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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
CASE NO. C-08-0019-MJJ
LAURENCE F. PULGRAM (CSB NO. 115163)
lpulgram@fenwick.com
JEDEDIAH WAKEFIELD (CSB NO. 178058)
jwakefield@fenwick.com
ALBERT L. SIEBER (CSB NO. 233482)
asieber@fenwick.com
LIWEN A. MAH (CSB NO. 239033)
lmah@fenwick.com
FENWICK & WEST LLP
555 California Street, 12th Floor
San Francisco, CA 94104
Telephone: (415) 875-2300
Facsimile: (415) 281-1350
Attorneys for Defendants
CHORDIANT SOFTWARE, INC.,
DEREK P. WITTE, STEVEN R. SPRINGSTEEL,
and specially appearing for OLIVER WILSON
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
DONGXIAO YUE,
Plaintiff,
v.
CHORDIANT SOFTWARE, INC., a
Delaware corporation; DEREK P. WITTE,
an individual; STEVEN R.
SPRINGSTEEL, an individual; and
OLIVER WILSON, an individual,
Defendants.
Case No. C-08-0019-MJJ
DEFENDANTS’ NOTICE OF MOTION
AND MOTION TO DISMISS AND STRIKE
[FED. R. CIV. P. 12(b)(1), 12(b)(6), 12(f),
17(a)]
Date: Tuesday, April 1, 2008
Time: 9:30 A.M.
Dept: 11, 19th Floor
Judge: Hon. Martin J. Jenkins
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 1 of 32
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TABLE OF CONTENTS
Page
MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-i- CASE NO. C-08-0019-MJJ
NOTICE OF MOTION AND MOTION ........................................................................................ 1
MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1
INTRODUCTION .......................................................................................................................... 1
SUMMARY OF ISSUES PRESENTED........................................................................................ 3
ALLEGATIONS OF THE COMPLAINT...................................................................................... 3
A. Netbula LLC and the Copyrights in Suit................................................................. 3
B. Allegations of the Complaint as to Individual Defendants ..................................... 4
C. The Allegations Regarding Mr. Witte..................................................................... 5
D. The Allegations Regarding Mr. Springsteel............................................................ 7
E. Previous Cases by Dr. Yue and Netbula Targeting Defendant Corporations’
Individual Employees.............................................................................................. 7
ARGUMENT .................................................................................................................................. 8
I. DR. YUE’S LACKS STANDING TO ASSERT AS A PRO SE LITIGANT
CLAIMS THAT BELONGED TO HIS COMPANY AND TO ASSERT CLAIMS
IN COPYRIGHTS UNREGISTERED AT THE COMMENCEMENT OF THIS
ACTION.............................................................................................................................. 9
A. Courts Routinely Refuse to Recognize Assignments That Would Otherwise
Permit Claims Originally Belonging to a Company to Be Brought by an
Individual ................................................................................................................ 9
B. Under The Governing Standards, Plaintiff’s Purported Assignment of
Claims in Netbula LLC’s Copyright Registration Should Be Disregarded .......... 12
C. The Copyright Dr. Yue Claims as an Individual Has No Valid Registration,
So Dr. Yue Has No Standing to Sue on It, Either. ................................................ 16
II. COPYRIGHT CLAIMS AGAINST DEREK P. WITTE AND STEVEN R.
SPRINGSTEEL FAIL AS A MATTER OF LAW........................................................... 18
A. A Pleading Alleging Copyright Infringement May Not Rely on Legal
Conclusions And Must State Facts Showing How a Defendant Infringed ........... 19
B. Dr. Yue Fails to State a Cause of Action Against Mr. Springsteel for Either
Direct, Contributory, or Vicarious Copyright Infringement ................................. 22
C. Dr. Yue Fails to State a Cause of Action Against Mr. Witte for Either
Direct, Contributory, or Vicarious Copyright Infringement ................................. 23
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 2 of 32
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TABLE OF CONTENTS
(continued)
Page
MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-ii- CASE NO. C-08-0019-MJJ
III. THE COURT SHOULD STRIKE PLAINTIFF’S PRAYER FOR ATTORNEYS’
FEES AND STATUTORY DAMAGES .......................................................................... 24
CONCLUSION............................................................................................................................. 25
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 3 of 32
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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-iii- CASE NO. C-08-0019-MJJ
CASES
Balistreri v. Pacifica Police Dep’t.,
901 F.2d 696 (9th Cir. 1988)..................................................................................................... 9
Bell Atl. Corp. v. Twombly,
127 S. Ct. 1955 (2007) .............................................................................................. 8, 9, 19, 22
Bell v. Carlsen Motor Cars, Inc.,
Case No. 06-CIV-2974-LBS, 2007 U.S. Dist. LEXIS 75623
(S.D.N.Y. Oct. 10, 2007) ........................................................................................................ 12
Bell v. South Bay European Corp.,
486 F. Supp. 2d 257 (S.D.N.Y. 2007)..................................................................................... 12
Berry v. Penguin Group, Inc.,
448 F. Supp. 2d 1202 (W.D. Wash. 2006).................................................................. 16, 17, 18
Brought to Life Music, Inc. v. MCA Records, Inc.,
2003 U.S. Dist. LEXIS 1967 (S.D.N.Y. 2003) ................................................................. 20, 22
Bureerong v. Uvawas,
922 F. Supp. 1450 (C.D. Cal. 1996)........................................................................................ 24
Carell v. Shubert Org.,
104 F. Supp. 2d 236 (S.D.N.Y. 2000)................................................................... 20, 21, 22, 23
Caterpillar, Inc. v. Williams,
482 U.S. 386 (1987) ................................................................................................................ 18
Chang v. McKesson HBOC, Inc.,
2007 U.S. Dist. LEXIS 95088 (N.D. Cal. Dec. 17, 2007) ........................................................ 8
Cinema Concepts Theatre Service Co. v. Filmack Studios,
No. 89 C 0024, 1989 U.S. Dist. LEXIS 5640,
(N.D. Ill. May 15, 1989) ......................................................................................................... 21
CNN, L.P. v. GoSMS.com, Inc.,
2000 U.S. Dist. LEXIS 16156 (S.D.N.Y. 2000) ......................................................... 21, 22, 23
Cognotec Servs. v. Morgan Guar. Trust Co.,
862 F. Supp. 45 (S.D.N.Y. 1994)............................................................................................ 25
ConnectU LLC v. Zuckerberg,
482 F. Supp. 2d 3 (D. Mass. 2007) ......................................................................................... 18
Corbis Corp. v. Amazon.com, Inc.,
351 F. Supp. 1090 (W.D. Wash. 2004)................................................................................... 16
Demetriades v. Kaufmann,
680 F. Supp. 658 (S.D.N.Y. 1988).......................................................................................... 17
Dongxiao Yue v. Storage Technology Corporation,
Sun Microsystems, Inc., et al.,
Case Number C07-05850-MJJ (the “STK II” action) ...................................................... passim
Estelle v. Gamble,
429 U.S. 97 (1976) .................................................................................................................. 11
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 4 of 32
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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-iv- CASE NO. C-08-0019-MJJ
Galiano v. Harrah’s Operating Co.,
No. 00-0071, 2004 U.S. Dist. LEXIS 8265
(E.D. La. May 10, 2004) ......................................................................................................... 21
Goes Litho. Co. v. Banta Corp.,
26 F. Supp. 2d 1042 (N.D. Ill. 1998) ...................................................................................... 21
Google, Inc. v. Affinity Engines, Inc.,
No. C-05-0598, 2005 U.S. Dist. LEXIS 37369
(N.D. Cal. Aug. 12, 2005)....................................................................................................... 25
Gully v. First National Bank,
299 U.S. 109 (1936) ................................................................................................................ 18
In re Elevator Antitrust Litig.,
502 F.3d 47 (2d Cir. 2007)...................................................................................................... 19
In re Neiman,
379 B.R. 299 (Bankr. N.D. Ill. 2007)...................................................................................... 12
Jacobs v. Patent Enforcement Fund, Inc.,
230 F.3d 565 (2d Cir. 2000).................................................................................................... 12
Jones and Ultracashmere House, Ltd. v. Nordstrom, Inc.,
123 F.R.D. 435 (S.D.N.Y. 1988) ............................................................................................ 11
Jones v. Niagara Frontier Transp. Authority,
722 F.2d 20, 22 (2d Cir. 1983).............................................................................. 10, 11, 12, 15
Kelly v. L.L. Cool J,
145 F.R.D. 32 (S.D.N.Y. 1992) ........................................................................................ 19, 20
La Resolana Architects v. Clay Realtors Angel Fire,
416 F.3d 1195 (10th Cir. 2005)............................................................................................... 17
Lattanzio v. COMTA,
481 F.3d 137 (2d Cir. 2007).................................................................................................... 10
Literary Works in Electronic Databases Litigation,
509 F.3d 116 (2d Cir. 2007).................................................................................................... 17
Livnat v. Lavi,
1997 U.S. Dist. LEXIS 13633 (S.D.N.Y. 1997) ..................................................................... 23
Loree Rodkin Mgmt. Corp. v. Ross-Simons, Inc.,
315 F. Supp. 2d 1053 (C.D. Cal. 2004) .................................................................................. 17
Lutin v. New Jersey Steel Corp.,
Case No. 95-CIV-4965, 1996 U.S. Dist. LEXIS 16340
(S.D.N.Y. Nov. 1, 1996) ................................................................................................... 11, 13
Marvullo v. Gruner & Jahr,
