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Casterlow-Bey v. Ebay, Inc.

United States District Court, W.D. Washington Tacoma

December 29, 2017

GARY CASTERLOW-BEY, Plaintiff,
v.
EBAY, INC., Defendant.

          ORDER ON MOTION TO DISMISS

          ROBERT J. BRYAN United States District Judge

         This matter comes before the Court on Defendant eBay, Inc.'s (“eBay”) Motion to Dismiss. Dkt. 7. The Court has considered the motion and the remainder of the record herein.

         This case arises from the alleged sale of Plaintiff's books on Defendant eBay's website. Dkt. 4. Plaintiff is a pro se prisoner, proceeding IFP. Dkt. 3. Defendant “eBay operates a popular Internet Web site that allows private sellers to list goods they wish to sell, either through an auction or at a fixed price.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 390 (2006). Defendant eBay now moves for dismissal of the claims asserted against it pursuant to Fed.R.Civ.P. 12 (b). Dkts. 7. On December 6, 2017, the motion was provisionally granted, and Plaintiff was given an opportunity to amend his complaint in an effort to properly plead his claims. Dkt. 16. Plaintiff filed an Amended Complaint. Dkt. 20. After review of the Amended Complaint, eBay's Motion to Dismiss (Dkt. 7) should be granted and the claims dismissed for the reasons provided below.

         I. FACTS AND PROCEDURAL HISTORY

         This case is one of several Plaintiff has filed against the alleged publisher (Trafford Publishing Company) of his books and various alleged sellers of those books: Google.Com, Inc., Amazon.Com, Inc., eBay, Inc., and Barnes & Nobles [sic]. Casterlow-Bey v. Trafford Publishing Company, Western District of Washington case number 17-5459-RJB; Casterlow-Bey v. Google.Com, Inc., et. al., U.S. District Court for the Western District of Washington case number 17-5686; Casterlow-Bey v. Amazon.Com, et al., Western District of Washington case number 17-5833 RJB; Casterlow-Bey v. Barnes and Nobles, U.S. District Court for the Western District of Washington case number 17-5834 and Casterlow-Bey v. Barnes and Nobles, U.S. District Court for the Western District of Washington case number 17-5871.

         The facts and procedural history regarding this case are in the December 6, 2017 order, and are repeated here, for ease of reference:

On August 30, 2017, Plaintiff, a pro se prisoner, filed this case, moved to proceed in forma pauperis (“IFP”), and provided a proposed complaint asserting that Defendant eBay, Inc. committed copyright infringement, breached a contract, and committed fraud when Plaintiff's books were sold on its website. Dkts. 1, 1-1, and 4. He was granted IFP. Dkt. 3.
According to the Complaint, Plaintiff and non-party Trafford Publishing Company (“Trafford”) (Plaintiff has other lawsuits pending against Trafford) entered a contract in which Trafford would publish and distribute Plaintiff's books and would then pay Plaintiff the royalties from the sales. Dkt. 4. Although Plaintiff asserts that he is the copyright owner of the books, he does not allege that he registered any of them with the Copyright Office. Id.
Plaintiff further maintains that “[a] fake/illegal/bogus contract was produced by Trafford Publishing Company with false name, address, and phone number signed by someone other than Plaintiff entering into agreement with eBay to sale Plaintiffs [sic] books universally for astronomical, ridiculous prices, ” which hurt the market for his books because his “target audience was poor, impoverished children living in crime/gang infested areas . . . .” Id., at 2-3. Plaintiff alleges that “[b]oth eBay and Trafford . . . have conspired to exploit and deprive Plaintiff of his royalty payments for copyrighted work.” Id., at 3. He maintains that “[b]oth companies have gained financially at [sic] expense of Plaintiff's hard labor and ultimate dream of being successfully recognized and honored in the literary world.” Id. In addition to copyright infringement, breach of contract, and fraud claims, Plaintiff's Complaint also asserts that eBay violated his civil constitutional rights, committed “criminal conspiracy” and engaged in “international racketeering.” Id. Plaintiff seeks injunctive relief and several million dollars in damages. Id.
Defendant eBay moved to dismiss on November 6, 2017. Dkt. 7. The Court issued a notice to Plaintiff, as a pro se litigant, regarding eBay's motion to dismiss under Fed.R.Civ.P. 12 (b), and Plaintiff's obligations if he intended to oppose the motion. Dkt. 14. Plaintiff did not respond to the motion to dismiss.

