Lee V POW MTD

Case 2:19-cv-08353-ODW-FFM Document 15 Filed 01/24/20 Page 1 of 32 Page ID #:346
1 A. Raymond Hamrick, III (State Bar No. 93821)

Chaz C. Rainey (State Bar No. 294754)
2 HAMRICK & EVANS, LLP
2600 West Olive Avenue, Suite 1020
3 Burbank, California 91505
Telephone No.: (818) 763-5292
4 Fax No.: (818) 763-2308
5 Attorneys for Defendants
POW! Entertainment, Inc.
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
HAMRICK & EVANS, LLP
11 JOAN CELIA LEE, as Trustee for the Case No.: 2:19-cv-08353

Lee Family Survivor’s Trust “A” Date
12 October 12, 1985, NOTICE OF MOTION AND
13 Plaintiff, MEMORANDUM OF POINTS AND
v. AUTHORITIES IN SUPPORT OF
14 DEFENDANT’S MOTION TO
POW! ENTERTAINMENT, INC., a DISMISS PLAINTIFF’S COMPLAINT
15 Delaware Corporation; and DOES 1 PURSUANT TO FRCP 12(b)(6)
through 10, inclusive, in their individual
16 and official capacities,
Hon. Judge Otis Wright
17 Defendants.
Hearing Date: February 24, 2020
18 Time: 1:30 p.m.
Dept.: 5-D
19
20 NOTICE OF MOTION AND MOTION
21 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD
22 HEREIN:
23 PLEASE TAKE NOTICE that on February 24, 2020, at 1:30p.m., in
24 Courtroom 5-D of the United States District Court for the Central District of
25 California located at 350 West 1st Street, Suite 4311, Los Angeles, California
26 90012-4565, before the Honorable Otis Wright, United States District Court Judge,
27 Defendant POW! ENTERTAINMENT, INC. will move the Court for entry of an
28 order dismissing, without leave to amend, the Complaint filed in the present case by
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MOTION TO DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP 12(B)(6)
1 Plaintiff JOAN CELIA LEE, AS TRUSTEE FOR THE LEE FAMILY

2 SURVIVOR’S TRUST “A” DATE OCTOBER 12, 1985, and all claims set forth
3 therein, pursuant to Fed. R. Civ. P. 12(b)(6) for failure to state any legally
4 cognizable claim for relief. This Motion is based on this Notice, the Memorandum
5 of Points and Authorities attached hereto, the pleadings and papers filed herein,
6 including any reply papers filed by Defendants, the oral argument that the Court
7 may desire to consider, and on such other evidence and argument that the Court may
8 desire to consider.
9 This Motion is made after multiple attempts to confer with Plaintiff’s counsel
10 pursuant to L.R. 7-3, having dispatched electronically and via certified mail on
11 November 11, 2019 a letter and copy of a proposed motion for sanctions citing
12 many of the same arguments raised in the present motion, and having further
13 reached out to counsel via email and telephone on November 25 and 26, offering to
14 hold the conference at on any time on any of three possible dates. Plaintiff’s
15 counsel refused all of dates proposed by Defendant, and then, when Defendant
16 accommodated Plaintiff’s schedule by slating the conference for December 2, 2019
17 (a date counsel was purportedly available), Plaintiff’s counsel cancelled just a few
18 hours before the scheduled time, then insisting he was unavailable for yet another
19 week.
20 DATED: January 24, 2020 HAMRICK & EVANS, LLP
21
22 By: /s/ Chaz C. Rainey
23 A. RAYMOND HAMRICK, III
CHAZ C. RAINEY
24 Attorneys for Defendants
POW! Entertainment, Inc.
25
26
27
28
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1 TABLE OF CONTENTS
2 I. INTRODUCTION .................................................................................................. 1
3 II. FACTUAL AND PROCEDURAL BACKGROUND ......................................... 3
4
A. THE 1998 AGREEMENT. ................................................................... 3
5
B. CONVERSION FROM STAN LEE ENTERTAINMENT TO
6 STAN LEE MEDIA. ............................................................................. 4
7
C. PETER PAUL’S ILLEGAL ACTS AND DEMISE OF STAN
8 LEE MEDIA. ........................................................................................ 4
9 D. STAN LEE’S TERMINATION OF THE 1998 AGREEMENT.......... 5
10
E. THE FORMATION AND OPERATION OF POW!
11 ENTERTAINMENT. ............................................................................ 6
12 F. PETER PAUL’S INSATIABLE APPETITE FOR FRIVOLOUS
13 AND DUPLICATIVE LITIGATION................................................... 6
14 III. LEGAL STANDARD ....................................................................................... 9
15 IV. ARGUMENT ................................................................................................... 10
16
A. PLAINTIFF LACKS STANDING TO BRING EACH AND
17 EVERY CLAIM ADVANCED IN THE COMPLAINT ................... 10
18 i. PLAINTIFF LACKS STANDING TO REQUEST
19 DECLARATORY RELIEF AS TO THE OWNERSHIP
OF THE SUBJECT INTELLECTUAL PROPERTY .............. 11
20
21 ii. PLAINTIFF LACKS STANDING TO REQUEST
DECLARATORY RELIEF FOR THE PURPORTED
22 RIGHTS OF PUBLICITY ........................................................ 12
23 iii. PLAINTIFF LACKS STANDING TO ASSERT A
24 CLAIM FOR CYBERSQUATTING UNDER 15 U.S.C. §
1125(d) ...................................................................................... 13
25
26 B. EACH AND EVERY CLAIM ASSERTED IN PLAINTIFF’S
COMPLAINT IS BARRED FOR BEING UNTIMELY ................... 14
27
i. PLAINTIFF’S CLAIM FOR DECLARATORY RELIEF
28 UNDER 28 U.S.C. §§ 2201 ET. SEQ. IS BARRED BY
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1 THE STATUTE OF LIMITATIONS ....................................... 14