105 F. Supp. 2d 225 (E.D.N.Y. 2000) .................................................................. 19, 20, 23, 24
Mercu-Ray Indus., Inc. v. Bristol-Myers, Co.,
392 F. Supp. 16 (S.D.N.Y. 1974),
aff’d, 508 F.2d 837 (2d Cir.) ................................................................................................... 11
Miller v. Cont’l Airlines, Inc.,
260 F. Supp. 2d 931 (N.D. Cal. 2003) ...................................................................................... 9
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 5 of 32
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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-v- CASE NO. C-08-0019-MJJ
Nat’l Independent Theatre Exhibitors, Inc. v. Buena Vista Distribution Co.,
748 F.2d 602 (11th Cir. 1984)................................................................................................. 12
Netbula, LLC v. BindView Development Corporation et al.,
Case Number C06-00711-MJJ......................................................................................... passim
Netbula, LLC v. Greenwich Capital Markets, Inc.,
Case Number C06-07143.................................................................................................. 1, 2, 3
Netbula, LLC v. Storage Technology Corporation,
Sun Microsystems, Inc., et al.,
Case Number C06-07391-MJJ (the “STK I” action)........................................................ passim
Nike, Inc. v. Comercial Iberica de Exclusivas Deportivas, S.A.,
20 F.3d 987 (9th Cir. 1994)..................................................................................................... 14
Palazzo v. Gulf Oil Corp.,
764 F.2d 1381 (11th Cir. 1985)............................................................................................... 10
Parfums Givenchy v. C & C Beauty Sales,
832 F. Supp. 1378 (C.D. Cal. 1993)........................................................................................ 24
Perfect 10, Inc. v. Visa Int'l Serv. Ass’n,
494 F.3d 788 (9th Cir. 2007)......................................................................................... 9, 22, 23
Pridgett v. Andresen,
113 F.3d 391 (2d Cir. 1997).................................................................................................... 10
Robinson v. Princeton Review, Inc.,
1996 WL 663880 (S.D.N.Y. 1996) ......................................................................................... 17
Rowland v. Cal. Men’s Colony,
506 U.S. 194 (1993) ................................................................................................................ 10
Ryan v. Carl Corp.,
1998 U.S. Dist. LEXIS 9012 (N.D. Cal. 1998)....................................................................... 17
Sallen v. Corinthians Licenciamentos LTDA,
273 F.3d 14 (1st Cir. 2001) ..................................................................................................... 18
Sanyo Laser Prods., Inc. v. Royal Ins. Co. of Am.,
No. 1:03-CV-1151, 2003 U.S. Dist. LEXIS 20129
(S.D. Ind. Nov. 7, 2003)............................................................................................................ 9
Schueneman v. 1st Credit of Am., LLC,
Case No. 05-04505-MHP, 2007 U.S. Dist. LEXIS 48981
(N.D. Cal. July 6, 2007) .......................................................................................................... 10
SmileCare Dental Group v. Delta Dental Plan of Cal., Inc.,
88 F.3d 780 (9th Cir. 1996)....................................................................................................... 8
Transphase Sys. v. Southern California Edison,
839 F. Supp. 711 (C.D. Cal. 1993).......................................................................................... 19
United States v. High Country Broad. Co.,
3 F.3d 1244 (9th Cir. 1993)............................................................................................... 10, 12
Wiesbuch v. County of Los Angeles,
119 F.3d 778 (9th Cir. 1997)..................................................................................................... 9
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 6 of 32
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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-vi- CASE NO. C-08-0019-MJJ
STATUTES
17 U.S.C. § 410(a) .................................................................................................................. 16, 17
17 U.S.C. § 410(b) ........................................................................................................................ 17
17 U.S.C. § 410(d) ........................................................................................................................ 17
17 U.S.C. § 411....................................................................................................................... 16, 17
17 U.S.C. § 411(a) ........................................................................................................................ 16
17 U.S.C. § 412................................................................................................................... 3, 24, 25
28 U.S.C. § 1359........................................................................................................................... 14
28 U.S.C. § 1654........................................................................................................................... 10
RULES
Fed. R. Civ. P. 12 .......................................................................................................................... 24
Fed. R. Civ. P. 12(b)(1)................................................................................................................... 1
Fed. R. Civ. P. 12(b)(6)......................................................................................................... 1, 8, 19
Fed. R. Civ. P. 12(f) ........................................................................................................................ 1
Fed. R. Civ. P. 17(a)........................................................................................................................ 1
Fed. R. Civ. P. 24 .......................................................................................................................... 12
Fed. R. Civ. P. 25 .......................................................................................................................... 12
OTHER AUTHORITIES
William F. Patry, Patry on Copyright § 17-213 (2007)................................................................ 17
William F. Patry, Patry on Copyright § 17-224 to 17-225 (2007) ............................................... 17
William F. Patry, Patry on Copyright § 17-226 (2007)................................................................ 17
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 7 of 32
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MPA ISO DEFENDANTS’ RULE 12(b)(6)
AND 12(f) MOTIONS TO DISMISS AND TO
STRIKE
-1- CASE NO. C-08-0019-MJJ
NOTICE OF MOTION AND MOTION
TO PLAINTIFF DONGXIAO YUE, appearing pro se:
NOTICE IS HEREBY GIVEN that on April 1, 2008 at 9:30 A.M., or as soon thereafter as
this matter may be heard, in the United States District Court for the Northern District of
California (San Francisco Division), located at 450 Golden Gate Avenue, San Francisco,
California, in the courtroom of The Honorable Martin J. Jenkins, Defendants Chordiant Software,
Inc. (“Chordiant”), Derek P. Witte, Steven R. Springsteel, and Oliver Wilson (collectively
“Defendants”) will and hereby do move the Court,
(a) pursuant to Federal Rule of Civil Procedure 12(b)(1), 12(b)(6) and/or 17(a), to dismiss
Plaintiff’s Complaint for lack of subject matter jurisdiction and failure to state a claim
upon which relief can be granted, and
(b) pursuant to Federal Rule of Civil Procedure 12(f), to strike Plaintiff’s prayers for
attorneys’ fees and statutory damages (and, if it does not dismiss the Complaint entirely,
to strike Plaintiff’s claims based on Plaintiff’s unregistered copyright and the copyright
assigned by his LLC), on the grounds that such claims are untenable as a matter of law.
This motion is based upon this Notice, Motion and Memorandum of Points and Authorities, the
accompanying Request for Judicial Notice, Declaration of Derek P. Witte, pleadings and other
papers on file in this action, and other oral or written submissions as the Court may entertain.
MEMORANDUM OF POINTS AND AUTHORITIES
INTRODUCTION
This action is the fifth brought since 2006 in this District by Plaintiff Dongxiao Yue or his
company, Netbula, LLC (“Netbula”) against Netbula’s customers. Each demanded tens of
millions of dollars in damages for alleged copyright infringement.1 Each dressed up simple
royalty disputes with Netbula’s licensees as claims that the customers owe massive copyright
1 Besides the present case, the other cases, all of which have been related and handled by Judge
Jenkins, are Netbula, LLC v. BindView Development Corporation, et al., Case Number
C06-00711-MJJ (the “BindView” action); Netbula, LLC v. Greenwich Capital Markets, Inc., Case
Number C06-07143; Netbula, LLC v. Storage Technology Corporation, Sun Microsystems, Inc.,
et al., Case Number C06-07391-MJJ (the “STK I” action); and Dongxiao Yue v. Storage
Technology Corporation, Sun Microsystems, Inc., et al., Case Number C07-05850-MJJ (the
“STK II” action). In BindView, Dr. Yue alleged damages “likely to exceed $10,000,000.” In
STK I, he claimed damages “likely to exceed $10,000,000,” and in STK II, he claimed damages
“likely to exceed $20,000,000.” Defendants have requested judicial notice of the records in these
cases.
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 8 of 32
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-2- CASE NO. C-08-0019-MJJ
damages for allegedly distributing more Netbula components than they have paid for. So far, the
Court has dismissed these claims on each occasion the merits have been addressed.
Here, the Court need not reach the merits because Dr. Yue has no standing to bring the
present action in his own name. See Part I, infra. After Netbula LLC proceeded as plaintiff in the
BindView, Greenwich, and STK I actions, Dr. Yue has more recently attempted to bypass the
strictures that a business entity can only appear through counsel. In both the STK II action and
the present case, Dr. Yue filed complaints with himself in the role of plaintiff in propria persona,
omitting Netbula as a party.2 In an attempt to fabricate standing to sue pro se, Dr. Yue purported
to assign all of Netbula’s copyright registrations in its PowerRPC product—as well as all claims
of infringement thereon—to himself on September 26, 2007. See Compl. ¶ 13 & Exh. B;
STK II FAC ¶ 3 & Exh. C. Courts have repeatedly invalidated this stratagem to prevent
individuals from abusing the corporate form and pursuing corporate claims without counsel.
