noting it is “undisputed that Stebbins has proceeded in forma pauperis on at least sixteen complaints [as of 2014] that proved meritless, and 25 has filed numerous frivolous motions”
How later courts described this case
- noting it is “undisputed that Stebbins has proceeded in forma pauperis on at least sixteen complaints [as of 2014] that proved meritless, and 25 has filed numerous frivolous motions”
Written by the judges who cited it.
The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 DAVID A. STEBBINS, Case No. 22-cv-00546-JSW
8 Plaintiff,
ORDER LIFTING STAY, SCREENING
9 v. COMPLAINT, AND DISMISSING
CASE
10 EMILY REBOLO, et al.,
Re: Dkt. Nos. 8, 14
Defendants.
11
12
13 On February 23, 2022, the Court issued an order staying this case pending resolution of
14 of Stebbins v. Polano, 4:21-cv-4184-JSW (the “Related Case”). (See Dkt. No. 14.) On July 7,
15 2022, the Court issued an order dismissing the Related Case. Now that the Related Case is
16 resolved, the Court HEREBY LIFTS THE STAY.
17 The original complaint was filed on January 27, 2022, and the matter was randomly
18 assigned to Magistrate Judge Kim. On February 3, 2022, Judge Kim granted Plaintiff’s request to
19 proceed in forma pauperis but ordered a hold on service while the motion to relate this matter to
20 Stebbins v. Polano was decided. (Dkt. No. 8.) The cases were related, and this matter was
21 reassigned to the undersigned. (Dkt. Nos. 9-10.) Shortly thereafter, the Court stayed the case
22 pending resolution of the Related Case because a ruling in that case “will be relevant and
23 potentially fully dispositive in the present case.” (Dkt. No. 14.) Now that the stay is lifted and
24 because Plaintiff is proceeding in forma pauperis, the Court must screen Plaintiff’s complaint
25 under 28 U.S.C. section 1915 (“Section 1915”).
26 Under Section 1915(e)(2)(B), the Court must dismiss an in forma pauperis action if the
27 Court finds that the action “fails to state a claim on which relief may be granted” or that the action
1 319, 324 (1989). Section 1915(e)(2) parallels the language of Federal Rules of Civil Procedure
2 12(b)(6) regarding dismissals for failure to state a claim. See 28 U.S.C. § 1915(e)(2); see also
3 Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000). The complaint therefore must allege
4 facts that plausibly establish each defendant’s liability. See Bell Atl. Corp. v. Twombly, 550 U.S.
5 544, 555-57 (2007). “A claim has facial plausibility when the plaintiff pleads factual content that
6 allows the court to draw the reasonable inference that the defendant is liable for the misconduct
7 alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint is “frivolous” where it lacks
8 an arguable basis either in law or in fact. Neitzke, 490 U.S. at 325 (definition of “frivolous . . .
9 embraces not only the arguable legal conclusion, but also the fanciful factual allegation”). As the
10 United States Supreme Court has explained:
11 [the in forma pauperis statute] is designed largely to discourage the
filing of, and waste of judicial and private resources upon, baseless
12 lawsuits that paying litigants generally do not initiate because of the
costs of bringing suit . . . .[It affords] judges not only the authority to
13 dismiss a claim based on an indisputably meritless legal theory, but
also the unusual power to pierce the veil of the complaint's factual
14 allegations and dismiss those claims whose factual contentions are
clearly baseless.
15
Neitzke, 490 U.S. at 327-28 (emphasis added). “Dismissals on these grounds are often made sua
16
sponte prior to the issuance of process, so as to spare prospective defendants the inconvenience
17
and expense of answering such complaints.” Id. at 324.
18
Plaintiff brings this complaint about the infringement of several purportedly copyrighted
19
works. (See FAC ¶¶ 19-39.) “To establish to establish infringement of a copyright, two elements
20
must be proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the
21
work that are original.” Feist Publications, Inc. v. Rural Tel. Serv., Co., 499 U.S. 340, 361 (1991).
22
Plaintiff’s claims based on infringement of the April 10, 2021 livestream are dismissed
23
with prejudice. The Court dismissed, with prejudice, Plaintiff’s claims based on this livestream in
24
the Related Case, Stebbins v. Polano, 4:21-cv-4184-JSW, on the basis that the livestream lacks
25
creativity and human authorship because the recording occurred unbeknownst to Plaintiff. (See
26
Related Case, Dkt. No. 157.) For this reason, the copyright infringement claims based on the
27
April 10, 2021 livestream are dismissed, with prejudice, for failure to state a claim.
1 Plaintiff also brings copyright infringement claims against several defendants based on the
2 use of ten 2D images. (FAC ¶¶ 33-39.) The U.S. Copyright Office rejected Plaintiff’s request to
3 register the images for copyright protection because they are “basic geometric shapes,” which lack
4 sufficient creativity and human authorship for copyright protection lacked sufficient creativity.
5 (Id. ¶¶ 39, 161.) Based on the Copyright Office’s refusal, Plaintiff does not have a presumption of
6 validity over the 2D images.
7 Furthermore, Plaintiff’s allegations fall short of establishing the copyrightability of the 2D
8 images. As described in the complaint, the images are a “blue honeycomb background”
9 comprised of hexagons. (Id. ¶ 161.) But as the U.S. Copyright Office found, there is no copyright
10 protection for basic geometric shapes. Nevertheless, Plaintiff alleges the images meet the standard
11 for creativity because he put the “hexagons in a honeycomb pattern with a gradiant [sic] color
12 scheme.” (Id.) As alleged, the Court concludes that there is an insufficient degree of creativity in
13 the arrangement and selection of the hexagons to qualify for copyright protection. For this reason,
14 the Court dismisses the copyright infringement claims based on the ten 2D images.
