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1554 n. 19 (9th Cir.1990); Mack v. South Bay Beer Distribs., Inc. 798 F.2d 1279, 1282 (9th Cir.1986), abrogated on other grounds, Astoria Federal Sav. and Loans Ass'n v. Solimino, 501 U.S. 104, 111 S.Ct. 2166, 115 L.Ed.2d 96 (1991). Furthermore, "documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading, may be considered in ruling on a Rule 12(b)(6) motion to dismiss." Branch v. Tunnell, 14 F.3d 449, 454 (9th Cir.), cert. denied, 512 U.S. 1219, 114 S.Ct. 2704, 129 L.Ed.2d 832 (1994).
In Branch, the plaintiff brought a Bivens action against the government agent who executed a search warrant. Id. at 450. The plaintiff referred to two documents — a deposition transcript and an affidavit — in his amended complaint but did not attach the documents as part of the complaint. Id. at 453. The district court treated the documents as part of the pleadings for purposes of deciding the defendant's motion to dismiss. Id. The Ninth Circuit held that the district court did not err in considering either documents. Id. at 454. The court stated that "[s]uch consideration does not `convert the motion to dismiss into a motion for summary judgment.'" Id. (quoting Romani v. Shearson Lehman Hutton, 929 F.2d 875, 879 (1st Cir.1991)).
In conjunction with its Rule 12(b)(6) motion, the defendant requested judicial notice of a printout of the pollstar.com web site, a copy of Copyright Office Circular 66 as well as various pleadings filed in Ticketmaster Corp. v. Tickets.com, Inc., United States District Court for the Central District of California, Case No. 99-07654 HLH (BQRx).
Under Federal Rule Evidence 201(d), the court shall take judicial notice of adjudicative facts if requested by a party and supplied with the necessary information. "A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1)generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed. R.Evid. 201(b).
In the present case, some of the contents of the pollstar.com web site were alleged in the complaint. In particular, the license agreement and its notice is mentioned in the Complaint. Moreover, neither party disputes the web site's authenticity. Therefore, the court can and does consider the pollstar.com web site in determining Gigmania's Rule 12(b)(6) motion.2 The court need not consider whether a printout of a web site as that site existed on July 9, 2000 is "generally known" and "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned."
In addition, Gigmania is seeking to have pleadings from an unrelated district court case judicially noticed. Gigmania is asking the court to take judicial notice of documents that are quite different from documents held to be proper subjects for judicial notice by the Ninth Circuit. In Mack, the Ninth Circuit ruled that the district court could take judicial notice of the California Unemployment Insurance Appeals Board's decision. Mack, 798 F.2d 1279 at 1282. In Assembly of State of California, the district court judicially noticed two orders relating to the defendant and records from the Bureau of Census and the House Subcommittee on Census and Population. Assembly of State of Cal v. Dep't of Commerce, 797 F.Supp. 1554, 1559 (E.D.Cal.), aff'd, 968 F.2d 916 (9th Cir.1992). In M/V American Queen, the Ninth Circuit held that the district court could look to unpublished orders to help it identify general policy considerations. M/V American Queen v. San Diego Marine Constr., 708 F.2d 1483, 1491 (9th Cir. 1983). These cases do not consider whether pleadings from an unpublished district court case can be judicially noticed. Because there is no authority for judicial notice of pleadings in an unrelated case, the court declines to take judicial notice of the Ticketmaster pleadings.
With respect to the Copyright Office Circular 66, the court takes judicial notice of the circular. Circular 66 informs the public that it can apply for copyright registration of online works made available over a communications network...
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