Dr. Yue also purports to sue here for infringement of a copyright that has not yet been
registered—omitting the federal jurisdictional prerequisite for filing a copyright lawsuit. Because
Dr. Yue is not a proper plaintiff for any of the copyrights at issue in this matter, the Court should
dismiss his Complaint as to all Defendants due to failure to state a claim and lack of federal
jurisdiction.
The Court should also dismiss his Complaint for failing to state a claim for personal
liability against Mr. Witte and Mr. Springsteel, Chordiant’s general counsel and CEO
respectively. See Part II, infra. This action perpetuates Plaintiff’s model of naming as individual
defendants the CEOs of Netbula’s licensees, based on nothing other than their being on the
receiving end of letters that Dr. Yue transmits. Indeed, Mr. Springsteel is the third CEO of a
publicly traded software company that Dr. Yue has joined on this basis. See Part II.B, infra.
Similarly, Dr. Yue has, in his last two suits, named as defendants the in-house lawyers of
Netbula’s licensees, based merely on their misfortune of having become engaged in negotiations
2 On January 28, 2008, Dr. Yue decided to employ as counsel for the STK II case the same lawyer
he had engaged in STK I. See STK II Docket Nos. 19 & 38. However, his counsel then sought to
withdraw from both cases on February 21. See STK I Docket No. 144; STK II Docket No. 47.
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 9 of 32
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Dr. Yue commenced about royalties allegedly due. See Part II.C, infra. The claims against these
individuals have no factual basis and serve no purpose other than to harass. Mere status as a
corporate officer and shareholder, or mere knowledge of the existence of a royalty inquiry,
provides no basis for asserting millions of dollars in personal liability. See Compl. ¶ 51 (seeking
damages “likely to exceed $20,000,000” against all Defendants).
Finally, Dr. Yue has continued to seek statutory damages and attorney fees, despite the
fact that 17 U.S.C. § 412 expressly precludes any such award where, as here, the alleged use
commenced before the copyright registration date. Thus the Court should strike his claims for
statutory damages and attorney fees. See Part III, infra.
SUMMARY OF ISSUES PRESENTED
1. Whether Dr. Yue lacks standing to sue on behalf of Netbula, LLC.
2. Whether Dr. Yue lacks standing to sue over a copyright that has not been
registered prior to suit.
3. Whether all claims should be dismissed as to Mr. Witte and Mr. Springsteel, where
the Complaint fails to assert facts supporting a finding of personal liability.
4. Whether the Court should strike Dr. Yue’s prayers for statutory damages and
statutory attorneys’ fees, where that recovery is barred by 17 U.S.C. § 412.
ALLEGATIONS OF THE COMPLAINT
A. Netbula LLC and the Copyrights in Suit.
Netbula markets software components based on open source RPC (Remote Procedure
Call) technology. The components are intended for incorporation into other commercial software
applications. Compl. ¶ 10. Although the Complaint reads as if Chordiant never had a license to
use Netbula’s components, it acknowledges that Netbula sold a license to Chordiant International,
Ltd. in 2004 to distribute 1000 runtime copies. Compl. ¶¶ 19, 55, 64.
Notwithstanding the license, Dr. Yue contends here (as in the STK I, STK II, BindView,
and Greenwich cases) that Chordiant’s distribution of its Marketing Director software infringed
copyrights, of which he identifies two in the Complaint. One is a copyright in PowerRPC
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registered to Netbula in 2004 as both its “author” and “owner” (the “2k4 copyright”). Compl.
Exh. A. Dr. Yue claims that Netbula, by Dr. Yue’s signature, assigned this copyright to Dr. Yue
on September 27, 2007. Compl. Exh. C. The other copyright, which has no registration, is
allegedly for “earlier works created before July 24, 1996,” comprising parts of the PowerRPC
software that Dr. Yue claims he wrote but never assigned to Netbula. Compl. ¶ 12.
Although he sues here (and filed his STK II action) in his individual capacity, the Court
has recognized that Netbula and Dr. Yue are really “one and the same.” See STK I Docket
No. 139 [November 20, 2007 Transcript], at 10:25.3 Dr. Yue has alternatively identified himself
as Netbula’s founder, its President, or its Chief Marketing and Sales Officer. See, e.g., BindView
Docket No. 257 [Joint Statement of Undisputed Facts ¶ 1]; STK II FAC ¶ 14 (“Plaintiff founded
Netbula, LLC . . . .”); Compl. ¶ 13 & Exh. B (Copyright Assignment to Dr. Yue signed by
Dr. Yue as President of Netbula); STK I Docket No. 3 [Don Yue’s Declaration in Support of
Plaintiff’s Application for Temporary Restraining Order and Motion for Preliminary Injunction
and Impoundment; identified as “Chief Marketing and Sales Officer”]. Dr. Yue is the only
owner, officer and employee of Netbula, and has been personally involved in all aspects of his or
Netbula’s copyright litigation. See, e.g., STK II Docket No. 43 [Opposition to Motion to Dismiss
at 5:11-12 (“Netbula is wholly-owned by Plaintiff.”)]; BindView Docket No. 308 [Declaration of
Third Party Dongxiao Yue in Support of Motion to Intervene and Enforce Protective Order ¶ 10].
B. Allegations of the Complaint as to Individual Defendants.
The Complaint includes seven separate “counts” of copyright infringement, each
purportedly “Against All Defendants” without distinction. Compl. ¶¶ 54-80. In addition to
3 At a November 20, 2007 hearing, Judge Jenkins denied Dr. Yue’s motion to substitute himself
as plaintiff for his corporation in the STK I action. STK I Docket No. 111. After Netbula’s
counsel acknowledged that one purpose of Dr. Yue’s motion was to allow him to proceed pro se,
Judge Jenkins noted that the purported September 26, 2007 “assignment does nothing to advance
the conduct of this litigation since they’re [Dr. Yue and Netbula] one in the same.” STK I Docket
No. 139, at 12:5-7, 12:13-20. The Court further noted:
He wants to represent himself in this matter, and that’s clear, and the record is
abundantly clear. The inferences are extremely strong that the assignment was
made in view toward being able to appear before the court and assert now the
assigned interests in the copyright that is the subject of this litigation.
See id. at 16:21-17:1.
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Chordiant, its CEO Mr. Springsteel, and its General Counsel Mr. Witte, Dr. Yue has sued Oliver
Wilson, whom he identifies as “program manager for the Marketing Director Project Suite,” and
who also had the misfortune of a communication with Dr. Yue. See Declaration of Derek P.
Witte (“Witte Decl.”) ¶ 2, Exh. 2.4 The Complaint lumps all Defendants together as being
culpable for direct, contributory, and vicarious liability on each of the seven counts. Compl.
¶¶ 41-53. Yet he offers no factual basis tying Mr. Witte or Mr. Springsteel to the purported
liability.
“Count I” of the Complaint purports to allege that the license purchased by Chordiant
granted one user the right to employ Netbula’s software development kit (“SDK”), but that “on
information and belief, multiple employees of CSI, including Oliver Wilson, made numerous
copies of the SDK onto many computers.” There is no explanation of how Mr. Witte, an
attorney, or Mr. Springsteel, as CEO, has liability for purported copies of an SDK used in
software development. Counts II and IV allege that because allegedly unlicensed copies of the
SDK were used, Marketing Director constitutes an infringing derivative work. Again, there is no
explanation of Chordiant’s attorney or CEO’s involvement in creating that work, or how they
could have liability. Count III claims that development of a version of Marketing Director for the
Vista operating system was infringing—without any link to the attorney or CEO. And Counts V,
VI and VII assert that distribution of client and server runtime copies “without purchasing
licenses” or with site licenses (that is, without counting copies by customers) was infringing.
C. The Allegations Regarding Mr. Witte.
Dr. Yue observes that Mr. Witte is “the Vice President, General Counsel, and Secretary”
of Chordiant. Id. ¶ 8. Beyond that allegation, the Complaint’s allegations against Mr. Witte arise
solely out of Dr. Yue’s communications with him about Chordiant’s use of Netbula’s software
between August 2007 and January 2008. Id. ¶¶ 25-28. Because the Complaint quotes those
communications but omits to attach the actual correspondence, the e-mail strings are attached in
their entirety to the Declaration of Derek P. Witte as Exhibits 1 and 2. See Request for Judicial
4 Concurrently with this motion, Mr. Wilson is moving to dismiss for lack of personal
jurisdiction.
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Notice (compiling authorities for consideration of such materials).
Specifically, on August 27, 2007, Dr. Yue requested a “license usage report” from
Mr. Wilson. Although Dr. Yue had helped Wilson with a product for Windows Vista operating
system in April, 2007, Yue commented in August that “also, the original license Chordiant
purchased does not cover Windows Vista.” See Witte Decl. ¶ 2, Exh. 1. After having this e-mail
forwarded to him, Mr. Witte responded to Dr. Yue that he was collecting data and requested
clarification about the basis for Dr. Yue’s demands for information, including clarification of the
terms of the license Dr. Yue was relying on for his Vista argument. Dr. Yue responded that “the
license information should be reflected on the purchase order Chordiant made and the software
delivered to Chordiant, which should have a click-through button on standard terms.” Id.