         Dkt. 16, at 2-3. The order noted that Plaintiff's claim for copyright infringement should be dismissed because Plaintiff failed to allege that any of his works were registered with the U.S. Copyright Office and so, there is no allegation supporting this Court's subject matter jurisdiction under Fed.R.Civ.P. 12 (b)(1). Id., at 4. It further noted that Plaintiff's other claims: breach of contract, fraud, violation of Plaintiff's constitutional rights, criminal conspiracy, and racketeering should be dismissed for failure to state a claim under Rule 12 (b)(6). Id. Plaintiff was given until December 22, 2017 to amend his complaint in order to establish subject matter jurisdiction and to attempt to state a claim. Id.

         After the order was entered, on December 7, 2017, Plaintiff filed a pleading with the Court, stating that “Plaintiff has never received a motion to dismiss from Plaintiff to respond to.” Dkt. 18.

         On December 12, 2017, Plaintiff filed a response to two motions to dismiss in Casterlow-Bey v. Google.Com, Inc., et. al., U.S. District Court for the Western District of Washington case number 17-5686, Dkt. 23. On the fourth page of this pleading, Plaintiff wrote: “*Also, this is the response to eBay through its attorney . . . case number 3:17-cv- 05687-RJB.” Id. The Clerk of the Court docketed this pleading in this case. Dkt. 19. In this pleading, Plaintiff argues that “[i]t is undisputed that Defendants have engaged in ‘predicate acts' that constitute an ‘illegal pattern of racketeering activity' dating back to 2006.” Dkt. 19, at 1-2. He maintains that “Defendants cannot claim ‘lawful sales' of Plaintiff's books because ‘all sales' by Trafford Publishing and third party distributors stem from falsified, forged, and fraudulent contract/document that ultimately initiated national and international conspiracy to illegally traffic in stolen property for financial gain.” Id., at 3. Plaintiff argues that “Trafford Publishing, through Defendants, have deprived Plaintiff of his legal earnings, none of the named Defendants have legal authorization or justification under civil or criminal statutes to manufacture or distribute Plaintiff's copyrighted work.” Id. He asserts that the “exhibits attached to this motion demonstrate Defendants' involvement in sales of Plaintiffs' copyrighted work not only in foreign countries but all over the United States.” Id. Plaintiff also attaches documents entitled “Sales and Royalties Page” and “Trafford Publishing Quarterly Royalty Report, ” which purport to relate to sales in the United States. Dkt. 19, at 5-7. Plaintiff also again asserts that he “owns the copyrights to all (3) books published through Trafford, attached to this motion is a copy of original contract outlining details of copyright/registration ownership, i.e. ‘Exhibit D' page 3, paragraphs 5.6 and 5.7.” Id. Exhibit D is entitled “Trafford Publishing Self-Publishing Services Agreement.” Dkt. 19, at 8-18. Page three, paragraphs 5.6 and 5.7 provide:

5.6 Copyright and Title Registration. If purchased by You as part of Your Services, We shall include a copyright notice in accordance with Your instructions in each copy of the Work. We shall secure a unique International Standard Book Number (ISBN) for each version of the work where applicable. You may not use the formatted Manuscript (at any stage of development) or finished Work, the ISBN, and/or cover with any other provider of similar Services at any time during or after the term of this agreement.
5.7 Rights to Manuscript and the Work. There are generally three sets of intellectual property rights that are included in any Work; (a) the first set of rights relates to the Manuscript or Your Work. You shall remain the sole and exclusive owner of all right, title, and interest in and to Manuscript and Your Work as initially submitted to Us. We shall have no right or license to use any Manuscript or Work except as permitted herein with respect to development of the resulting book in print, digital, or audio format; (b) the second set of intellectual property rights relates to content that We, Our employees, Our Affiliates or Our Contractors create as part of the Services that We offer ("Our Work Product"); and (c) the third set of intellectual property rights relates to the content that We own or that We license from third parties that We cannot transfer to You.

