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Case 4:13-cv-00494-Y Document 47 Filed 01/21/14

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UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS Ft. Worth Division ERGUN CANER, Plaintiff, v. JASON SMATHERS, Defendant. * * * * * * * * * * * * * * * * *

Civil Action No. 4:13-cv-00494 (Y)

DEFENDANTS REPLY IN SUPPORT OF HIS MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM, OR IN THE ALTERNATIVE, FOR SUMMARY JUDGMENT 1 On 26 November 2013 Defendants Jonathan Autry and Jason Smathers (Smathers) filed a Motion to Dismiss for Failure to State a Claim, or in the Alternative, for Summary Judgment pursuant to Federal Rules of Civil Procedure 12(b)(6) and 56, supported by a 25-page legal memorandum citing both relevant case law and federal regulatory law. (Defs. Br. Supp. Mot. Dismiss for Failure to State a Claim, or Altern., for Summ. J., Dkt. #28-1 (filed Nov. 26, 2013) [hereinafter Def.s Mem.].) In his brief Smathers clearly demonstrated that Plaintiff Ergun Caner (Caner) does not possess a viable copyright interest in the videos in question, and that even if he did, that Smathers use of the videos is covered by the fair use doctrine. In response to this Motion, Caner filed a two-page Oppositionciting one court opinion, and that one for an irrelevant holdingarguing that the case should not be dismissed because he filed the application with the Copyright Office the same day as he filed the Amended Complaint, and

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apparently ignoring all of Smathers other arguments except to take issue with the verbiage in one of Smathers other claims. (See Pl.s Mem. Resp. to Dkt. #28Defs. Mot. Dismiss for Failure to State a Claim, or Altern., for Summ. J., Dkt. #38 (filed Jan. 6, 2014) [hereinafter Pl.s Oppn].) Neither of these arguments successfully refutes Smathers Motion. First, the one case cited by Caner in support of his argument that his nearcontemporaneous application for registration allows him to proceed with this infringement case (see id. at 2 (citing Lakedreams v. Taylor, 932 F.2d 1103, 1108 (5th Cir.1991)) is inapposite. Smathers primary pertinent argument remains that the Court cannot award any monetary relief to Caner for two reasons: 1) he has not claimed any actual damages; and 2) he is not entitled to statutory damages or attorneys fees because his application for registration happened after the alleged infringement. (Def.s Mem. at 22-23 (quoting 17 U.S.C. 412; Mason v. Montgomery Data, Inc., 967 F.2d 135, 144 (5th Cir. 1992); EsNtion Records, Inc. v. TritonTM, Inc., No. 072027, 2009 U.S. Dist. LEXIS 106370, at *19-21 (N.D. Tex. Nov. 13, 2009); CHM Indus., Inc. v. Structural & Steel Prods., Inc., No. 08-454, 2008 U.S. Dist. LEXIS 86433, at *8-9 (N.D. Tex. Oct. 27, 2008)).) Even accepting Caners argument arguendo, he has not stated a claim upon which the Court can grant relief. Similarly, Caners characterization of 17 U.S.C. 410(c) as an evidentiary guideline, not a gatekeeping function (Pl.s Oppn at 2) is apropos of nothing. Smathers never stated otherwise. That statute states that [t]he evidentiary weight to be accorded the certificate of a registration made [more than five years after first publication of the work] shall be within the discretion of the court. 17 U.S.C. 410(c). Smathers argued that the Court, in its discretion,

This Motion was originally filed by both Defendants Jonathan Autry and Jason Smathers, but the Court severed the claims against Jonathan Autry on 15 January 2014. Accordingly, as the 2

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should [afford] no weight to any certificate 2 presented by Caner for a copyright application filed more than eight yearswith no explanation for the delayafter first publication of the work. (See Def.s Mem. at 15 (further stating that Smathers could still overcome a prima facie showing).) That assertion stands and has not been refuted by Caner. Most noteworthy, though, is the fact that Caner completely fails to address any of Smathers arguments regarding his lack of a viable and protectable copyright interest and Smathers fair use defense. It is generally a given that if a movant makes an argument in a dispositive motion and the non-movant does not address it in his Opposition, that argument is treated as conceded. See, e.g., Keaton v. Fairchild, No. 11-410, 2013 U.S. Dist. LEXIS 43699, at *28 (E.D. Tex. Jan. 31, 2013) (Plaintiff makes no argument that Mr. Stokes lacked the actual or apparent authority to consent to entry of the home and thus appears to concede Mr. Stokes did, in fact, have the requisite authority.); see also Ross v. Communications Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985) (holding that though the burden of proof rests initially with the moving party, when a motion for summary judgment is made and supported as provided in Rule 56, the nonmoving party must produce specific facts showing that there is a genuine issue for trial, rather than resting upon the bald assertions of his pleadings), overruled on other grounds by Price Waterhouse v. Hopkins, 490 U.S. 228 (1989); Hopkins v. Womens Div., General Bd. of Global Ministries, 284 F. Supp. 2d 15, 25 (D.D.C. 2003) (It is well understood in th[e D.C.] Circuit that when a plaintiff files an opposition to a dispositive motion and addresses only certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.), affd 98 Fed. Appx 8 (D.C. Cir. 2004); Cincinnati Ins. Co. v.

sole remaining movant, Smathers claims ownership of the Motion. 3

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Centech Bldg. Corp., 286 F. Supp. 2d 669, 681 (M.D.N.C. 2003) (considering an argument raised in a motion unopposed where the responding party failed to address the argument). Accordingly, the Court does not even need to reach either of the two questions discussed above to dismiss this case or grant summary judgment for Smathers; it can do so solely based on the arguments made in Smathers brief that Caner declined to oppose. CONCLUSION For the foregoing reasons and those stated in Defendants Motion and its supporting brief, the Court should dismiss this case with prejudice for failure to state a claim or, alternatively, award summary judgment to Smathers. Date: January 21, 2014 Respectfully submitted, /s/ Kelly B. McClanahan Kelly B. McClanahan, Esq. N.D. Tex. Bar #984704DC National Security Counselors 1200 South Courthouse Road Suite 124 Arlington, VA 22204 301-728-5908 240-681-2189 fax Kel@NationalSecurityLaw.org Counsel for Defendant

This argument assumes that the Copyright Office would even grant Caners application, which is unlikely. 4

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