Buffy Lyn Roney; v. MICHAEL MILLER, DBA Falcon Press, Inc.

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BUFFY LYN RONEY; et al.,
Plaintiffs-Appellants,
v.
MICHAEL MILLER, DBA Falcon Press,
Inc. and UNITED STATES
ECCLESIASTICAL SOCIETY &
SEMINARY, DBA New Falcon
Publications, a corporation,
Defendants-Appellees.
No. 16-55717
D.C. No. 2:15-cv-09652-R-AS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted December 4, 2017**
Pasadena, California
Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
FILED
DEC 11 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Plaintiffs appeal the dismissal of their complaint without leave to amend.
We reverse.1
1. Plaintiffs state a straightforward case of copyright infringement: they (as
heirs of the author) are the owners of the copyrights in and to four books—which
Plaintiffs identify in their First Amended Complaint (FAC) by title and copyright
registration number—and Defendants sell those books without authorization.
Plaintiffs thus allege the two elements of a copyright infringement claim—
“‘ownership of a valid copyright’” and “‘copying of constituent elements of the
work that are original.’” Seven Arts Filmed Entm’t Ltd. v. Content Media Corp.
PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Feist Publ’ns, Inc. v. Rural Tel.
Serv. Co., 499 U.S. 340, 361 (1991)); see also 1 Melville B. Nimmer & David
Nimmer, Nimmer on Copyright § 13.01 (Matthew Bender, rev. ed. 2017)
(“Reduced to most fundamental terms, there are only two elements necessary to the
plaintiff’s case in an infringement action: ownership of the copyright by the
plaintiff and copying by the defendant.”). Plaintiffs’ FAC gives Defendants fair
notice of the alleged wrongdoing, such that they can admit or deny that they
sold/sell the books identified in the FAC without permission. The district court
erred in concluding Plaintiffs failed to state a claim.
1 Plaintiffs’ allegations are familiar to the parties and are restated here
only as necessary to resolve the legal issues of the appeal.

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2. Plaintiffs also argue the district court abused its discretion in denying
leave to amend. That argument is moot in light of our conclusion that the FAC
sufficiently alleges a copyright infringement claim. However, because we perceive
a reasonable likelihood that Plaintiffs will seek leave to amend,2 and because the
district court’s decision to deny leave to amend conflicts with our jurisprudence,
we note a few principles governing requests for leave to amend.
“When justice requires, a district court should ‘freely give leave’ to amend a
complaint.” Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 871
(9th Cir. 2016) (quoting Fed. R. Civ. P. 15(a)(2)). “Absent prejudice, or a strong
showing of any of the remaining Foman factors, there exists a presumption under
Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v.
Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see Foman v. Davis, 371 U.S.
178, 182 (1962) (identifying factors that may justify denying leave to amend,
including undue delay, bad faith or dilatory motive, repeated failure to cure
deficiencies by amendments previously allowed, undue prejudice to the opposing
party, and futility). Although the repeated failure to cure deficiencies is a proper
basis for denying leave to amend, there is no such repeated failure when, as here,
the current motion to dismiss is “the first pleading[ ] to attack the sufficiency of
2 In response to the motion to dismiss, Plaintiffs submitted a proposed
Second Amended Complaint, which the district court rejected.

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[the plaintiffs’] allegations, the current decision[ ] by the district court . . . [is] the
first to address the sufficiency of those allegations, and [the plaintiffs are] seeking
[their] first opportunity to cure those deficiencies.” United States v. United
Healthcare Ins. Co., 848 F.3d 1161, 1183 (9th Cir. 2016) (reversing denial of leave
to amend even though the plaintiff had previously amended his pleading three
times); see also Eminence Capital, 316 F.3d at 1053 (noting that although the
complaint was amended multiple times, “it is not accurate to imply that plaintiffs
had filed multiple pleadings in an attempt to cure pre-existing deficiencies”).
Additionally, “[u]nder futility analysis, ‘[d]ismissal without leave to amend is
improper unless it is clear . . . that the complaint could not be saved by any
amendment.’” United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.
2011) (second alteration in original).
The judgment is VACATED, the district court’s order granting Defendants’
motion to dismiss is REVERSED, and the matter is REMANDED for further
proceedings consistent with this disposition. Costs are to be taxed against
appellees Michael Miller and United States Ecclesiastical Society & Seminary.

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