         Dkt. 19, at 10.

         On December 20, 2017, Plaintiff filed a pleading entitled, “Motion to Amend Complaint Pursuant to Courts [sic] Order of December 6, 2017.” Dkt. 20. The pleading contains provisions regarding jurisdiction, facts, claims and requested relief. Id. Accordingly, the Court will construe this pleading as Plaintiff's Amended Complaint.

         In the Amended Complaint, Plaintiff asserts that, “[t]his civil action originates from an unlawful, forged document/contract illegally crafted by Trafford Publishing” that “has a bogus signature . . . non-existent address, fabricated telephone number” and so, is “invalid.” Dkt. 20, at 1. He maintains that “every business transaction initiated from this bogus, illegal, and invalid document/contract is fruit of the poisonous tree.” Id. Plaintiff asserts that “[f]ruit of the poisonous tree doctrine mandates the suppression of all ‘fruits' derived from a defective, deficient source. Here the subject matter being ‘forged contract.'” Id. Plaintiff alleges that his copyrighted material was stolen with a forged contract. Id., at 2. Plaintiff asserts that Defendant eBay “has perpetually promoted, encouraged, and facilitated trafficking in stolen property since 2006, gaining financially with no regard for compensation to Plaintiff or with Plaintiff's consent.” Id. He alleges that even after being informed (via this lawsuit) that it was “trafficking in stolen goods, ” Defendant eBay “continue[d] to traffic in stolen property, i.e. Plaintiff's copyrighted material. With full knowledge of conspiracy, Defendant's actions rise to the level of criminal.” Id., at 3. Plaintiff alleges that “all (9) nine elements of fraud have been consciously committed.” Id. He asserts that:

[A] forged contract does . . . exist, forged contract is material to this complaint, the signature, address and phone number on the face of contract is false, Defendant possesses knowledge of the falsity, Defendant cannot claim ignorance. Plaintiff relies on the truth reflected in contract to safeguard his financial interest . . . Defendant has actively engaged in fraud since August 30, 2017 [the date this case was filed] . . . [I]n spite of knowledge of allegations of copyright infringement, Defendant continues to engage in the deliberate, conscious trafficking of stolen property on its online market outlet.

Id., at 3-4. As to “racketeering, ” Plaintiff maintains that he “has documentation from [Trafford] of actual eBay sales of Plaintiff's copyrighted work across the United States and abroad.” Id., at 4. He maintains that “[t]his is an ongoing civil conspiracy, an actual business enterprise through a pattern of racketeering activity. Every illegal sale of stolen property is a ‘predicate act' that has caused actual injury” in violation of the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. §§ 1961-1968 (“RICO”). Id.

         Plaintiff seeks five million dollars in damages. Id., at 4-5.

         II. DISCUSSION

         A. MOTION TO DISMISS 12 (b)(1) STANDARD

         A complaint must be dismissed under Fed. R. Civ. P.12 (b)(1) if, considering the factual allegations in the light most favorable to the plaintiff, the action: (1) does not arise under the Constitution, laws, or treaties of the United States, or does not fall within one of the other enumerated categories of Article III, Section 2, of the Constitution; (2) is not a case or controversy within the meaning of the Constitution; or (3) is not one described by any jurisdictional statute. Baker v. Carr, 369 U.S. 186, 198 (1962); D.G. Rung Indus., Inc. v. Tinnerman, 626 F.Supp. 1062, 1063 (W.D. Wash. 1986); see 28 U.S.C. §§ 1331 (federal question jurisdiction) and 1346 (United States as a defendant). When considering a motion to dismiss pursuant to Rule 12 (b)(1), the court is not restricted to the face of the pleadings, but may review any evidence to resolve factual disputes concerning the existence of jurisdiction. McCarthy v. United States, 850 F.2d 558, 560 (9th Cir. 1988), cert. denied, 489 U.S. 1052 (1989); Biotics Research Corp. v. Heckler, 710 F.2d 1375, 1379 (9th Cir. 1983). A federal court is presumed to lack subject matter jurisdiction until plaintiff establishes otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 ...


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