2 ii. PLAINTIFF’S CLAIM FOR DECLARATORY RELIEF
3 UNDER RIGHTS OF PUBLICITY IS BARRED BY THE
STATUTE OF LIMITATIONS................................................ 16
4
iii. PLAINTIFF’S CLAIM FOR CYBERSQUATTING
5
UNDER 15 U.S.C. § 1125(d) IS BARRED FOR BEING
6 UNTIMELY.............................................................................. 18
7 C. EACH AND EVERY CLAIM ASSERTED IN PLAINTIFF’S
8 COMPLAINT IS BARRED BY THE DOCTRINES OF RES
JUDICATA AND COLLATERAL ESTOPPEL ................................ 20
9
V. CONCLUSION ............................................................................................... 22
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 TABLE OF AUTHORITIES
2
Cases
3
Aalmuhammed v. Lee,
4
202 F.3d 1227 (9th Cir. 2000) ............................................................................... 15
5
Abadin v. Marvel Entertainment, Inc.,
6
No. 09 Civ. 0715 (PAC), 2010 WL 1257519 (S.D.N.Y. Mar. 31, 2010) ....... 2, 4, 7
7
Alberghetti v. Corbis Corp.,
8
713 F. Supp. 2d 971 (C.D. Cal. 2010) ................................................................... 16
9
Ashcroft v. Iqbal,
10
129 S. Ct. 1937 (2009) ............................................................................................. 9
11
Balistreri v. Pacifica Police Dep't,
12
901 F.2d 696 (9th Cir. 1988) ................................................................................... 9
13
Bell Atlantic Corp. v. Twombly,
14
550 U.S. 544 (2007)................................................................................................. 9
15
Chance v. Pac-Tel Teletrac Inc.,
16
(9th Cir. 2001) 242 F.3d 1151 ............................................................................... 13
17
Comedy III Productions, Inc. v. Gary Saderup, Inc.,
18
25 Cal. 4th 387, 106 Cal. Rptr. 2d 126, 21 P.3d 797, 29 Media L. Rep. (BNA)
19
1897, 58 U.S.P.Q.2d 1823 (2001) ......................................................................... 16
20
Conerly v. Westinghouse Elec. Corp.,
21
623 F.2d 117 (9th Cir.1980) .................................................................................. 14
22
Daniels–Hall v. Nat'l Educ. Ass'n,
23
629 F.3d 992 (9th Cir. 2010) ................................................................................... 9
24
Data Processing Service v. Camp,
25
397 U.S. 150 (1970)............................................................................................... 10
26
Disney Enterprises, Inc. v. Entertainment Theatre Group, No. CIV.A.,
27
13-5570, 2014 WL 5483487 (E.D. Pa. 2014)...................................................... 2, 7
28
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1 Estate of Fuller v. Maxfield & Oberton Holdings, LLC,

2 906 F. Supp. 2d 997 (N.D. Cal. 2012) ................................................................... 17
3 E–Systems, Inc. v. Monitek, Inc.,
4 720 F.2d 604 (9th Cir. 1983) ................................................................................. 19
5 Fahmy v. JAY-Z,
6 et. al., 261 F.R.D. 180 (C.D. Cal. 2009)................................................................ 11
7 Frank v. United Airlines, Inc.,
8 216 F.3d 845 (9th Cir.2000) .................................................................................. 20
9 Hatchitt v. United States,
10 158 F.2d 754 (9th Cir. 1946) ........................................................................... 20, 21
11 Internet Specialties West, Inc.,

12 559 F.3d, fn.2 ......................................................................................................... 19
13 Jarrow Formulas, Inc. v. Nutrition Now, Inc.,
14 304 F.3d 829 (9th Cir. 2002) ................................................................................. 18
15 Kaffaga v. Estate of Steinbeck,
16 938 F.3d 1006 (9th Cir. 2019) ............................................................................... 20
17 Lee v. Marvel Enterprises, Inc.,
18 765 F. Supp. 2d 440 (S.D.N.Y. 2011) ................................................................. 2, 7
19 Levald v. City of Palm Desert,
20 998 F.2d 680 (9th Cir.1993) .................................................................................. 15
21 Linda R.S. v. Richard D.,
22 410 U.S. 614 (1973)............................................................................................... 10
23 Lugosi v. Universal Pictures,
24 25 Cal.3d 813 (1975) ............................................................................................. 12
25 Lujan v. Defenders of Wildlife,
26 504 U.S. 555 (1992)............................................................................................... 10
27 Miller v. Facebook, Inc.,
28 No. C 10-00264 WHA, 2010 WL 2198204 (N.D. Cal. May 28, 2010) .................. 9
-iv-
1 Minden Pictures, Inc. v. John Wiley & Sons, Inc.,