Mr. Witte responded that no such click-through existed on the software Chordiant purchased from
Netbula. He also questioned the basis for Netbula’s onerous requests for information, reiterating
that he was collecting data, although given the multi-year period at issue, that process was time
consuming. Id., Exh. 2. A back and forth ensued about Chordiant’s obligations under its license,
with Mr. Witte asserting that Dr. Yue was asking for shifting information beyond any contractual
obligation, and Dr. Yue sending a copy of the Chordiant purchase order. Id., Exh. 3; Compl. ¶ 19
(detailing terms of purchase order).
Ultimately, on December 21, 2007, Mr. Witte provided the license usage report, stating
Chordiant’s count of 953 uses (less than the 1,000 licensed). Witte Decl., Exh. 2. Mr. Witte also
stated that Chordiant was stopping use of Netbula’s software. Id.
Dr. Yue responded angrily that he had not received the information requested, and
announced, “We have determined that Chordiant has infringed our copyright. There is no point
for you to conceal the infringement.” Id. When Mr. Witte pointed out that Chordiant had
honored its obligations, and that Dr. Yue had never mentioned copyright infringement before,
Dr. Yue responded with all sorts of new claims. On January 2, 2008, the day he filed this action,
Dr. Yue asserted that his request for “license usage reports” “put Chordiant Software Inc. (‘CSI’)
on notice of its infringing acts back in August, 2007,” that he “never heard of CSI until quite
recently” and that Netbula’s license was “with another company in UK.” Id. January 2, 2008
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was the first time that Dr. Yue asserted that Chordiant had no license. Id. Dr. Yue further
explained that the actual purpose of his months of requests about “license usage” information
“was to determine the extent of the infringement.” Id.
The only allegations in all seven counts against Mr. Witte are based on his having
participated in the e-mail exchange that Dr. Yue initiated:
Instead of immediately stopping the infringement upon Plaintiff’s initial notice,
Mr. Witte . . . engaged in activities to conceal, continue and further the
infringement by CSI and its customers. On information and belief, Mr. Witte
supported, encouraged and guided CSI’s continuing infringement, while evading
Plaintiff’s inquiries on software usage.”
Compl. ¶ 39. But the Complaint actually contains no allegation of any “initial notice” of
infringement nor any request to cease use. The Complaint reflects only a request for “license
usage” information, followed by Dr. Yue’s repudiation in January 2008 of that license after
Mr. Witte provided the information. Witte Decl., Exh. 2.
D. The Allegations Regarding Mr. Springsteel.
The Complaint observes that Mr. Springsteel “is the Chairman, President and CEO of
CSI,” Compl. ¶ 8, but mentions nothing about his involvement in the alleged infringement.
Rather, it alleges merely that, in October 2007, Dr. Yue had sent a single letter addressed to
Mr. Springsteel “requesting the software usage information.” Id. ¶ 27. The Complaint then seeks
to hold Mr. Springsteel personally liable based on the conclusion that “Mr. Springsteel was
informed about CSI’s infringing actions, but did not stop the infringement.” Id. ¶ 40.
E. Previous Cases by Dr. Yue and Netbula Targeting Defendant Corporations’
Individual Employees.
Dr. Yue has carried over from his other lawsuits his pattern of suing individual employees
without cause. On December 10, 2007, Dr. Yue filed a First Amended Complaint in the STK II
action, adding as defendants (in addition to StorageTek and Sun) four current and/or former
StorageTek/Sun employees and officers. STK II Docket No. 9 [STK II FAC]. Dr. Yue took aim
at Sun’s CEO and President, Jonathan Schwartz, and Sun’s Assistant General Counsel, Julie
DeCecco. Dr. Yue has replicated in this case the same boilerplate allegations of direct,
contributory and vicarious liability from STK II. Compare Compl. ¶ 44 & STK II FAC ¶ 73;
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Compl. ¶ 8 & STK II FAC ¶ 11; Compl. ¶ 43 & STK II FAC ¶ 72.
Similarly, on September 1, 2006, Netbula amended its complaint in the BindView action,
accusing the defendant’s CEO, Eric J. Pulaski, of copyright infringement using the same
boilerplate, conclusory allegations. See, BindView Docket No. 38 ¶ 60. The Court ultimately
granted Mr. Pulaski’s summary judgment motion on all claims. See BindView Docket No. 288.
In each of these prior complaints, as here, Dr. Yue or Netbula targeted whatever
employees had the misfortune to receive his communications purportedly directed at resolving
how much royalty might be due under Netbula’s license agreements. Thus, as here, in STK II the
only sin of Sun’s in-house counsel was attempting to work out a royalty dispute. See STK II FAC
¶ 60. Similarly, Netbula sued Mr. Pulaski, BindView’s CEO, on the basis of three letters sent by
Dr. Yue to Mr. Pulaski and a single telephone call initiated by Mr. Pulaski attempting to resolve
the royalty dispute. BindView FAC ¶¶ 28, 30, 35-38. Dr. Yue’s decision to name Sun’s CEO
Schwartz as a defendant rested on even less: Netbula (again through Dr. Yue) sent Mr. Schwartz
two e-mails eight months after the use of Netbula code had already ceased. See STK II FAC ¶ 61.
The allegations in STK II mirrored those against Mr. Witte and Mr. Springsteel:
[o]n information and belief, Julie DeCecco and Jonathan Schwartz, instead of
stopping the infringement, employed delay tactics to continue the infringement.
Id. ¶ 62 (emphases added). On January 18, 2008, Judge Jenkins granted Sun’s motion for
summary judgment as to all copyright claims. See STK I Docket No. 138.
ARGUMENT
Dismissal is appropriate under Federal Rule of Civil Procedure Rule 12(b)(6) where a
plaintiff has failed to assert a cognizable legal theory or has failed to allege sufficient facts under
a cognizable legal theory. See, e.g., SmileCare Dental Group v. Delta Dental Plan of Cal., Inc.,
88 F.3d 780, 782 (9th Cir. 1996); Chang v. McKesson HBOC, Inc., 2007 U.S. Dist. LEXIS
95088, at *4-*5 (N.D. Cal. Dec. 17, 2007). As the Supreme Court recently explained, to survive
a motion to dismiss, a plaintiff is obliged to provide more than “labels and conclusions, and a
formulaic recitation of the elements of a cause of action.” Bell Atl. Corp. v. Twombly, 127 S. Ct.
1955, 1964-65 (2007). To plead sufficient facts a plaintiff must suggest that the right to relief is
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more than conceivable, but also plausible on its face. Id. at 1974. “Although the federal
procedural standards for notice pleading . . . are liberal, they are not so liberal as to allow purely
conclusory statements to suffice to state a claim that can survive a motion to dismiss.” Miller v.
Cont’l Airlines, Inc., 260 F. Supp. 2d 931, 935 (N.D. Cal. 2003). A motion to dismiss should be
granted where there is either lack of a cognizable legal theory or absence of sufficient facts
alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t., 901 F.2d 696, 699
(9th Cir. 1988); Perfect 10, Inc. v. Visa Int'l Serv. Ass’n, 494 F.3d 788, 794 (9th Cir. 2007) (“the
court need not accept conclusory allegations of law or unwarranted inferences, and dismissal is
required if the facts are insufficient to support a cognizable claim”).
Plaintiffs can plead themselves out of court by pleading particulars that show they have no
legal claim, and are not saved by having pleaded legal conclusions where facts pleaded are
inconsistent with them. Wiesbuch v. County of Los Angeles, 119 F.3d 778, 783 n.1 (9th Cir.
1997)).(“If the pleadings establish facts compelling a decision one way, that is as good as if
depositions and other expensively obtained evidence on summary judgment establishes the
identical facts.”); see also Sanyo Laser Prods., Inc. v. Royal Ins. Co. of Am., No. 1:03-CV-1151,
2003 U.S. Dist. LEXIS 20129, at *4 (S.D. Ind. Nov. 7, 2003) (“[A] Court need not ignore facts
set out in the complaint that undermine Plaintiff’s claims.”).
I. DR. YUE’S LACKS STANDING TO ASSERT AS A PRO SE LITIGANT CLAIMS
THAT BELONGED TO HIS COMPANY AND TO ASSERT CLAIMS IN
COPYRIGHTS UNREGISTERED AT THE COMMENCEMENT OF THIS
ACTION.
Long-standing and settled law prevents Dr. Yue from doing what he is attempting here—
to bring a pro se lawsuit based on claims that he assigned to himself from his LLC. These claims
must be brought by Netbula and by a licensed attorney. Furthermore, this Court lacks jurisdiction
over the only claim that could possibly be brought by Dr. Yue individually—the alleged
infringement of his own unregistered copyright. Accordingly, this action should be dismissed.
A. Courts Routinely Refuse to Recognize Assignments That Would Otherwise
Permit Claims Originally Belonging to a Company to Be Brought by an
Individual.
It is fundamental that “a layperson may not represent a separate legal entity” in the federal
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courts. See Lattanzio v. COMTA, 481 F.3d 137, 139 (2d Cir. 2007); see also Rowland v. Cal.
Men’s Colony, 506 U.S. 194, 202 (1993) (“[T]he lower courts have uniformly held that 28 U.S.C.
