State, Dept. of Health and Rehabilitative Services v. Southpointe Pharmacy

• Decision Date: 13 May 1994
• Docket Number: No. 92-4237,92-4237
• Parties: 1994 Copr.L.Dec. P 27,263, 19 Fla. L. Weekly D1087 STATE, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. SOUTHPOINTE PHARMACY, Appellee.
• Court: Florida District Court of Appeals

Page 1377

636 So.2d 1377

1994 Copr.L.Dec. P 27,263, 19 Fla. L. Weekly D1087

STATE, DEPARTMENT OF HEALTH AND REHABILITATIVE SERVICES, Appellant, v. SOUTHPOINTE PHARMACY, Appellee.

No. 92-4237.

District Court of Appeal of Florida,

First District.

May 13, 1994.

Rehearing Denied June 14, 1994.

Karel Baarslag, Sr. Atty., Dept. of Health and Rehabilitative Services, Tallahassee, for appellant.

Daniel C. Brown and Alan Harrison Brents of Katz, Kutter, Haigler, Alderman, Davis & Marks, P.A., Tallahassee, for appellee.

BENTON, Judge.

The Department of Health and Rehabilitative Services (HRS) asks us to quash a writ of mandamus requiring it to furnish South Beach Pharmacy, Inc. d/b/a Southpointe Pharmacy (Southpointe) a copy of a hearing transcript HRS has on file, upon Southpointe's tender of copying costs. We believe the trial court correctly applied section 119.07(1)(a), Florida Statutes, and affirm the final judgment granting writ of mandamus.

Subject Matter Jurisdiction

Preliminarily, we address a jurisdictional question that the parties' pleadings raise by implication. A "litigant's failure to clear a jurisdictional hurdle can never be 'harmless' or waived by a court." Torres v. Oakland Scavenger Co., 487 U.S. 312, 317 n. 3, 108 S.Ct. 2405, 2409 n. 3, 101 L.Ed.2d 285 (1988). HRS filed a motion below to dismiss amended alternative writ of mandamus alleging that Southpointe sought to compel it to

violate the copyright of the court reporter by having the state copy a transcript and furnish it to Petitioner at Fifteen Cents ($.15) per page. The court reporter's charge would be One Dollar ($1.00) per page.

Anticipating HRS' defense, Southpointe had asserted, in its petition for alternative writ, that the "transcript is not copyrighted material ... and is not copyrightable." As state courts, the circuit court does not have jurisdiction of civil actions arising under the federal copyright statute, 17 U.S.C. Secs. 101 et seq., and we are without jurisdiction to decide the merits in such cases on appeal. ¹

A civil action arising under the "[c]opyright law is within the exclusive jurisdiction of the federal district courts. See ... Pincus v. Carlisle, 585 So.2d 1172 (Fla. 4th DCA 1991); Garrido v. Burger King Corp., 558 So.2d 79 (Fla. 3d DCA 1990)." Sparta Surf, Inc. v. Korda, 599 So.2d 242 (Fla. 4th DCA 1992). Until January 1, 1978, state courts had jurisdiction to decide common law copyright claims which were, indeed, predicated on state law. See, e.g., Manasa v. University of Miami, 320 So.2d 467 (Fla. 3d DCA 1975). Since then, state law protection of the right of first publication has been preempted, U.S. Const. art. VI, cl. 2; 17 U.S.C. Sec. 301, and Congress has ousted state courts of jurisdiction over cases brought to establish whether a copyright exists, to determine ownership in the case of a work made for hire, 17 U.S.C. Sec. 201(b), or to enforce exclusive legal or equitable rights "to reproduce the copyrighted work in copies." 17 U.S.C. Sec. 106(1). See Van Dusen v. Southeast First Nat'l Bank of Miami, 478 So.2d 82 (Fla. 3d DCA 1985). But see Rothschild v. Kisling, 417 So.2d 798 (Fla. 5th DCA 1982).

We are not persuaded, however, that Southpointe's mandamus petition should be viewed as arising under the federal copyright statute. Construing a statutory provision conferring appellate jurisdiction on the Federal Circuit in cases where federal district court jurisdiction was predicated on 28 U.S.C. 1338, the Court said:

In interpreting Sec. 1338's precursor, we held long ago that in order to demonstrate that a case is one "arising under" federal patent law "the plaintiff must set up some right, title or interest under the patent laws, or at least make it appear that some right or privilege will be defeated by one construction, or sustained by the opposite construction of these laws." Pratt v. Paris Gas Light & Coke Co., 168 U.S. 255, 259, 18 S.Ct. 62, 64, 42 L.Ed. 458 (1897). See Henry v. A.B. Dick Co., 224 U.S. 1, 16, 32 S.Ct. 364, 367, 56 L.Ed. 645 (1912). Our cases interpreting identical language in other jurisdictional provisions, particularly the general federal-question provision, 28 U.S.C. Sec. 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States"), have quite naturally applied the same test. See Gully v. First National Bank in Meridian, 299 U.S. 109, 112, 57 S.Ct. 96, 97, 81 L.Ed. 70 (1936) (the claim alleged in the complaint "must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another") (citations omitted). A district court's federal-question jurisdiction, we recently explained, extends over "only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law," Franchise Tax Board of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 2856, 77 L.Ed.2d 420 (1983), in that "federal law is a necessary element of one of the well-pleaded ... claims," id., at 13, 103 S.Ct. at 2848. Linguistic consistency, to which we have historically adhered, demands that Sec. 1338(a) jurisdiction likewise extend only to those cases in which a well-pleaded complaint establishes either that federal patent law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal patent law, in that patent law is a necessary element of one of the well-pleaded claims. See [Christianson v. Colt Industries Operating Corp.] 822 F.2d [1544], at 1553-1556 [ (Fed.Cir.1987) ]; [Christianson v. Colt Industries Operating Corp.] 798 F.2d [1051] at 1059-1061 [ (7th Cir.1986) ].

Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 807-09, 108 S.Ct. 2166, 2173-74, 100 L.Ed.2d 811 (1988) (footnote omitted). A case arises under copyright law if a well-pleaded complaint establishes either that copyright law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of copyright law, in that copyright law is a necessary element of one of the well-pleaded claims.

The present case arises under the public records law, sections 119.01 et seq., Florida Statutes (1993). The amended petition notwithstanding, copyright law is not an essential element of Southpointe's claim. Again by analogy to federal-question jurisdiction, a copyright law defense ought not defeat state court jurisdiction "even if the defense is anticipated in the plaintiff's complaint, and even if both parties admit that the defense is the only question truly at issue in the case." Franchise Tax Board of the State of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 14, 103 S.Ct. 2841, 2848, 77 L.Ed.2d 420 (1983).

No Absent Party Indispensable

For not wholly dissimilar reasons, we reject HRS' contention that Southpointe's petition should have been dismissed because "[t]here has been a failure to join an indispensable party; the court reporter, Lori Dezell, and Associated Court Reporters, Inc." (HRS' Motion To Dismiss.) The copyright holder, if there is one, is no more necessary or indispensable to this proceeding than the manufacturer of HRS' copying machines or the purveyor of its copying paper. The trial court's judgment and writ of mandamus do not purport to relieve HRS of its obligations to any supplier, or to anybody else. Nothing this case decides in any way alters HRS' rights or duties as between itself and the court reporter or her firm. ²

In no sense are HRS and the court reporter in privity. This case is unlike those finding an insured tortfeasor indispensable in an action against his insurer, see generally Hertz Corp. v. Piccolo, 453 So.2d 12 (Fla.1984), or finding the grantor of a deed indispensable in an action for reformation of the deed, see Skinner v. Simms, 355 So.2d 448 (Fla. 1st DCA 1978). "The rule announced in Milton v. City of Marianna, 107 Fla. 251, 144 So. 400, 402 [1932], is applicable," Alger v. Peters, 88 So.2d 903, 908 (Fla.1956), viz.:

The general rule in equity as to parties defendant is that, if the interest of those present and those absent are inseparable, the case must fail, but, if the interest of the parties present are separable, and the decree may be made without affecting the interest of those not present, the case may be decided on its merits as between those who are regularly before the court. 20 R.C.L. 703, Sec. 44. See, also, Johnson v. Benbow, 93 Fla. 124, 111 So. 504 [1927]; Mountein v. King, 75 Fla. 12, 77 So. 630 [1918].

Id. Equitable principles apply in the exercise of a Florida court's extraordinary writ jurisdiction. State ex rel. Haft v. Adams, 238 So.2d 843 (Fla.1970). A "court ought not dismiss an action on the grounds of failure to join an indispensable party if dismissal would foreclose the claim of the present plaintiffs and the only adverse result of failure to dismiss is a possible subsequent action against the defendant by the missing party." Phillips v. Choate, 456 So.2d 556, 558 (Fla. 4th DCA 1984) (citing Annot., Dismissal-Joinder Not Feasible, 21 A.L.R.Fed. 12, Secs. 9[g], 12 (1974)).

The Administrative Procedure Act

The transcript at issue here is part of the record of proceedings in an administrative hearing conducted under section 120.57, Florida Statutes, to which both HRS and Southpointe were parties. Section 120.57(1)(b)7., Florida Statutes (1993), provides, in pertinent part:

The agency shall accurately and completely preserve all testimony in the proceeding, and, on the request of any party, it shall make a full or partial transcript available at no more than actual cost.

With regard to administrative hearings like the one...