2 795 F.3d 997 (9th Cir. 2015) ................................................................................. 11
3 Owens v. Kaiser Found. Health Plan, Inc.,
4 244 F.3d 708 (9th Cir. 2001) ................................................................................. 20
5 Pannonia Farms, Inc. v. Re/Max Int'l, Inc.,
6 407 F.Supp.2d 41 (D.D.C.2005) ............................................................................ 22
7 Petroliam Nasional Berhad v. GoDaddy.com, Inc.,
8 897 F. Supp. 2d 856 (N.D. Cal. 2012) ................................................................... 13
9 Seven Arts Filmed Entm't Ltd. v. Content Media Corp. PLC,
10 733 F.3d 1251 (9th Cir. 2013) ..................................................................... 9, 14, 15
11 Silvers v. Sony Pictures Entertainment, Inc.,

12 402 F.3d 881 (9th Cir. 2005) ........................................................................... 11, 12
13 Stan Lee Media Inc. v. Lee,
14 No. 2:07-CV-00225-SVW, 2012 WL 4048871 (C.D. Cal. 2012) .......................... 5
15 Stan Lee Media, Inc. v. Lee,
16 585 F. App'x 597 (9th Cir. 2014) .......................................................................... 21
17 Stan Lee Media, Inc. v. Walt Disney Co.,
18 No. 12-CV-2663-WJM-KMT, 2013 WL 4776026 (D. Colo. Sept. 5, 2013). passim
19 Stan Lee Media, Inc. v. Walt Disney Company,
20 No. 12-CV-2663-WJM-KMT, 2014 WL 3767191 (D. Colo. July 31, 2014) ..... 2, 3
21 Starr v. Baca,
22 652 F.3d 1202 (9th Cir. 2011) ................................................................................. 9
23 Super-Krete Int'l, Inc. v. Sadleir,
24 712 F. Supp. 2d 1023 (C.D. Cal. 2010) ................................................................. 18
25 Tileston v. Ullman,
26 318 U.S. 44 (1943)................................................................................................. 10
27 Tillamook Country Smoker, Inc. v. Tillamook County Creamery Ass'n,
28 465 F.3d 1102 (9th Cir. 2006) ......................................................................... 18, 19
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1 Timed Out, LLC v. Youabian, Inc.,

2 229 Cal.App.4th 1001 ............................................................................................ 12
3 U.S. v. Paul,
4 No. 2:01-cr-00636, Doc. 116, Superseding Indictment, 2004 WL 5745186
5 (E.D.N.Y., Aug 2, 2004)...................................................................................... 4, 5
6 United States v. Raines,
7 362 U.S. 17 (1960)................................................................................................. 10
8 Upper Deck Authenticated, Ltd. v. CPG Direct,
9 971 F.Supp. 1337 (S.D. Cal. 1997) ....................................................................... 12
10 Warth v. Seldin,
11 422 U.S. 490 (1975)............................................................................................... 10

12 Western Radio Servs. Co. v. Glickman,
13 123 F.3d 1189 (9th Cir.1997) ................................................................................ 20
14 Yeager v. Bowlin,
15 693 F.3d 1076, 40 Media L. Rep. (BNA) 2491 (9th Cir. 2012) ............................ 16
16 Youngevity International, Corp. v. Smith,
17 224 F. Supp. 3d 1022 (S.D. Cal. 2016) ................................................................. 17
18 Zuill v. Shanahan,
19 80 F.3d 1366 (9th Cir. 1996) ........................................................................... 14, 15
20
Statutes
21
15 U.S.C. § 1125(d)(1)(A) ................................................................................... 13, 18
22
15 U.S.C. §§ 1114, 1125(d)(1)(a) .............................................................................. 13
23
15 U.S.C. §§ 1125(a)-(d) ........................................................................................... 18
24
17 U.S.C. § 501(b) ..................................................................................................... 11
25
17 U.S.C. § 507(b) ............................................................................................... 14, 15
26
28 U.S.C. §§ 2201............................................................................................. i, 11, 14
27
Cal. Civil Code §§ 3344 and 3344.1 ................................................................... 12, 16
28
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1 Cal. Labor Code § 2855(a) ................................................................................ 2, 7, 21

2
Rules
3
9th Cir. R. 36-3 .......................................................................................................... 20
4
Fed. R. Civ. P. 8(a)(2).................................................................................................. 9
5
Fed. R. Civ. P. 11 ................................................................................................... 3, 22
6
Fed. R. Civ. P. 12(b)(6) ......................................................................................... 1, 22
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 COMES NOW Defendant POW! ENTERTAINMENT, INC. (“POW!” or