§ 1654 . . . does not allow corporations, partnerships, or associations to appear in federal court
otherwise than through a licensed attorney.”); United States v. High Country Broad. Co., 3 F.3d
1244, 1245 (9th Cir. 1993) (same). This rule applies with equal force to limited liability
companies (LLCs) as to any other legal entity. See, e.g., Lattanzio, 481 F.3d at 140 (rejecting
attempt of sole member of LLC to appear on its behalf); Schueneman v. 1st Credit of Am., LLC,
Case No. 05-04505-MHP, 2007 U.S. Dist. LEXIS 48981, at *24 (N.D. Cal. July 6, 2007) (LLC
may appear only through counsel). The rationale for this blanket rule is also well established:
[T]he conduct of litigation by a nonlawyer creates unusual burdens not only for the
party he represents but as well for his adversaries and the court. The lay litigant
frequently brings pleadings that are awkwardly drafted, motions that are
inarticulately presented, proceedings that are needlessly multiplicative. In addition
to lacking the professional skills of a lawyer, the lay litigant lacks many of the
attorney’s ethical responsibilities, e.g., to avoid litigating unfounded or vexatious
claims.
Jones v. Niagara Frontier Transp. Authority, 722 F.2d 20, 22 (2d Cir. 1983).
Of course, this prohibition would be meaningless if an entity simply could assign its
claims to an individual who could then litigate the assigned claims in his own name. For that
reason, courts have disapproved of “any circumvention of the rule by the procedural device of an
assignment of the corporation’s claims to the lay individual.” Jones, 722 F.2d at 23. As such,
courts have consistently refused to honor purported assignments of claims from a corporation to
an individual, particularly where the assignment is from a closely-held corporation to its owner.
See, e.g., id. at 21-23 (affirming conditional dismissal of complaint brought by non-attorney
individual on basis of purported assignment made by company of which he was sole stockholder;
action could be brought only by counsel on behalf of corporation); Palazzo v. Gulf Oil Corp., 764
F.2d 1381, 1382 (11th Cir. 1985) (affirming dismissal of claims originally belonging to company
but assigned to company’s president and major stockholder; “[w]e see no reason to permit any
evasion of the general rule by the simple expedient of the assignment of corporate claims to the
pro se plaintiff”); see also Pridgett v. Andresen, 113 F.3d 391, 393 (2d Cir. 1997) (“[I]t is well
established that a layperson . . . may not assert pro se a claim that has been assigned to the litigant
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by a corporation.”).
In addition to serving the interests summarized in Jones, the courts’ refusal to recognize
assignments from companies to their principals prevents parties from playing fast and loose with
the corporate form—invoking its benefits when expedient and seeking to avoid the corresponding
burdens. See, e.g., Mercu-Ray Indus., Inc. v. Bristol-Myers, Co., 392 F. Supp. 16, 20 (S.D.N.Y.
1974) (dismissing complaint brought by sole-shareholder-assignee; having “chose[n] to accept
the advantages of incorporation[, he] must now bear the burdens of that incorporation”), aff’d,
508 F.2d 837 (2d Cir.). In other words, whatever benefits an assignee perceives in proceeding
pro se—whether it is because he believes himself to be better than an attorney, or cannot locate a
lawyer willing to take his case, or because he wants to be free of the ethical restraints to which
attorneys are bound, or because he wants to invoke the special leniency sometimes offered pro se
litigants, see, e.g., Estelle v. Gamble, 429 U.S. 97, 106 (1976)—he is not entitled to them.
It also would not matter that an assignment from a company to its principal might have
been entered into without a purpose of allowing the principal to proceed pro se. In Lutin v. New
Jersey Steel Corp., Case No. 95-CIV-4965, 1996 U.S. Dist. LEXIS 16340 (S.D.N.Y. Nov. 1,
1996), for example, the court dismissed a complaint and specifically rejected the proposition that
assignments may be disregarded only upon a showing that assignment was entered into “for the
purpose of evading the rule that a corporation may not proceed pro se.” Id. at *38 (citing, inter
alia, Jones and Ultracashmere House, Ltd. v. Nordstrom, Inc., 123 F.R.D. 435 (S.D.N.Y. 1988)).
The reason is plain: the policies underlying the rule against pro se representation of claims
formerly belonging to a company are implicated regardless of the purpose underlying the
assignment. See id. at *38-*39. Permitting an individual to bring a corporation’s claims pro se
(even if that was not the purpose of the assignment) would still unnecessarily burden “his
adversaries and the court with . . . pleadings that are awkwardly drafted, motions that are
inarticulately presented, proceedings that are needlessly multiplicative . . . [and] unfounded or
vexatious claims.” Jones, 722 F.2d at 22.
In Jones, the plaintiff—the sole shareholder of a corporation—filed a pro se complaint
alleging claims on behalf of himself and his company. 722 F.2d at 20-21. After defendants
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questioned his right to bring claims on behalf of his company, plaintiff moved to amend to name
himself as plaintiff for all claims on the basis of a purported assignment from the company to
himself. Id. at 21. The Second Circuit affirmed the denial of the motion to amend and ordered
the action dismissed unless the company appeared through counsel. Id. at 21-23.5
Quite logically, the Jones rationale reaches circumstances where (as here) the purported
assignment preceded the filing of an original complaint. See, e.g., Bell v. South Bay European
Corp., 486 F. Supp. 2d 257, 258-260 & n.2 (S.D.N.Y. 2007) (conditionally dismissing complaint
brought pro se by purported assignee of claims belonging to trust; assignment dated one month
prior to commencement of lawsuit); Bell v. Carlsen Motor Cars, Inc., Case No. 06-CIV-2974-
LBS, 2007 U.S. Dist. LEXIS 75623, at *2-*3 (S.D.N.Y. Oct. 10, 2007) (conditionally dismissing
complaint brought by pro se plaintiff where assignment of claims occurred “years before the
filing of action,” because the “concern in Jones was not the timing of the assignment, but rather
the threat to court integrity from allowing a layperson to appear for a corporate entity”); In re
Neiman, 379 B.R. 299, 305-06 (Bankr. N.D. Ill. 2007) (holding that under analogous Illinois law
assignee had no right to bring adversary complaint based on claims originally belonging to the
company, even where assignment preceded filing of complaint). Courts have recognized there is
no legitimate reason to treat an assignment of corporate claims that occurs shortly before a
lawsuit is filed any differently than an assignment that occurs after a lawsuit is initiated. Under
either scenario, the “procedural device of an assignment” is ripe for abuse, allowing companies to
evade the counsel requirement, and resulting in the same harms.
B. Under The Governing Standards, Plaintiff’s Purported Assignment of Claims
in Netbula LLC’s Copyright Registration Should Be Disregarded.
Under the above authority, Plaintiff has no right to bring the copyright claims assigned to
5 The rule prohibiting individuals from asserting claims on behalf of their companies has been
applied in every conceivable context, including motions to intervene and motions to substitute
under Federal Rules of Civil Procedure 24 and 25. See, e.g., High Country, 3 F.3d at 1245
(denying motion to intervene brought by sole shareholder, even assuming that he had satisfied the
requirements of intervention as a matter of right); Jacobs v. Patent Enforcement Fund, Inc., 230
F.3d 565, 569 (2d Cir. 2000) (district court erred in permitting sole officer and director of
company to intervene and appear pro se); Nat’l Independent Theatre Exhibitors, Inc. v. Buena
Vista Distribution Co., 748 F.2d 602, 610 (11th Cir. 1984) (affirming denial of motion to
substitute to allow sole shareholder to proceed as party-defendant).
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him by his LLC on a pro se basis. The facts are clear: Plaintiff is the founder and sole owner of
Netbula. See Compl. ¶¶ 1, 11; STK II Docket No. 43 [Plaintiff’s [Dr. Yue’s] Opposition to
Motion to Dismiss at 5:11-12 (“Netbula is wholly-owned by Plaintiff [Dongxiao Yue].”)]. The
copyright registration itself lists Netbula as the sole owner and author. Compl. ¶ 2 & Exh. A.
The registration—as well as any related claims for infringement—belonged to Netbula until
Dr. Yue collusively assigned that registration (and related claims) to himself on or about
September 26, 2007. Id. ¶ 13 & Exh. B. Of course, well prior to that assignment, Netbula was
corresponding with Chordiant about its use of Netbula software—correspondence that Dr. Yue
subsequently explained was to “determine the amount of infringement.” Witte Decl. Exh. 2.
Plaintiff is not entitled, in the midst of his pursuit of Chordiant, to assign himself claims
belonging to Netbula, LLC and then bring Netbula’s claims in his own name.
Furthermore, although not required to find a purported assignment invalid, see, e.g., Lutin,
1996 U.S. Dist. LEXIS at *38-*39, the purported assignment here was, in fact, motivated at least
in part by Dr. Yue’s desire to represent himself pro se in litigation related to Netbula’s
copyrights. Netbula’s counsel in the related STK I case admitted as much. On October 1, 2007,
four days after the assignment, Netbula filed a motion seeking to substitute Dr. Yue as plaintiff
with respect to the then-pending copyright claims in that action. See STK I Docket Nos. 56-57
[Motion for Substitution of Party as to the Copyright Infringement Claim; Declaration of
Vonnah M. Brillet in Support of Motion for Substitution of Party ¶ 2 & Exh. A (attaching the
same purported assignment as attached to complaint in this action)]. At oral argument, Netbula’s
counsel acknowledged that the assignment was effected in part because Dr. Yue wanted to appear
pro se, and the Court so found in denying the motion. STK I Docket No. 139 [Transcript of
November 20, 2007 at 10:21-11:12, 16:20-17:1 (Court states that Dr. Yue “wants to represent
himself in this matter . . . . [T]he record is abundantly clear. The inferences are extremely strong
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that the assignment was made in view of being able to appear before the Court . . . .”)].6 To allow
Dr. Yue to proceed as Plaintiff in this action would sanction an assignment intended to
circumvent the rule requiring company claims to be brought through a licensed attorney.
