United States District Court, W.D. Washington, Seattle
JAMES L. ROBART, District Judge.
Before the court are Defendants Mark and Kathleen Armstrong and Craig Diamond's (collectively, "the Individual Defendants") motion to dismiss the complaint as against the Individual Defendants and Defendant Jane Doe Diamond pursuant to Federal Rule of Civil Procedure 12(b)(6) (Mot. (Dkt. # 13)); Plaintiff Urban Accessories, Inc.'s ("Urban Accessories") combined opposition memorandum and motion to strike (Resp. (Dkt. # 19)); the Individual Defendants' reply memorandum (Reply (Dkt. # 20)); and Urban Accessories' surreply motion to strike under Local Civil Rule 7(g) (Surreply (Dkt. # 21)). Having considered the submissions of the parties and the relevant law and being fully advised,  the court denies the Individual Defendants' motion to dismiss and grants Urban Accessories' motions to strike.
This is a copyright infringement case. Plaintiff Urban Accessories designs, manufactures, and sells cast iron architectural accessories, including grates that protect trees located in or around sidewalks. (Compl. (Dkt. # 1) ¶¶ 1-2, 9.) Urban Accessories claims that in January 1986 it created an original design for a tree grate known as the OT-T24 Tree Grate. ( Id. ¶ 9.) Urban Accessories further claims that OT-T24 grates entail artistic, copyrightable features, and indeed, Urban Accessories obtained a copyright for the OT-T24's visual design and iron sculptural form from the United States Copyright Office on June 4, 2014. ( See id. ¶¶ 11, 19, Ex. A.)
In April 2012, Urban Accessories submitted a bid to manufacture and supply the OT-T24 Tree Grate for a rail yard revitalization project ("the project") in Sacramento, California. ( Id. ¶ 12.) The project required bidders to incorporate the OT-T24 Tree Grate or an "equal'" design. ( Id. ) Ultimately, Urban Accessories received and filled an order for a portion of the project's needs. ( Id. ¶¶ 13-14.) For subsequent orders, however, the purchasing contractor for the project obtained permission to accept designs that were "alternative but equal'" to the OT-T24 Tree Grate ( id. ¶ 15), and Defendant Iron Age Design and Import, LLC ("Iron Age") submitted a successful bid with a competing design.
In April 2014, Urban Accessories wrote to Iron Age expressing concern that Iron Age's competing design infringed Urban Accessories' copyrights. ( Id. ¶ 17.) Iron Age rejected that suggestion and in September 2014 began manufacturing its competing tree grates and installing them at the project site. ( Id. ¶¶ 18, 20.) Shortly thereafter, Urban Accessories filed this lawsuit with a single cause of action for copyright infringement. ( See id. at 1, ¶¶ 22-29.)
In its complaint, Urban Accessories asserts copyright infringement against Iron Age as well as "Mark Armstrong and Kathleen Armstrong, husband and wife, and the marital community composed therein; and Craig and Jane Doe Diamond, husband and wife, and the marital community composed therein." ( Id. at 1.) The complaint alleges that Mr. Armstrong is a former employee of Urban Accessories as well as a member and the current president of Iron Age, and that Mr. Armstrong "personally directed or otherwise participated in the decision to make Iron Age's competing (and infringing) tree grates, which he knew copied Urban Accessories' original designs." ( Id. ¶ 4.) The complaint additionally alleges that Craig Diamond worked as a designer for Urban Accessories, is now a member and employee of Iron Age, and "was personally responsible for designing Iron Age's competing (and infringing) tree grates, which he knew copied Urban Accessories' original designs." ( Id. ¶ 5.) Furthermore, the complaint contends that Mr. Armstrong and Mr. Diamond acted for the benefit of their respective marital communities. ( See id. ¶¶ 4-5.)
Just over a month after Urban Accessories filed its complaint, the Individual Defendants responded with their motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). ( See Mot. at 1.) The Individual Defendants seek the dismissal of the claims against themselves and Jane Doe Diamond on the basis that "[t]he Complaint contains no specific allegations implicating any of the INDIVIDUAL DEFENDANTS as individuals in any of the alleged infringing acts cited in the Complaint." ( Id. at 4 (emphasis and capitalization in original).) Furthermore, the Individual Defendants urge the court to dismiss the claims against them with prejudice as such claims cannot, they argue, be saved by amendment. ( See id. at 8.) In support of their position, the Individual Defendants offer declarations contesting the factual bases of the complaint's allegations. ( See id.; Reply at 7-9; K. Armstrong Decl. (Dkt. # 13-1); M. Armstrong Decl. (Dkt. # 13-2); Diamond Decl. (Dkt. # 13-3); M. Armstrong Supp. Decl. (Dkt. # 20-1).) Urban Accessories opposes the Individual Defendants' assertions regarding the sufficiency of the complaint and also moves the court to strike the Individual Defendants' declarations. ( See generally Resp.; Surreply.) The parties' motions are now before the court.
A. Legal Standard
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see al -Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal under Rule 12(b)(6) can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
When considering a motion to dismiss under Rule 12(b)(6), the court construes the complaint in the light most favorable to the non-moving party. Livid Holdings Ltd. v. Salomon Smith Barney, Inc., 416 F.3d 940, 946 (9th Cir. 2005). The court must accept all well-pleaded facts as true and draw all reasonable inferences in favor of the plaintiff. Wyler Summit P'ship v. Turner Broad. Sys., Inc., 135 F.3d 658, 661, 663 (9th Cir. 1998).
Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion to dismiss. Lee v. City of L.A., 250 F.3d 668, 688 (9th Cir. 2001) (citations omitted), overruled on other grounds by Galbraith v. Cnty. of Santa Clara, 307 F.3d 1119 (9th Cir. 2002); see Fed.R.Civ.P. 12(d). The Ninth Circuit has carved out three exceptions to this rule. First, a court may consider material properly submitted as a part of the complaint. Branch v. Tunnell, 14 F.3d 449, 453 (9th Cir. 1994) (citations omitted), overruled on other grounds by Galbraith, 307 F.3d 1119. Second, a court may consider "documents whose contents are alleged in the complaint and whose authenticity no party questions, but which are not physically attached to the pleading[.]" Id. at 454. Third, a court may take judicial notice of matters of public record. Lee, 250 F.3d at 688-89 (citations omitted). If other materials are presented to the court and not excluded, the ...