United States District Court, W.D. Washington Tacoma
ORDER ON MOTION TO DISMISS
J. BRYAN United States District Judge
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.
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
FACTS AND PROCEDURAL HISTORY
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
facts and procedural history regarding this case are in the
December 6, 2017 order, and are repeated here, for ease of
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
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.
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.
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.
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.
19, at 10.
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.
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
[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.
seeks five million dollars in damages. Id., at 4-5.
MOTION TO DISMISS 12 (b)(1) STANDARD
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