2 “Defendant”) and hereby moves this Court for entry of an Order Dismissing,
3 without leave to amend, the Complaint filed by Plaintiff JOAN CELIA LEE (“JC
4 Lee” or “Plaintiff”), and each claim set forth therein pursuant to Fed. R. Civ. P.
5 12(b)(6) and in support thereof states as follows:
6 MEMORANDUM OF POINTS AND AUTHORITIES
7 I. INTRODUCTION
8 Plaintiff’s complaint is so fatally flawed that it is difficult to decide where to
9 begin. The gravamen of Plaintiff’s complaint is a 20+ year old contract from 1998
10 (the “1998 Agreement”): an employment agreement between Stan Lee and the since
11 bankrupt Stan Lee Media, Inc.1 (“SLMI”); a contract that Plaintiff is neither a party to
12 nor has any third-party interest in; a contract that Stan Lee terminated and repudiated
13 in 2001; and a contract that at least five federal courts have since found to be
14 unenforceable.
15 First, Plaintiff has no standing to bring the claims alleged in the Complaint. In a
16 haphazard and confusing fashion, Plaintiff’s Complaint seeks to enforce the purported
17 intellectual property rights of third-party SLMI (a corporation that is not a party to
18 this suit). Meanwhile, Plaintiff fails to assert any fact that would actually give her the
19 right to bring these claims on behalf of SLMI.
20 Second, all of Plaintiff’s claims, being nearly two decades old, are barred by
21 the applicable statutes of limitation. Plaintiff asks this Court for declaratory relief on
22 SLMI’s alleged copyright claims, but those claims were untimely more than fifteen
23 years ago. Similarly, she asks for declaratory relief on SLMI’s purported publicity
24 rights, but those claims are also more than fifteen years past due. Meanwhile,
25 Plaintiff’s claim of cybersquatting is not only untimely, but borders on the bizarre, as
26
27 1
While Plaintiff’s complaint refers to the entity as “Stan Lee Entertainment, Inc.,” as explained
28 below, that entity was shortly merged into and became “Stan Lee Media, Inc.” in 1999, which then
filed for bankruptcy in 2001.
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1 Plaintiff makes the inexplicable argument that POW!’s nine-year-old website, based
2 on its own federally registered trademark, somehow infringes upon SLMI’s long
3 terminated and abandoned common law rights from 20+ years ago. None of these
4 claims are even remotely sustainable.
5 Third and finally, Plaintiff’s claims have already been fully and finally
6 adjudicated in multiple federal lawsuits, all of which were resolved against the
7 position argued by the Plaintiff. The 1998 Agreement upon which Plaintiff bases her
8 entire case was conclusively found to be unenforceable by the United States District
9 Court for the Southern District of New York as well as multiple other federal courts.
10 Abadin v. Marvel Entertainment, Inc., No. 09 Civ. 0715 (PAC), 2010 WL 1257519
11 (S.D.N.Y. Mar. 31, 2010) (holding the 1998 Agreement was terminated by Stan Lee
12 in 2001 and the statute of limitations to challenge that termination had lapsed, and
13 further finding that the 1998 Agreement, if not expressly terminated, expired in 2005
14 pursuant to Cal. Labor Code § 2855(a)) (appeal dismissed for failure to prosecute
15 Abadin v. Marvel Entertainment, Inc., No. 10–1717 (2d Cir. 2010)), RJN Ex “A.”
16 Indeed, the enforceability of that 1998 Agreement was the subject of no fewer
17 than five federal lawsuits, all of which ultimately held the agreement to be
18 unenforceable. Stan Lee Media, Inc. v. Walt Disney Co., No. 12-CV-2663-WJM-
19 KMT, 2013 WL 4776026 (D. Colo. Sept. 5, 2013), aff'd, 774 F.3d 1292 (10th Cir.
20 2014); Lee v. Marvel Enterprises, Inc., 765 F. Supp. 2d 440, 446-448 (S.D.N.Y.
21 2011), aff'd, 471 F. App'x 14 (2d Cir. 2012); Disney Enterprises, Inc. v.
22 Entertainment Theatre Group, No. CIV.A. 13-5570, 2014 WL 5483487, at *9 (E.D.
23 Pa. 2014); Stan Lee Media, Inc. v. Walt Disney Company, No. 12-CV-2663-WJM-
24 KMT, 2014 WL 3767191, at *2 (D. Colo. July 31, 2014), RJN, Exs. “B”, “C”, “D”,
25 “E”, “F”, “G”, “H”, and “I.” Moreover, the 2nd, 9th, and 10th Circuit Courts of
26 Appeal have all affirmed the District Court decisions finding the 1998 Agreement
27 unenforceable. Id. This very Court, the Central District of California, has already
28 held that the claims presented in the Complaint are barred under the doctrine of
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1 res judicata. Id.

