Jules Jordan Video, Inc. v. 144942 Canada, Inc.

FILED
FEB 08 2012
NOT FOR PUBLICATION
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JULES JORDAN VIDEO, INC., a No. 11-56254
California corporation, et al.,
D.C. No. 2:05-cv-06771-SJO
Plaintiffs - Appellees, Consolidated with 8:05-cv-00517-
SJO and 2:05-cv-06769-SJO
v.
MEMORANDUM *
144942 CANADA, INC., a Canadian
corporation d/b/a KAYTEL VIDEO
DISTRIBUTION, et al.,
Defendants - Appellants
Appeal from the United States District Court
For the Central District of California
S. James Otero, District Judge, Presiding
Before: KOZINSKI, Chief Judge, W. FLETCHER, Circuit Judge, and
GETTLEMAN, District Judge.**
Plaintiffs/Appellees’ (“plaintiffs”) motion for summary affirmance is
granted. In our previous opinion, we vacated the jury verdict in favor of plaintiff
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Gettleman, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
Ashley Gasper on the right of publicity claim, reinstated the verdict in favor of
Jules Jordan Video and Gasper on copyright infringement, and remanded to the
district court for proceedings consistent with that opinion. Jules Jordan Video, Inc.
v. 144942 Canada Inc., 617 F.3d 1146, 1160-61 (9th Cir. 2010). Our prior
decision and mandate were based on a complete review of all arguments raised in
the initial appeal. The only proceeding necessary on remand was the entry of
judgment in favor of plaintiffs on the copyright claim. See Firth v. United States,
554 F.2d 990, 993-94 (9 th Cir. 1977).
All arguments raised by defendants in the initial appeal as to the ownership
and validity of the copyrights were determined by this court to have been without
merit or waived by defendants’ failure to object to the special verdict form
submitted to the jury. Jules Jordan Video, 617 F.3d at 1160-61. To the extent that
defendants attempt now to raise new arguments challenging ownership and the
amount of the damage awards, those matters could have and should have been
raised in the initial appeal. Because they were not, they are waived. See
Kesselring v. F/T Arctic Hero, 95 F.3d 23, 24 (9th Cir. 1996) ( “Since appellant
failed to raise this issue in its first appeal, it is waived.”); Munoz v. Cnty. of
Imperial, 667 F.2d 811, 817 (9th Cir. 1982).
2
Finally, plaintiffs’ request for sanctions is denied. The time has come to put
this litigation to rest.
MOTION FOR SUMMARY AFFIRMANCE GRANTED; REQUEST
FOR SANCTIONS DENIED
3