In addition, the policy concerns underlying this rule are fully implicated in this matter.
There is no question that Dr. Yue’s personal, lay participation in this matter would create undue
burdens on both Defendants and this Court. Even a cursory review of the dockets in the five
recent cases demonstrate as much. In this matter, for example, Dr. Yue refused Chordiant’s
request for an extension of time to respond to the Complaint so that each of the Defendants
(including then-unserved defendants) could respond simultaneously and thereby relieve the Court
of the burden of dealing with multiple responses and hearings. See Docket Nos. 9-10
[Administrative Motion for Enlargement of Time to Respond to Complaint and accompanying
Declaration]. Judge Illson summarily entered Defendants’ proposed order over Dr. Yue’s
opposition. See Docket Nos. 14, 16. Similarly, Dr. Yue failed to agree that this action was
related to the four prior actions, necessitating another unnecessary administrative motion. See
STK II Docket Nos. 22-23, 26, 44.
Similarly, in STK II, Dr. Yue, proceeding pro se, unreasonably filed a motion for entry of
default judgment which contravened a prior court order. Dr. Yue’s motion was denied and led
the Court to “caution[ Plaintiff] against multiplying proceedings without a sufficient legal basis in
the future.” STK II Docket Nos. 13, 41 [Motion for Entry of Default Judgment; Order Denying
Plaintiff’s Motion for Entry of Default at 5:3-4]. In STK I, Dr. Yue filed a pro se “Motion to
Intervene and Join as Plaintiff, for Injunctive Relief, and for Copyright Impoundment,” again on
the basis of the purported assignment from Netbula, while Netbula’s motion to substitute him as a
party for the copyright claims was still pending. STK I Docket No. 68. This procedurally
6 It is hard to fathom any legitimate business purpose for this copyright transfer, which purports to
deprive Netbula of ownership its “main product” and the software that generates “the heart of
Netbula’s business revenues.” See STK I FAC ¶¶ 1, 14. Under 28 U.S.C. § 1359, the assignment
between Netbula and its owner is presumptively collusive and would be disregarded for the
purposes of invoking the diversity jurisdiction in federal court, unless the parties to the
assignment present a business reason for the assignment that is “sufficiently compelling that the
assignment would have been made absent the purpose of gaining a federal forum.” See Nike, Inc.
v. Comercial Iberica de Exclusivas Deportivas, S.A., 20 F.3d 987, 991-92 (9th Cir. 1994).
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improper motion was subsequently ordered off-calendar by the Court. STK I Docket No. 94.
The list goes on and on. Dr. Yue, pro se, not only refused to stipulate to modify the
Protective Order in the BindView case to use relevant materials in STK I, he appealed Judge
Jenkins’ order allowing such modification—only to have that appeal dismissed sua sponte by the
Ninth Circuit for lack of jurisdiction after the record was compiled. Request for Judicial Notice,
Exh. B. Dr. Yue, pro se, petitioned the Ninth Circuit for an emergency stay of the summary
judgment hearing in STK I. Id., Exh. A. After the writ was denied, he further petitioned for a
“reasoned decision”—to which the Ninth Circuit responded with an order that he not file any
other papers in that matter. Id. Dr. Yue, again pro se, has argued that Judge Jenkins is biased
against him, including complaints made to the Ninth Circuit and to Congress. STK II Docket
No. 11 [Letter Brief by Dongxiao Yue Regarding Motion for Summary Judgment and Relating
Cases]. And he has filed frivolous complaints against opposing counsel that were perfunctorily
rejected by the State Bar. STK II Docket No. 36 [Declaration of Albert L. Sieber in Support of
Motion to Dismiss ¶ 6 & Exh. E].
It is apparent that Dr. Yue is exactly the type of pro se litigant that Jones and its progeny
warned against when prohibiting the assignment of claims from a company to a lay individual.
See Jones, 722 F.2d at 23 (“The district court, based on its years of dealing with Jones, was
‘unable to find with any quantum of confidence that Jones possesses the level of legal
sophistication necessary to present this case.’”).
The only copyright registration asserted in the Complaint is the one authored and owned
by Netbula until the assignment. The copyright claims related to this registration are not
Dr. Yue’s claims to bring. Because, as next discussed, no copyright claim lies absent a valid
registration, there is no basis for any copyright claim here, and the complaint must be dismissed.7
7 In the alternative, if the Court found that Dr. Yue somehow had the right to pursue the
unregistered copyright he claims to own individually, then the claims based on the copyright
assigned by Netbula still cannot be pursued other than by Netbula through an attorney, and the
allegations relating to that registration should be stricken from Paragraph 2 of the Complaint. See
Jones, 722 F.2d at 20-21 (refusing to allow claims assigned by corporation to be combined with
claims by individual in absence of presence of participation by company, represented by
attorney).
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C. The Copyright Dr. Yue Claims as an Individual Has No Valid Registration,
So Dr. Yue Has No Standing to Sue on It, Either.
In addition to the copyright registration assigned by Netbula, Plaintiff also purports to sue
for alleged infringement for unregistered portions of Netbula’s PowerRPC software. See Compl.
¶ 2 (“The copyrights infringed by Defendants in the instant action are . . . registration number
TX 6-491-697 . . . and the copyrights in unpublished works Plaintiff created before July
1996 . . . .”). Plaintiff alleges that he created the unpublished, unregistered works “[f]rom 1994 to
July 1996,” before Netbula was incorporated, and that he “did not assign or transfer the
copyrights in his earlier works created before July 24, 1996 to Netbula.” See Compl. ¶¶ 10-12.8
These alleged unregistered copyrights do not establish a basis for Plaintiff to bring this
federal lawsuit. Section 411 of the Copyright Act mandates that “no action for infringement of
the copyright in any United States work shall be instituted until preregistration or registration of
the copyright claim has been made in accordance with this title.” 17 U.S.C. § 411(a). Here, there
is admittedly no registration in Plaintiff’s name, and his pending application is not sufficient to
confer federal jurisdiction. Under the plain language of the statute, a plaintiff may not
“institute[]” an action in federal district court “until . . . registration of the copyright claim has
been made in accordance with this title.” See id. (emphasis added). Of course, a copyright
registration is not the same as a copyright application—upon receipt of an application, “the
Registrar of Copyrights must examine and approve a copyright claim before it is ‘registered’
under the Act.” Berry v. Penguin Group, Inc., 448 F. Supp. 2d 1202, 1202-03 (W.D. Wash.
2006) (citing 17 U.S.C. § 410(a)); see also Corbis Corp. v. Amazon.com, Inc., 351 F. Supp. 1090,
1112 (W.D. Wash. 2004) (“Although submission of a claim begins the registration process, a
claim is not registered until it is approved by the Register of Copyrights. Under the plain meaning
of the language, the Register’s approval triggers this Court’s jurisdiction.”).
8 Plaintiff further alleges that the PowerRPC software licensed to Defendants was a “derivative
work” of these earlier unpublished works,” even though the registration at issue in this case does
not identify Dr. Yue’s alleged earlier works as a preexisting work on which the registered work is
based on or incorporates. Compare Compl. ¶ 12 with Compl. ¶ 2 & Exh. A (attaching registration
that fails to identify supposed earlier works authored by Plaintiff).
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Courts across the country have followed this approach. See Berry, 448 F. Supp. 2d at
1202-03 (reviewing case law from district courts of the Ninth Circuit in determining that court
lacked subject matter jurisdiction over action where works had not yet been registered at the time
complaint was filed and dismissing complaint even where registration issued subsequent to the
complaint); In re Literary Works in Electronic Databases Litigation, 509 F.3d 116, 121 (2d Cir.
2007) (“[W]e again conclude that section 411(a)’s registration requirement limits a district court’s
subject matter jurisdiction to claims arising from registered copyrights only.”); La Resolana
Architects v. Clay Realtors Angel Fire, 416 F.3d 1195, 1202-05 (10th Cir. 2005) (reviewing case
law and holding that statute requires “actual registration by the Registrar of Copyrights” and that
“[u]ntil that happens, an infringement action will not lie in the federal courts”); Loree Rodkin
Mgmt. Corp. v. Ross-Simons, Inc., 315 F. Supp. 2d 1053, 1055-56 (C.D. Cal. 2004) (citing, inter
alia, Ryan v. Carl Corp., 1998 U.S. Dist. LEXIS 9012 (N.D. Cal. 1998), for the proposition that
registration must issue before action may be brought and dismissing case on that basis); see also
William F. Patry, Patry on Copyright § 17-213 (2007) (collecting cases and noting that all courts
of appeals addressing the issue, except the Fifth Circuit, have held that actual registration is
prerequisite to filing suit).