2 The issues and claims raised in this case have all been vociferously litigated
3 and relitigated ad nauseam. To bring these legally unjustifiable claims before this
4 Court again, after they have been struck down so many times before, is a grossly
5 selfish and inconsiderate waste of this Court’s time and resources. As such, movant
6 POW! Entertainment, Inc. respectfully requests that the Court dismiss, without leave
7 to amend, Plaintiff’s complaint in its entirety and further requests an award of
8 sanctions pursuant to Fed. R. Civ. P. 11, expressly incorporating Defendant’s motion
9 for sanctions previously filed with this court.
10 II. FACTUAL AND PROCEDURAL BACKGROUND
11 On September 26, 2019, Plaintiff filed her Complaint in the present case, its
12 claims based entirely upon an employment agreement from 1998 – a contract that
13 Plaintiff is not a party to and has no standing to enforce; and a contract that has been
14 fully and finally adjudicated by this Court, and at least four other federal courts, as
15 legally unenforceable.
16 A. THE 1998 AGREEMENT.
17 On October 13, 1998, the legendary comic book writer, editor, and publisher,
18 Stan Lee, in conjunction with his then-associate Peter Paul, incorporated a Delaware
19 company known at the time as Stan Lee Entertainment, Inc. (“SLE”). At that time,
20 Stan Lee entered into an employment agreement with this new entity (the “1998
21 Agreement”), in which Stan Lee agreed to serve as “Chairman, Publisher, and
22 Chief Creative Officer,” in exchange for an annual salary of $250,000 plus bonuses
23 and fringe benefits. See Employment Agreement, at ¶¶ 2-3, RJN, Ex “O.” The 1998
24 Agreement included a customary provision whereby Stan Lee assigned to the
25 company the intellectual property rights associated with any works he might create
26 while in the company’s employ. Id. at ¶ 4. While the term of the 1998 Agreement
27 was specified as Stan Lee’s remaining lifetime, a federal court later ruled that, since
28 it was a personal service contract governed by California law, its term was
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1 statutorily limited to seven (7) years. Abadin v. Marvel Entertainment, Inc., No. 09
2 Civ. 0715 (PAC), 2010 WL 1257519 (S.D.N.Y. Mar. 31, 2010) (holding 1998
3 Agreement terminated by Stan Lee in 2001 and statute of limitations to challenge
4 termination lapsed, and further holding 1998 Agreement, if not terminated, expired
5 in 2005 pursuant to Cal. Labor Code § 2855a) (appeal dismissed for failure to
6 prosecute Abadin v. Marvel Entertainment, Inc., No. 10–1717 (2d Cir. 2010)), RJN,
7 Ex. “A”; See also Id. at ¶ 1. As noted by the court, “[t]here can be no attempt to
8 enforce this contract beyond the statutory term.” Id.
9 B. CONVERSION FROM STAN LEE ENTERTAINMENT TO STAN LEE
10 MEDIA.
11 Just a few months after forming SLE, on January 14, 1999, Peter Paul
12 founded another Delaware corporation, Stan Lee Media, Inc. (“SLMI (DE)”), which
13 he later merged with SLE on April 14, 1999. Then, just a few months later, Stan
14 Lee and Peter Paul took control of an existing publicly traded Colorado corporation,
15 then named Boulder Capital Opportunities, Inc., later renaming it as “Stan Lee
16 Media, Inc.” (“SLMI (CO)”). See Form SC14F1, filed on behalf of Boulder Capital
17 Opportunities, Inc., dated June 28, 1999, RJN, Ex “P” (SLMI (CO) and SLMI (DE)
18 shall be collectively referred to herein as “SLMI”). See 8-K of Boulder Capital
19 Opportunities, Inc. dated July 23, 1999, RJN, Ex “Q.”
20 C. PETER PAUL’S ILLEGAL ACTS AND DEMISE OF STAN LEE
21 MEDIA.
22 Peter Paul, with the aid of a handful of shareholders, hatched an illegal
23 scheme to prop-up the stock price of SLMI while borrowing millions against the
24 stock, effectively stripping all value out of the company for his own personal gain
25 while concealing this loss from the public markets. U.S. v. Paul, No. 2:01-cr-00636,
26 Doc. 116, Superseding Indictment, 2004 WL 5745186 (E.D.N.Y., Aug 2, 2004). See
27 RJN, Ex “J.” As a direct result of Peter Paul’s illegal conduct, SLMI was forced into
28 bankruptcy on February 16, 2001.
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1 While Plaintiff’s Complaint makes the conclusory and wholly unsupported

2 claim that the demise of SLMI was somehow the result of deliberate bad business
3 decisions in the midst of the dot.com crash, the true cause of the company’s demise
4 is well documented. See e.g., Id. at ¶ 13 (“By borrowing on margin, Paul and
5 Stephen M. Gordon, with the assistance of Jonathan Gordon and Pittsburg,
6 effectively liquidated large blocks of the stock without actually selling the stock into
7 the market.”). Peter Paul, despite having fled to Brazil to evade arrest, was
8 eventually brought into custody, charged, pleaded guilty, and was sentenced to ten
9 (10) years in federal prison. U.S. v. Paul, No. 2:01-cr-00636, Doc. 232, Judgment
10 (E.D.N.Y., Jun. 26, 2009). See RJN, Ex “K.”
11 D. STAN LEE’S TERMINATION OF THE 1998 AGREEMENT.

12 “In January 2001 [before SLMI filed for bankruptcy] Lee wrote to SLMI
13 claiming SLMI was in complete breach of the salary and benefit provisions, inter
14 alia, of the 1998 agreement so that he was justified in terminating the agreement.”
15 Abadin at *6, RJN, Ex. “A.” While various parties, acting on behalf of SLMI, tried
16 years later to argue that Stan Lee’s termination of the 1998 Agreement was
17 somehow improper, those arguments were all foreclosed by the ruling of the
18 Southern District of New York, in which that court held the statute of limitations to
19 challenge Lee’s termination of the 1998 Agreement had run as of 2005. Id. That
20 court’s holding was then later cited by this Court, in its ruling that the
21 enforceability of the 1998 Agreement (or lack thereof) had been fully and
22 finally adjudicated on the merits, thereby precluding further claims in relation
23 thereto under the doctrine of res judicata. Stan Lee Media Inc. v. Lee, No. 2:07-
24 CV-00225-SVW, 2012 WL 4048871, at *3 (C.D. Cal. 2012), RJN, Ex. “D”, aff'd,
25 585 F. App’x 597 (9th Cir. 2014), RJN, Ex. “G.” Then, both of the foregoing court
26 rulings were cited by the District of Colorado, when it later held that further efforts
27 to enforce the 1998 Agreement were barred by the doctrine of Collateral Estoppel.
28 Stan Lee Media, Inc. v. Walt Disney Co., No. 12-CV-2663-WJM-KMT, 2013 WL
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1 4776026 (D. Colo. Sept. 5, 2013), RJN, Ex. “E”, aff'd, 774 F.3d 1292 (10th Cir.
2 2014), RJN, Ex. “I.”
3 E. THE FORMATION AND OPERATION OF POW!
4 ENTERTAINMENT.
5 On November 8, 2001, nearly ten months after terminating his relationship
6 with SLMI, Stan Lee partnered with Gill Champion and Arthur Lieberman, to form
7 POW! Entertainment, LLC (“POW!”), and over the next seventeen (17) years, Stan
8 Lee would assign rights in his name and likeness to POW! on multiple occasions.
9 See Compl. ¶ 18 (noting that Stan Lee assigned and re-assigned to POW! rights in
10 his name and likeness on “no less than 6 occasions”). While some of these
11 assignments were generally worded, others expressly included posthumous rights to

