Case 2:10-cv-00248-GMS--MHB Document 15 Filed 07/21/10 Page 1 of 4
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`NOT FOR PUBLICATION
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`No. CV 10-248-PHX-GMS (MHB)
`ORDER
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`)))))))))))
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`Frank Pauline, Jr.
`Plaintiff,
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`vs.
`Chris Loose, et al.,
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`Defendants.
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`On February 2, 2010, Plaintiff Frank Pauline, Jr., who is confined in the Corrections
`Corporation of America-Saguaro Correctional Center in Florence, Arizona, filed a pro se
`Complaint (Doc. 1). In a March 4, 2010 Order, the Court directed Plaintiff to pay the
`$350.00 filing fee or file an Application to Proceed to Proceed In Forma Pauperis. Plaintiff
`filed a deficient Application to Proceed on March 15, 2010, which the Court denied with
`leave to re-file. On April 9, 2010, Plaintiff filed a second Application to Proceed In Forma
`Pauperis and certified account statement.
`By Order filed May 4, 2010, the Court granted Plaintiff in forma pauperis status and
`dismissed the Complaint with leave to amend. On July 2, 2010, after receiving an extension
`of time, Plaintiff filed a First Amended Complaint (Doc. 14). The Court will dismiss the
`Amended Complaint and this action.
` I.
`Section 1915(e)(2), 28 U.S.C.
`When a plaintiff is permitted to proceed in forma pauperis, the Court must dismiss a
`complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or
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`Case 2:10-cv-00248-GMS--MHB Document 15 Filed 07/21/10 Page 2 of 4
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`malicious, that fail to state a claim upon which relief may be granted, or that seek monetary
`relief from a defendant who is immune from such relief. 28 U.S.C. § 1915(e)(2). If the
`Court determines that a pleading could be cured by the allegation of other facts, a pro se
`litigant is entitled to an opportunity to amend a complaint before dismissal of the action. See
`Lopez v. Smith, 203 F.3d 1122, 1127-29 (9th Cir. 2000) (en banc). Plaintiff’s Amended
`Complaint will be dismissed for failure to state a claim.
`II. Amended Complaint
`In his Amended Complaint, Plaintiff sues Chris Loose, Rick Castberg, Harper Collins
`Publishing, and Avon Books. Although extremely vague, Plaintiff appears to claim that
`Defendants wrote and published a book based on his criminal conviction without his
`authorization. Plaintiff appears to assert claims of negligence, libel, and copyright
`infringement. Plaintiff seeks monetary damages and injunctive relief.
`III.
`Improper Venue
`Title 28 U.S.C. § 1391(b) provides that a civil action in which jurisdiction is not based
`on diversity may be brought only in:
`(1) a judicial district where any defendant resides, if all defendants reside in
`the same State, (2) a judicial district in which a substantial part of the events
`or omissions giving rise to the claim occurred, or a substantial part of property
`that is the subject of the action is situated, or (3) a judicial district in which any
`defendant may be found, if there is no district in which the action may
`otherwise be brought.
`Plaintiff does not base jurisdiction for this action in the Court’s diversity jurisdiction,
`but rather states that jurisdiction for this action is based on “copyright infringement.”
`Although Plaintiff’s jurisdictional basis is not clear, Plaintiff states that the events at issue
`in this case occurred in Hilo, Hawaii. Moreover, it appears that the individual Defendants
`reside in Hawaii. Plaintiff makes no allegations regarding the location of the corporate
`Defendants, but they do not appear to reside in Arizona.1 Accordingly, pursuant to 28 U.S.C.
`§ 1391(b), venue is not proper in this District.
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`1The Harper Collins Publishers’ website states that Harper Collins is headquartered
`in New York. See http://www.harpercollins.com/footer/companyprofile.aspx. Avon Books
`is a publishing imprint of Harper Collins. Id.
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`Case 2:10-cv-00248-GMS--MHB Document 15 Filed 07/21/10 Page 3 of 4
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`Pursuant to 28 U.S.C. § 1406(a), the Court may dismiss or transfer any action “laying
`venue in the wrong division or district.” 28 U.S.C. § 1404(a) provides that “[f]or the
`convenience of the parties and witnesses, in the interest of justice, a district court may
`transfer any civil action to any other district or division where it might have been brought.”
`The decision to transfer under section 1404(a) lies within the discretion of the district court
`and is to be determined upon notions of convenience and fairness on a case-by-case basis.
`Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988).
`The Court will decline to transfer this action to the United States District Court for the
`District of Hawaii because Plaintiff has not filed a viable Amended Complaint. First, the
`Court notes that Plaintiff’s basis for jurisdiction is extremely vague. Although federal courts
`have exclusive jurisdiction over actions that arise under federal copyright law, the fact that
`an action involves a copyright issue alone does not satisfy federal jurisdictional requirements.
`Vestron, Inc. v. Home Box Office, Inc., 839 F.2d 1380, 1381 (9th Cir. 1988). “[A]n action
`arises under the federal copyright laws if and only if the complaint is for a remedy expressly
`granted by the [Copyright] Act, . . . or asserts a claim requiring construction of the Act, . . .
`or, at the very least and perhaps more doubtfully, presents a case where a distinctive policy
`of the Act requires that federal principles control the disposition of the claim.” Id. In this
`case, Plaintiff has not alleged that he owns a copyright over the materials in question nor is
`it clear that Plaintiff’s claims arise under federal copyright law–Plaintiff’s claims may be
`more appropriately brought pursuant to state tort law.
`Further, it appears that Plaintiff’s claims are barred by the statute of limitations. The
`statute of limitations for violation of federal copyright law is three years. 17 U.S.C. § 507(b).
`The book at issue in this case was published in 2003, nearly seven years before Plaintiff filed
`the present action.
`Because the Court finds that transfer to another district is not appropriate, the Court
`will dismiss this action for improper venue.
`. . .
`. . .
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`Case 2:10-cv-00248-GMS--MHB Document 15 Filed 07/21/10 Page 4 of 4
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`IT IS ORDERED that the Amended Complaint (Doc. 14) and this action are
`dismissed without prejudice for improper venue pursuant to 28 U.S.C. § 1391(b).
`DATED this 20th day of July, 2010.
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