As Patry explains, “registration”—and thus standing to file suit—can only occur “after
examination” by the Register of Copyrights, so under Section 411, the term registration cannot
merely be the submission of an application to the Register of Copyrights. Id. at §§ 17-224 to 25
(citing Section 410(a) of the 1976 Copyright Act). As contemplated by Sections 410(b) and (d),
the Copyright Office may find that the submitted work is not entitled to registration after
examination. Thus it would be nonsensical to treat an application the same as a registration. See,
e.g., Robinson v. Princeton Review, Inc., 1996 WL 663880, at *7 (S.D.N.Y. 1996) (“Section
410(a)’s requirement of “examination” would be meaningless if filing and registration were
synonymous”); Patry on Copyright § 17-226 (noting that Copyright Office has examining, not
merely clerical, function). The prerequisite of registration is in accord with the statutory
obligations of the Copyright Office “to determine in the first instance the validity of a copyright
request.” Demetriades v. Kaufmann, 680 F. Supp. 658, 661 (S.D.N.Y. 1988).
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The complaint discloses that no registration has issued for Plaintiff’s alleged individual
copyright, and therefore it cannot support a claim.
Nor is there basis to allow leave to amend to allege any registration that might
subsequently issue. As stated by the Supreme Court, “[t]he presence or absence of federal-
question jurisdiction is governed by the ‘well-pleaded complaint rule,’ which provides that
federal jurisdiction exists only when a federal question is presented on the face of the plaintiff’s
properly pleaded complaint.” See Caterpillar, Inc. v. Williams, 482 U.S. 386, 392 (1987) (citing
Gully v. First National Bank, 299 U.S. 109, 112-13 (1936)); see also Sallen v. Corinthians
Licenciamentos LTDA, 273 F.3d 14, 23 (1st Cir. 2001) (“Jurisdiction depends upon the facts as
they existed when the complaint was brought.”) Accordingly, even if a registration for Plaintiff’s
alleged pre-1996 works were issued after the Complaint was filed, this Court should still dismiss
this action. See ConnectU LLC v. Zuckerberg, 482 F. Supp. 2d 3, 5-6 n.2 (D. Mass. 2007)
(subsequent amendment of the complaint to assert newly obtained registration did not cure defect
that “there was no basis for federal question jurisdiction on the facts as initially alleged”); see
also Berry, 448 F. Supp. 2d at 1202-03 (same).
In short, the only conceivable basis for federal jurisdiction would be a registration that
could have been brought, if at all, by Netbula—the legitimate owner of the infringement claims
related to the only copyright registration in this action. This action should be dismissed.9
II. COPYRIGHT CLAIMS AGAINST DEREK P. WITTE AND STEVEN R.
SPRINGSTEEL FAIL AS A MATTER OF LAW.
As to Mr. Witte and Mr. Springsteel, Dr. Yue cannot rely on conclusory assertions in his
Complaint to satisfy the requirements for pleading their individual liability. Referring to
“Defendants” generically and sweeping the individual employees up with Chordiant does not
state a claim of copyright infringement against those individuals.
9 If the Court were to conclude that Dr. Yue somehow had standing to assert claims based on the
assigned copyright, the lack of a federal registration would still doom suit on the unregistered
copyright, and the Court should, in such case, strike the Complaint’s allegations in Paragraph 2
related to the unregistered copyright.
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A. A Pleading Alleging Copyright Infringement May Not Rely on Legal
Conclusions And Must State Facts Showing How a Defendant Infringed.
While the Court must assume that the allegations of fact in Plaintiff’s Complaint are true
when considering a Rule 12(b)(6) motion to dismiss, the Court has no obligation “to accept as
true conclusory allegations . . . or unreasonable inferences.” See Transphase Sys. v. Southern
California Edison, 839 F. Supp. 711, 718 (C.D. Cal. 1993) (rejecting plaintiff’s conclusory
allegations and granting defendant’s motion to dismiss). A complaint must “give the defendant
fair notice of what the . . . claim is and the grounds upon which it rests.” See Bell Atl. Corp. v.
Twombly, 127 S. Ct. 1955, 1964 (2007) (emphasis added). The Twombly Court rejected the
standard that a complaint should not be dismissed for failure to state a claim “unless it appears
beyond doubt that the plaintiff can prove no set of facts in support of his claim which would
entitle him to relief.” See id. at 1968–69. Instead:
While a complaint . . . does not need detailed factual allegations, a plaintiff’s
obligation to provide the “grounds” of his “entitlement to relief” requires more
than labels and conclusions, and a formulaic recitation of the elements of a cause
of action will not do. . . . Factual allegations must be enough to raise a right to
relief above the speculative level, . . . on the assumption that all the allegations in
the complaint are true (even if doubtful in fact).
Id. at 1964–65 (citations and footnote omitted) (emphasis added). If a complaint does not meet
this standard, “this basic deficiency should . . . be exposed at the point of minimum expenditure
of time and money by the parties and the court.” Id. at 1966 (citation omitted); see also In re
Elevator Antitrust Litig., 502 F.3d 47, 50-51 (2d Cir. 2007) (affirming dismissal of complaint
because it alleged a “list of theoretical possibilities [that] one could postulate without knowing
any facts whatever,” without specifying any particular activities by any particular defendant).
This precept is particularly true in the context of copyright infringement. Under Rule
8(a)(2), a plaintiff must “plead with specificity the acts by which a defendant has committed
copyright infringement.” Marvullo v. Gruner & Jahr, 105 F. Supp. 2d 225, 230 (E.D.N.Y. 2000)
(dismissing complaint and denying motion for leave to amend); Kelly v. L.L. Cool J, 145 F.R.D.
32, 36 (S.D.N.Y. 1992) (ruling against plaintiff because a “properly plead [sic] copyright
infringement claim must allege . . . by what acts during what time the defendant infringed the
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copyright”). A plaintiff must give each defendant notice, “with some specificity,” of his
“particular infringing acts.” See id. at 36 n.3 (“Broad, sweeping allegations of infringement do
not comply with Rule 8.”). A copyright infringement claim cannot survive a motion to dismiss if
it fails to indicate . . . by what acts the defendant infringed the copyright. See Brought to Life
Music, Inc. v. MCA Records, Inc., 2003 U.S. Dist. LEXIS 1967, at *3 (S.D.N.Y. 2003).
Accordingly, in dismissing a plaintiff’s claim of direct copyright infringement, the
Marvullo court held that the plaintiff’s allegation that the defendants acted “‘beyond the scope . . .
of the limited license,’ absent any factual support, merely states a legal conclusion insufficient to
withstand a motion to dismiss.” Marvullo, 105 F. Supp. 2d at 228. As to a possible claim of
contributory infringement, the court rejected as insufficient allegations that the defendants were
“cooperating with each other” in the infringement or that “the separate but coordinated acts of all
defendants” constituted infringement. Id. at 230 n.7. Moreover, failure to plead anything to show
that a particular defendant knew of the infringing conduct and induced, caused or materially
contributed to it failed to state a claim against that defendant. Id. at 230.
Similarly, in Brought to Life, the court dismissed a claim of copyright infringement
against an individual defendant because the plaintiff did not allege how that defendant infringed
the plaintiff’s exclusive rights. Brought to Life, 2003 U.S. Dist. LEXIS 1967, at *4. As to a
possible claim of contributory infringement, the court held that the plaintiff had to, but did not,
show “that the defendant knew of, and substantially participated in, the alleged direct
infringement” for the claim to survive dismissal. Id. Alleged “authorization or assistance must
bear a direct relationship to the infringing acts, and the contributory infringer must have acted in
concert with the direct infringer.” Id. at *5 (citation omitted).
These rules safeguard a defendant from having to defend hopelessly vague, conclusory
allegations leveled against a group of defendants. Thus, a claim of copyright infringement is
properly dismissed if the plaintiff merely alleges that the defendant was the chairman of a
codefendant organization, was credited in the allegedly infringing work, was copied on a letter
about possible legal action, and did not respond to the plaintiff’s “personal appeals” before the
litigation. Carell v. Shubert Org., 104 F. Supp. 2d 236, 271 (S.D.N.Y. 2000) (granting motion to
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dismiss). Likewise, a claim based on allegations that a defendant is “a sole or part owner” of a
defendant corporation, is “a producer and/or licensor” of the allegedly infringing productions, and
has a sizeable investment in such infringement is insufficient without additional facts about that
defendant’s actual acts. Id. Indeed, while the individual defendants in Carell were alleged to
have “participated in some if not all” of the infringements, the court dismissed claims against
them because the plaintiff provided no details about the individual defendants aside from that
conclusory allegation. Id. (“Absent from the Complaint is any description of acts that could lead
to the conclusion of direct copyright or trademark infringement, or allegations of authorization or
participation that would indicate vicarious liability or contributory infringement.”)