12 Stan Lee’s name, likeness, signature, voice, and unique personal characteristics, as
13 well as granting to POW! all copyrights in Lee’s writings from 2001 onward. Also,
14 in 2006, 2007, 2008, and 2011, Stan Lee executed multiple consents of use to be
15 filed with the United States Trademark and Patent Office (“USPTO”), specifically
16 granting to POW! the right to use Stan Lee’s name and signature in commerce and
17 register the corresponding trademarks. See Consent to Use, RJN, Ex. “L.”
18 F. PETER PAUL’S INSATIABLE APPETITE FOR FRIVOLOUS AND
19 DUPLICATIVE LITIGATION.
20 Starting in 2007, Peter Paul orchestrated a series of court cases and other
21 related legal actions in an effort to resuscitate the 1998 Agreement – all of which
22 failed:
23 1. On July 9, 2007, SLMI filed suit against Stan Lee and POW!
24 Entertainment, LLC in this very Court, the Central District of California, seeking to
25 revive the 1998 Agreement by alleging what were essentially the same claims as
26 those presented by Plaintiff in the present case. See RJN, Ex “D.”
27 2. On January 26, 2009, SLMI shareholders Jose Abadin and
28 Christopher Belland filed suit derivatively on behalf of SLMI in the Southern
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1 District of New York against Marvel Entertainment, Inc. (“Marvel”), seeking to

2 enforce the 1998 Agreement and alleging that, under the 1998 Agreement, SLMI
3 owned rights in a Stan Lee’s name and likeness as well as a host of Marvel
4 properties. See RJN, Ex “A.”
5 3. On July 26, 2010, SLMI moved to intervene in the case of Stan
6 Lee v. Marvel Entertainment, once again asserting rights under the 1998 Agreement.
7 See RJN, Ex “M.”
8 4. On October 9, 2012, SLMI filed yet another suit, this time in the
9 District of Colorado, seeking to enforce its purported rights under the 1998
10 Agreement against Walt Disney Company. See RJN, Ex “E.”
11 5. On January 7, 2014, SLMI filed a motion to intervene in the case

12 of Disney Enterprises, Inc. v. Entertainment Theater Group, again claiming that it
13 had rights to certain intellectual properties under the 1998 Agreement. See RJN, Ex
14 “N.”
15 While Peter Paul was not a direct litigant in any of these lawsuits, it was
16 widely acknowledged and understood that he was the chief architect of the
17 litigation. See e.g., RJN, Ex. “A” at *5 n. 4, RJN, Ex. “D” at *5.
18 Predictably, each and every one of the foregoing lawsuits ended badly for
19 SLMI, Paul, and its related parties. The Courts repeatedly struck down SLMI’s
20 claims and found the 1998 Agreement to be wholly unenforceable:
21 1. First, in the case of Abadin v. Marvel before the Southern
22 District of New York, Judge Paul Crotty found that (1) the 1998 Agreement was
23 terminated by Stan Lee in 2001, and the statutory period in which to challenge that
24 termination had lapsed; and (2) even if it hadn’t been terminated in 2001, as a
25 personal services contract, it would have expired by its own terms by 2005, pursuant
26 to Cal. Labor Code § 2855(a). RJN, Ex. “A.” While Abadin and the other plaintiffs
27 initially sought to appeal Judge Crotty’s decision, the appeal was ultimately
28 dismissed for failure to prosecute. Id.
-7-
1 2. Then, in the case of Stan Lee v. Marvel, also before the Southern
2 District of New York, Judge Robert Sweet again held that the 1998 Agreement was
3 unenforceable, citing Judge Crotty’s opinion in the Abadin case as a final judgment
4 on the merits, thereby rendering the matter res judicata. RJN, Ex. “B.” This time,
5 SLMI appealed to the Second Circuit, where the lower court’s decision was
6 affirmed. Id.
7 3. Then, in the case of SLMI v. Lee, before this Court, the Central
8 District of California, Judge Stephen Wilson also found that the Abadin decision had
9 fully adjudicated SLMI’s claims under the 1998 Agreement, thereby rendering the
10 matter res judicata. RJN, Ex. “B” at *4. Again, SLMI appealed, this time to the
11 Ninth Circuit, and again the decision was affirmed. RJN, Ex. “G.”
12 4. Then, in the case of SLMI v. Disney, before the District of
13 Colorado, Judge William Martinez, noting the prior court decisions, held that
14 SLMI’s claims under the 1998 Agreement were barred by the doctrine of collateral
15 estoppel. RJN, Ex. “E” at *4. Again, SLMI appealed, this time to the Tenth Circuit,
16 and again the decision was affirmed. RJN, Ex. “I.”
17 5. Then, in the case of Disney v. Entertainment Theater Group,
18 before the Eastern District of Pennsylvania, Judge Jeffrey Schmehl, also noting the
19 many prior decisions on the issue, sided with the opinion of Judge Martinez in the
20 District of Colorado, finding that SLMI’s claims under the 1998 Agreement were
21 barred under the doctrine of collateral estoppel. RJN, Ex. “H” at *5.
22 Time and again, SLMI, under Paul’s direction, sought to resurrect the 1998
23 Agreement, and each and every time the courts struck down such efforts with
24 increasing forcefulness – even going so far as to specifically label the claims as
25 “frivolous.” RJN, Ex. “F” at *2. Now, in the present case, Plaintiff seeks to once
26 again resurrect these previously adjudicated claims.
27 ///
28 ///
-8-
1 III. LEGAL STANDARD

