Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Beach Front Villas, LLC v. Rogers

United States District Court, D. Hawaii

March 15, 2019



          Leslie E. Kobayashi United States District Judge

         Before the Court is Plaintiff Beach Front Villas, LLC's (“Plaintiff”) Motion to Remand (“Motion”), filed on December 11, 2018. [Dkt. nos. 9 (Motion), 10 (Mem. in Supp. of Motion).] Defendant Jennifer Rogers (“Defendant”) filed her memorandum in opposition on January 17, 2019, and Plaintiff filed its reply on January 25, 2019. [Dkt. nos. 14, 15.] This matter came on for hearing on February 8, 2019. Plaintiff's Motion is hereby denied for the reasons set forth below.


         On November 20, 2018, Defendant removed the instant action to this district court based on 28 U.S.C. §§ 1441(a) and 1446. [Notice of Removal of Civil Action (“Notice of Removal”) (dkt. no. 1), at 2.] Defendant alleged jurisdiction in this district court was proper pursuant to 28 U.S.C. §§ 1331 and 1338(a) “since Plaintiff is seeking damages purportedly arising from and related to Defendant's breach of contract and unjust enrichment and Defendant alleges copyright infringements by Plaintiff” pursuant to 17 U.S.C. §§ 101, et seq. (“Copyright Act”). [Id.] Plaintiff originally filed its complaint in the Circuit Court of the Second Circuit, State of Hawai`i (“state court”), on October 31, 2018. [Notice of Removal, Decl. of Alan K. Akao, Exh. A (Complaint).]

         According to the Complaint, Plaintiff is a Hawai`i limited liability company doing business in the County of Maui, Hawai`i. [Complaint at ¶ 1.] Defendant is an individual residing and doing business in the County of Maui under the name A Place in Time Photography. [Id. at ¶ 3.] In January 2018, Plaintiff and Defendant entered into an Architectural Photograph Release (“Agreement”) to have Defendant photograph/film Plaintiff's beachfront vacation home in Kihei, Hawai`i (“Property”).[1] [Id. at ¶ 8.] As part of the Agreement, Plaintiff retained “the unlimited use for photograph and/or video production photographs” of the Property for Plaintiff's business and personal use. [Id. at ¶¶ 8-9.] The Agreement provides in relevant part, that “[d]igital negative and previews remain under exclusive copyright of Jennifer Rogers/A Place in Time Photography for the life of the image/video file.” [Agreement at ¶ 4.] If Plaintiff wished to use any of the photographs or video in a manner not detailed within the Agreement, it was required to obtain Defendant's written authorization prior to use. [Id. at ¶ 7.] The Agreement also contains a “NOTICE OF COPYRIGHT” stating that it is illegal to copy, distribute, or reproduce any of the photographs in a manner not detailed in the Agreement, or to share the photographs with unauthorized parties without Defendant's permission. [Id. at ¶ 8.] Plaintiff alleges Defendant withheld photographs and authorization of Plaintiff's use of the photographs and demanded additional payment in breach of the Agreement. [Complaint at ¶ 10.] As a result, Plaintiff brought the instant suit for the following claims: breach of contract (“Count I”) and unjust enrichment (“Count II”). [Id. at ¶¶ 16-21.]

         Defendant filed its answer to the Complaint and counterclaim against Plaintiff (“Counterclaim”) in state court on November 20, 2018. See Reply, Decl. of Paul Peters (“Peters Decl.”), Exh. 2 at 5-13 (Counterclaim).[2] Defendant's Counterclaim expands on Plaintiff's factual allegations surrounding the Agreement. Defendant alleges that, on January 4, 2018, Mr. Richardson and Chelsea Dimin, listing agents with “Hawaii Life Real Estate Brokers, ” - not Plaintiff -executed the Agreement.[3] [Id. at ¶¶ 9, 10.] The photo shoot of the Property took place on January 17 and 18, 2018. On the second day, Gal Cohen, attended the photo shoot and requested copies of Defendant's photographs for his personal use.[4]Defendant offered to sell Mr. Cohen a license for the use of the photographs, but Mr. Cohen declined. [Id. at ¶ 12.] On January 20, 2018, Defendant released the photographs to Mr. Richardson and Ms. Dimin, along with a copy of the “invoice, copyright release and contract.”[5] [Id. at ¶ 13.] Defendant provided Mr. Richardson and Ms. Dimin with a link to the website gallery of Defendant's work, which Defendant authorized to be shared with Mr. Cohen so he could view the quality of Defendant's photographs. However, when Mr. Cohen attempted to access the photographs through the website gallery link, Defendant notified Mr. Richardson and Ms. Dimin that Mr. Cohen was unauthorized to retrieve any of the electronic files of the photographs. [Id.] Mr. Richardson and Mr. Cohen then instructed Defendant to remove the photographs of the Property from her website. [Id. at ¶ 14.] Defendant again attempted to sell the ownership rights to Mr. Cohen, and when Mr. Cohen refused to accept the offer, Defendant submitted an updated invoice to Mr. Cohen reflecting his use of Defendant's photographs. [Id. at ¶¶ 14-15.]