15 Finally, Plaintiff asserts additional copyright infringement claims based on the alleged
16 copying of other livestream videos. (See FAC ¶¶ 26-32.) Plaintiff registered these livestreams
17 with the U.S. Copyright Office. (See id. ¶¶ 27-28, 30, 32.) Although registration constitutes
18 “prima facie evidence of the validity of the copyright,” the presumption of validity may be
19 overcome by some evidence or proof to dispute or deny the plaintiff’s prima facie case of
20 infringement. Lamps Plus, Inc. v. Seattle Lighting Fixture Co., 345 F.3d 1140, 1145 (9th Cir.
21 2003) (citation omitted); see also Neitzke, 490 U.S. at 327 (“[Section 1915] accords judges…the
22 unusual power to pierce the veil of the complaint’s factual allegations and dismiss those claims
23 whose factual contentions are clearly baseless.”).
24 Here, the Court has sufficient evidence to dispute the presumption of validity afforded by
25 registration. In the Related Case, the record showed that Plaintiff did not disclose the true nature
26 and circumstances of the April 10, 2021 livestream video to the U.S. Copyright Office in his
27 registration application. (See Related Case, Dkt. Nos. 138, 157.) Thus, although Plaintiff
1 presumption of validity, and upon examination of the allegations in the complaint, determined the
2 April 10, 2021 was not copyrightable. (Id., Dkt. No. 157.) The Court finds that Plaintiff’s proven
3 lack of candor in his prior application overcomes the presumption of validity afforded by
4 registration of the other livestream videos.
5 Without the presumption of validity, Plaintiff’s allegations of ownership regarding the
6 additional livestreams are insufficient. Plaintiff does not allege facts that permit the Court to
7 assess whether the content is eligible for copyright protection. He does not describe the material
8 or address how it meets any of the criteria for copyright protection, such as creativity or
9 originality. Moreover, his allegations of copying are vague and conclusory. Accordingly,
10 Plaintiff fails to allege a viable infringement claim as to the remaining livestream videos.
11 Although the Court “should freely give leave [to amend] when justice so requires[,]” it is
12 within the court’s discretion to deny such leave to amend when there has been “undue delay, bad
13 faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
14 amendments previously allowed, undue prejudice for the opposing party by virtue of allowance of
15 the amendment, futility of amendment, etc.” Forman v. Davis, 371 U.S. 178, 182 (1962).
16 Here, the Court finds several factors support dismissal without leave to amend. Plaintiff
17 has already been afforded multiple bites at the apple. Plaintiff pursued similar and overlapping
18 infringement claims in the Related Case, which has now been dismissed with prejudice.
19 Additionally, Plaintiff already amended the complaint in this action once and sought leave to file a
20 second amended complaint. 1 Neither the amended complaint nor the proposed second amended
21 complaint contain additional facts that save Plaintiff’s deficient claims or suggest that such facts
22 exist. Indeed, much of the alleged infringement is plainly fair use criticism as Plaintiff himself
23 concedes in the complaint. Thus, amendment would be futile.
24 Finally, Plaintiff’s attempt to manufacture and pursue ultimately meritless copyright
25 infringement claims in an effort to silence online criticism smacks of bad faith and abuse of the
26 Court system. Plaintiff’s bad faith and his history of filing frivolous lawsuits further justifies
27
1 dismissal without leave to amend.” For these reasons, the dismissal is WITHOUT LEAVE TO
2 || AMEND.
3 Plaintiff is warned that if he persists in filing frivolous or meritless lawsuits, the Court may
4 || impose sanctions, bar from him from filing further actions without prior approval, and/or deem
5 || him a vexatious litigant.
6 CONCLUSION
7 The complaint is DISMISSED WITHOUT LEAVE TO AMEND. The Clerk shall
8 || terminate any pending motions as moot and close the file.
9 IT IS SO ORDERED.
10 || Dated: July 11, 2022 / | ) :
11 \/ Ls LY x
JEFFREY §. WHATE
4 12 United lated D&trict Judge
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23 || ? See, e.g., Stebbins v. Google, Inc., No. 11-CV-03876-LHK, 2011 U.S. Dist. LEXIS 125701
(N.D. Cal. Oct. 27, 2011) (dismissing sua sponte as “frivolous” and “clearly baseless”); Stebbins
24 || v. Stebbins, 575 F. App’x 705, 705 (8th Cir. 2014) (noting it is “undisputed that Stebbins has
proceeded in forma pauperis on at least sixteen complaints [as of 2014] that proved meritless, and
25 has filed numerous frivolous motions”); Stebbins v. Bradford, No. 3:12-CV-03131, 2013 U.S.
Dist. LEXIS 94179 (W.D. Ark. July 5, 2013) (dismissing complaint as frivolous); Stebbins v.
26 || Hixson, No. 3:18-CV-03040, 2018 U.S. Dist. LEXIS 79361 (W.D. Ark. May 8, 2018);
Stebbins v. Microsoft, Inc., No. C11-1362 JCC, 2012 WL 12896360, at *1 (W.D. Wash. Jan. 13,
27 2012), aff'd sub nom. Stebbins v. Microsoft Corp., 520 F. App’x 589 (9th Cir. 2013); Stebbins v.
28 Texas, No. 3:11-CV-2227-N (BK), 2011 U.S. Dist. LEXIS 146248, at *8-9 (N.D. Tex. Oct. 24,
2011).