2 The Federal Rules of Civil Procedure require that a plaintiff’s complaint
3 include a short and plain statement of the claim showing that the pleader is entitled
4 to relief. Fed. R. Civ. P. 8(a)(2). The United States Supreme Court’s opinions in Bell
5 Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct.
6 1937 (2009), confirmed that, although detailed factual allegations are not required,
7 satisfying Rule 8(a)(2) requires the complaint plead sufficient factual matter,
8 accepted to be true, to state a claim to relief that is plausible on its face. Iqbal, 129
9 S. Ct. at 1949 (citing Twombly, 550 U.S. at 555, 570). While the Court accepts as
10 true “all well-pleaded allegations of material fact,” the Court is not “required to
11 accept as true allegations that contradict exhibits attached to the Complaint or

12 matters properly subject to judicial notice, or allegations that are merely conclusory,
13 unwarranted deductions of fact, or unreasonable inferences.” Seven Arts Filmed
14 Entm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir. 2013);
15 Daniels–Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).
16 Dismissal can be based on the lack of a cognizable legal theory or the absence
17 of sufficient facts alleged under a cognizable legal theory. Balistreri v. Pacifica
18 Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988) A pleading that offers only labels
19 and conclusions or a formulaic recitation of the elements of a cause of action is
20 insufficient. Iqbal 556 129 S. Ct. at 1949. The allegations made in a complaint must
21 be both "sufficiently detailed to give fair notice to the opposing party of the nature
22 of the claim so that the party may effectively defend against it" and "sufficiently
23 plausible" such that "it is not unfair to require the opposing party to be subjected to
24 the expense of discovery." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). For
25 example, courts have applied Iqbal/Twombly to dismiss copyright infringement
26 claims that merely state the elements of the claims and legal conclusions without the
27 underlying facts. See Miller v. Facebook, Inc., No. C 10-00264 WHA, 2010 WL
28 2198204, at *9 (N.D. Cal. May 28, 2010).
-9-
1 IV. ARGUMENT
2
A. PLAINTIFF LACKS STANDING TO BRING EACH AND EVERY
3
CLAIM ADVANCED IN THE COMPLAINT
4
5 Article III of the U.S. Constitution limits the authority of the federal courts to
6 hearing “cases” and “controversies.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
7 559 (1992). In order for a dispute to be within the jurisdiction of a federal court, a
8 plaintiff must have standing and this “irreducible constitutional minimum” contains
9 three elements: (1) plaintiff has suffered a concrete injury; (2) that injury is fairly
10 traceable to actions of the defendant; and (3) it must be likely—not merely
11 speculative—that the injury will be redressed by a favorable decision. Id. at 560–

12 61. Moreover, it is the plaintiff’s burden to establish standing. Id. at 561.
13 Additionally, “standing imports justiciability: whether the plaintiff has made out a
14 ‘case or controversy’ between himself and the defendant within the meaning of Art.
15 III” and “is the threshold question in every federal case[.]” Warth v. Seldin, 422 U.S.
16 490, 498 (1975). To that end, the jurisdiction of a federal court “can be invoked only
17 when the plaintiff himself has suffered ‘some threatened or actual injury resulting
18 from the putatively illegal action . . . .’” Id. at 499 (citing Linda R.S. v. Richard D.,
19 410 U.S. 614, 617 (1973)); See also Data Processing Service v. Camp, 397 U.S.
20 150, 151—154 (1970). “[T]he plaintiff generally must assert his own legal rights
21 and interests, and cannot rest his claim to relief on the legal rights or interests of
22 third parties. Id. (citing Tileston v. Ullman, 318 U.S. 44 (1943)); See also United
23 States v. Raines, 362 U.S. 17 (1960).
24 Here, Plaintiff’s complaint seeks to enforce the purported rights of third party
25 SLMI (who is not present in this case) and fails to offer any justification, reasoning,
26 or explanation as to why or how it the Plaintiff holds any interest that affords her
27 standing to bring suit on behalf of SLMI.
28
-10-
1 i. PLAINTIFF LACKS STANDING TO REQUEST