Similarly, in CNN, L.P. v. GoSMS.com, Inc., the court dismissed copyright infringement
claims against the manager and the director of a co-defendant corporation. 2000 U.S. Dist. LEXIS
16156, at *17-18 (S.D.N.Y. 2000). It was insufficient for the plaintiff to allege that each
individual, “by virtue of [his/her] position and, upon information and belief [his/her]
shareholdings, is one of the individuals that controls the affairs of [defendant corporation] and is
personally involved in the infringing conduct alleged herein.” Id. “Without allegations of acts of
infringement, supervision or control over the direct infringers, or contribution to the infringement,
the Court finds that plaintiffs’ allegations are insufficient to plead either direct copyright or
trademark infringement or either contributory infringement or vicarious liability.” Id.; see also
Cinema Concepts Theatre Service Co. v. Filmack Studios, No. 89 C 0024, 1989 U.S. Dist. LEXIS
5640, at *3-*4 (N.D. Ill. May 15, 1989) (dismissing copyright infringement claim against
corporate officers where the plaintiff alleged no facts that they individually knowingly
participated in, supervised or influenced the infringing activity, or derived financial benefit from
it); Galiano v. Harrah’s Operating Co., No. 00-0071, 2004 U.S. Dist. LEXIS 8265, *40-*42
(E.D. La. May 10, 2004) (finding claims for contributory and vicarious copyright infringement
insufficient where plaintiff did not allege how the defendant directed or participated in the
infringing action; how the defendant had the right and ability to control the infringing actions; and
how the defendant received a direct financial benefit from third parties infringing acts); Goes
Litho. Co. v. Banta Corp., 26 F. Supp. 2d 1042, 1045 (N.D. Ill. 1998) (granting motion to dismiss
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claim for vicarious infringement because complaint failed to allege facts about defendant’s direct
financial interest in infringement or ability to control it).
B. Dr. Yue Fails to State a Cause of Action Against Mr. Springsteel for Either
Direct, Contributory, or Vicarious Copyright Infringement.
Like the plaintiffs in Carell and GoSMS.com, the Complaint fails to state a claim against
Mr. Springsteel by mere conclusory allegations of his job title and receipt of a letter. First, there
is nothing to suggest that Mr. Springsteel was guilty of direct infringement—no allegation that he
actually made any copies of Plaintiff’s software.
Second, with respect to contributory infringement, there is nothing to show that
Mr. Springsteel knew of another’s infringement and either materially contributed to or induced
that infringement. See Perfect 10, Inc., 494 F.3d at 795 (affirming dismissal of contributory
infringement claims). As in Carell, it is immaterial that Dr. Yue sent a letter to Mr. Springsteel
regarding possible legal matters—especially a letter, as here, that merely requested “software
usage information.” See Compl. ¶ 27; Carell, 104 F. Supp. 2d at 271. Similarly, a conclusory
allegation that he “failed to halt” the infringement—without even identifying what infringement
purportedly continued, much less his role in it—is not enough to rise above the entirely
speculative standard precluded in Twombly. There is nothing to show either Mr. Springsteel’s
authorization or assistance, much less any direct relationship, to any purported infringing acts by
anyone. See Brought to Life, 2003 U.S. Dist. LEXIS 1967, at *4.
The fact that Mr. Springsteel “is the Chairman, President and CEO of CSI,” Compl. ¶ 8, is
also not nearly enough to establish vicarious liability, that is, the right and ability to supervise the
infringing conduct, plus a direct financial interest in the infringing activity. Perfect 10, 494 F.3d
at 795. Just as in Carell and GoSMS.com, recitation of a CEO’s lofty job titles is insufficient to
allege how this apex officer was involved in the alleged infringement and supervised any
individual purportedly involved. See Carell, 104 F. Supp. 2d at 271; GoSMS.com, 2000 U.S.
Dist. LEXIS 16156, at *17-18. As in GoSMS.com, a bare allegation that an individual defendant
“controls the affairs” of other defendants and was “personally involved” cannot prevent dismissal.
See GoSMS.com, 2000 U.S. Dist. LEXIS 16156, at *17-18. Likewise regardless of
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Mr. Springsteel’s investment in the defendant corporation, Dr. Yue fails to allege facts that
Mr. Springsteel has a direct financial interest in the alleged infringing activity. See Compl. ¶ 40;
Carell, 104 F. Supp. 2d at 271; Perfect 10, 494 F.3d at 802. Accordingly, the claims against Mr.
Springsteel must be dismissed for lack of any factual support.
C. Dr. Yue Fails to State a Cause of Action Against Mr. Witte for Either Direct,
Contributory, or Vicarious Copyright Infringement.
Dr. Yue’s allegations against Mr. Witte are likewise fatally flawed. Again, with respect to
direct liability, there is simply no allegation, whatsoever, that Mr. Witte actually engaged in
copying of Netbula’s software himself.
As to contributory infringement, while Dr. Yue certainly communicated with Mr. Witte
about license usage reports, as in Carell, it is not enough to simply allege that Mr. Witte did not
respond to Dr. Yue’s personal appeals in the way Dr. Yue desired. See Carell, 104 F. Supp. 2d at
271. Mere communications with an individual defendant about possible legal matters does not
constitute a sufficient allegation that the defendant participated in, materially contributed to or
induced any allegedly infringing activity. See id. Nowhere does the Complaint identify what
“continuing infringement” occurred after Mr. Witte became involved, nor any facts indicating
what Mr. Witte purportedly did to “support, encourage or guide” same. Compl. ¶ 39. As in
GoSMS.com, this conclusory type of allegation cannot withstand a motion to dismiss. See
GoSMS.com, 2000 U.S. Dist. LEXIS 16156, at *17-18; see also Livnat v. Lavi, 1997 U.S. Dist.
LEXIS 13633, at *6 (S.D.N.Y. 1997) (dismissing copyright claim as to individual defendants
because allegations lacked sufficient specificity to permit an adequate opportunity for defense).
For vicarious liability, there is no allegation of how Mr. Witte, as general counsel,
exercised supervision or control over the software programmers. Nor is there the least allegation
of any direct financial benefit Mr. Witte would realize from purported infringement. Mere status
as an officer or shareholder cannot suffice to fill in these blanks—otherwise, every officer would
be subject to litigation in every instance in which copyright infringement were alleged.
Like the plaintiff in Marvullo, Dr. Yue conclusorily alleges that a group of defendants
engaged in activities beyond what was authorized by a license. See Marvullo, 105 F. Supp. 2d
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at 228. But as Marvullo makes clear, it is wholly insufficient to lump together individual
defendants under generic claims of direct, contributory, and vicarious infringement. Id.
Dr. Yue’s ability to parrot the elements for copyright liability should not subject Mr. Witte and
Mr. Springsteel to having to answer his baseless and factually vacuous allegations. See Compl.
¶¶ 43-44.
III. THE COURT SHOULD STRIKE PLAINTIFF’S PRAYER FOR ATTORNEYS’
FEES AND STATUTORY DAMAGES.
A motion to strike brought under Rule 12 “may be used to strike any part of the prayer for
relief when the damages sought are not recoverable as a matter of law.” Bureerong v. Uvawas,
922 F. Supp. 1450, 1479 n.34 (C.D. Cal. 1996).
A copyright owner is barred “from recovering statutory damages or attorney’s fees for
copyright infringement if two conditions are met: (1) the copyright was registered more than
three months after the work was first published, and (2) the infringing activity commenced after
the date of first publication and before the effective date of registration of the work.” Parfums
Givenchy v. C & C Beauty Sales, 832 F. Supp. 1378, 1393 (C.D. Cal. 1993) (citing 17 U.S.C §
412). Here, Dr. Yue’s own allegations establish both of these elements.
First, the “NETBULA POWERRPC 2K4” copyright alleged in the Complaint was not
registered until December 15, 2006, more than two years after the date of first publication
(January 15, 2004). See Compl. ¶ 2 & Exh. A.
Second, Plaintiff alleges that Chordiant began its infringement long before that 2006
registration date. Indeed, Plaintiff claims that Chordiant’s inclusion of Netbula’s software in
Chordiant’s product was unlicensed from the outset, ostensibly because the purchase order that
delivered the software to Chordiant in 2004 was submitted for Chordiant International. Compl.
¶¶ 19-20, 55.
Because the Complaint demonstrates that “Plaintiff registered its copyright well after
Defendant’s alleged infringement and publication of the allegedly infringing work,” it is
appropriate to strike a prayer for attorneys’ fees and statutory damages for copyright
infringement. See Google, Inc. v. Affinity Engines, Inc., No. C-05-0598, 2005 U.S. Dist. LEXIS
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37369, at *17 (N.D. Cal. Aug. 12, 2005) (citing 17 U.S.C § 412); Cognotec Servs. v. Morgan
Guar. Trust Co., 862 F. Supp. 45, 52 (S.D.N.Y. 1994).
CONCLUSION
For the foregoing reasons, Defendants respectfully request that the Court dismiss without
leave to amend Dr. Yue’s claims for copyright infringement. In the alternative, Defendants
request that the Court strike the allegations in paragraph 2 relating to (i) the registered but
impermissibly assigned copyright of Netbula, and (ii) the unregistered copyright of Dr. Yue.
Defendants Derek P. Witte and Steven R. Springsteel respectfully request that the Court dismiss
without leave to amend all claims asserted against them. Finally, Defendants respectfully request
that the Court strike Dr. Yue’s prayers for statutory damages and attorneys’ fees.
Dated: February 25, 2008 FENWICK & WEST LLP
By:
Laurence F. Pulgram
Attorneys for Defendants
CHORDIANT SOFTWARE, INC.,
DEREK P. WITTE, STEVEN R. SPRINGSTEEL,
and specially appearing for OLIVER WILSON
26257/00401/LIT/1280846.7
/S/ LAURENCE F. PULGRAM
Case 5:08-cv-00019-JW Document 29 Filed 02/26/2008 Page 32 of 32