         On September 27, 2018, Defendant found the unauthorized use of her photographs of the Property on vacation rental websites such as “Exotic Estates, Luxury Retreat, and VRBO, Home Away, Air B&B, the Knot, as well as in DWELL magazine, ” posted by Mr. Cohen and Ms. Dimin. [Id. at ¶ 16.] On November 7, 2018, Defendant also found the unauthorized use of three of her photographs on Mr. Cohen's bed and breakfast permit application submitted to the County of Maui. [Id. at ¶ 17.]

         Defendant alleges the following counterclaims: breach of contract (“Counterclaim I”); tortious interference with contractual relations based on Plaintiff's interference with Defendant's transaction with Mr. Richardson and Ms. Dimin (“Counterclaim II”); unfair competition (“Counterclaim III”); and copyright infringement for the use of Defendant's photographic works and images (“Counterclaim IV”). [Id. at pgs. 5-8.]


         Federal district courts have jurisdiction over all civil actions “arising under the Constitution, laws, or treaties of the United States.”[6] 28 U.S.C. § 1331. With regard to “any civil action arising under any Act of Congress relating to patents, plant variety protection, copyrights and trademarks, ” the federal district courts have original jurisdiction. 28 U.S.C. § 1338(a). A defendant may remove a case filed in a state court to the federal district court pursuant to 28 U.S.C. § 1441, if the district court would have otherwise had jurisdiction.

         A party may challenge removal by invoking 28 U.S.C. § 1447, which provides the mechanism for the federal district court to remand a case back to state court if it was wrongfully, or improperly, removed. Section 1447(c) provides:

A motion to remand the case on the basis of any defect other than lack of subject matter jurisdiction must be made within 30 days after the filing of the notice of removal under section 1446(a). If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded. An order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal. A certified copy of the order of remand shall be mailed by the clerk to the clerk of the State court. The State court may thereupon proceed with such case.

         “A plaintiff who contests the existence of removal jurisdiction may file a motion to remand, . . . [which is] the functional equivalent of a defendant's motion to dismiss for lack of subject-matter jurisdiction under [Fed. R. Civ. P.] 12(b)(1).” Leite v. Crane Co., 749 F.3d 1117, 1122 (9th Cir. 2014).[7] A party challenging the propriety of removal can make either a “facial attack” or “factual attack” in support of their arguments to remand a case back to state court. Id. at 1121-22. The district court treats a facial attack as it would a motion to dismiss under a Rule 12(b)(6) standard, by “[a]ccepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor” to determine whether the allegations are “sufficient as a legal matter to invoke the court's jurisdiction.” Id. at 1121 (citation omitted). A factual attack “contests the truth of the plaintiff's factual allegations, usually introducing evidence outside the pleadings.” Id. (internal quotation marks and citation omitted). Generally, the plaintiff bears the burden of “proving by a preponderance of the evidence that each of the requirements for subject-matter jurisdiction has been met. . . .With one caveat, if the existence of jurisdiction turns on disputed factual issues, the district court may resolve those factual disputes itself.” Id. at 1121-22 (emphasis added) (internal quotation marks and citations omitted). The exception to this rule is where “the issue of subject-matter jurisdiction is intertwined with an element of the merits of the plaintiff's claim.” Id. at 1122 n.3 (citations omitted). The Ninth Circuit has stated:

The question of jurisdiction and the merits of an action are intertwined where “a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiff's substantive claim for relief.” [Sun Valley Gas, Inc. v. Ernst Enters., 711 F.2d 138, 139 (9th Cir. 1983)]. See also Thornhill Publ'g Co. v. Gen. Tel. Co., 594 F.2d 730, 734 (9th Cir. 1979) (“[W]hen a statute provides the basis for both the subject matter jurisdiction of the federal court and the plaintiffs' substantive claim for relief, a motion to dismiss for lack of subject matter ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.