2 DECLARATORY RELIEF AS TO THE OWNERSHIP OF THE
3 SUBJECT INTELLECTUAL PROPERTY
4 For Plaintiff to seek declaratory relief under 28 U.S.C. § 2201 et. seq. with
5 respect to ownership in intellectual property, she must first assert an exclusive right
6 in the subject intellectual property. However, Plaintiff fails to assert any such right
7 in this case. On the contrary, she claims to be bringing the present suit to defend the
8 interests of non-party SLMI. As such, she fails to meet the threshold for standing.
9 “To be entitled to sue for copyright infringement, the plaintiff must be the
10 ‘legal or beneficial owner of an exclusive right under a copyright.’” See 4 Business
11 and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig

12 ed.) (West Group & ABA 1998) (“If a claimant is not a proper owner of copyright
13 rights, then it cannot invoke copyright protection stemming from the exclusive
14 rights belonging to the owner, including infringement of the copyright.”).” Silvers v.
15 Sony Pictures Entertainment, Inc., 402 F.3d 881, 884 (9th Cir. 2005); See also 17
16 U.S.C. § 501(b); Minden Pictures, Inc. v. John Wiley & Sons, Inc., 795 F.3d 997,
17 1002 (9th Cir. 2015); Fahmy v. JAY-Z, et. al., 261 F.R.D. 180 (C.D. Cal. 2009).
18 However, nowhere in the Complaint does Plaintiff allege any facts to
19 demonstrate how she, or the trust that she purportedly serves, has any ownership
20 rights to the subject intellectual property whatsoever, let alone an exclusive right
21 sufficient to enable her to assert the present claim. While Plaintiff asserts that she is
22 the successor in interest to Stan Lee, she does not argue that Stan Lee (or Plaintiff as
23 his successor) owns any rights in the underlying intellectual property, instead
24 insisting that Stan Lee assigned those rights to SLMI under the 1998 Agreement.
25 See Compl. ¶¶ 2, 10, 14 passim.
26 In one instance, Plaintiff appears to argue that she is, as Stan Lee’s successor,
27 somehow obligated to bring this suit to defend SLMI’s rights. See Compl. ¶ 28.
28 However, that over-reaching argument in no way meets the actual legal standard for
-11-
1 establishing standing in copyright cases. See e.g., Silvers, 402 F.3d at 884.
2 Plaintiff’s assertion that she somehow inherited an obligation to prosecute the
3 copyright claims of third party SLMI is simply wrong.
4 In sum, there can be no doubt that Plaintiff lacks standing to bring the current
5 claim, because even if the 1998 Agreement were somehow enforceable (even after
6 being struck down by numerous courts), that agreement simply did not grant
7 Plaintiff the exclusive rights necessary to sustain a copyright claim.
8 ii. PLAINTIFF LACKS STANDING TO REQUEST
9 DECLARATORY RELIEF FOR THE PURPORTED RIGHTS OF
10 PUBLICITY
11 For a party to seek declaratory relief in publicity rights2 that party must assert
12 some present, legally recognized right in the subject intellectual property; however,
13 in this case, Plaintiff has failed to assert any such rights on her own behalf.
14 While California law recognizes a third party’s standing to assert another’s
15 rights of publicity, that standing is only recognized in very limited circumstances.
16 See Upper Deck Authenticated, Ltd. v. CPG Direct, 971 F.Supp. 1337 (S.D. Cal.
17 1997) (finding that a non-exclusive licensee did not have standing to assert another’s
18 publicity rights); See also Timed Out, LLC v. Youabian, Inc., 229 Cal.App.4th
19 1001, 1011 (holding that an assignee of the “right to sue” for misappropriation of
20 right of publicity had standing to bring suit); See also generally Lugosi v. Universal
21 Pictures, 25 Cal.3d 813 (1975).
22 Here, Plaintiff is not an assignee or a licensee of any kind, whether exclusive
23 or non-exclusive, but rather, the Trustee of a trust in which none of Stan Lee’s
24 publicity rights were ever conveyed. By seeking declaratory relief, Plaintiff asks this
25 Court to extend the doctrine of standing further than any court applying California
26
27 2
Here, the 1998 Agreement was expressly governed by California law and therefore, right of
28 publicity rights would be governed under Cal. Civil Code §§ 3344 and 3344.1 as well as
California common law.
-12-
1 law has done before (i.e. allowing a plaintiff to prosecute a third party’s purported
2 publicity rights even where plainly, by her own admission, holds no legally
3 cognizable interest in those publicity rights). Accordingly, Plaintiff has no standing
4 to assert this cause of action, and it must be dismissed.
5 iii. PLAINTIFF LACKS STANDING TO ASSERT A CLAIM FOR
6 CYBERSQUATTING UNDER 15 U.S.C. § 1125(d)
7 To bring a claim for cybersquatting under 15 U.S.C. § 1125(d), the claimant
8 must allege that he or she owns some present legal right in the mark being infringed
9 upon, however, Plaintiff fails to assert any such rights. In fact, under a close reading
10 of the Complaint, it is difficult to ascertain, what, if any, legal rationale is behind
11 Plaintiff’s pursuit of her cybersquatting claim. The subject websites

12 (therealstanlee.com, stanleepresents.com, and stanlee.com) are all several years old
13 and are entirely based upon Defendant’s federally registered trademarks. In fact,
14 Defendant has owned and made commercial use of the mark “stan lee presents” for
15 more than a decade. Meanwhile, Plaintiff fails to assert any claim that she (or even
16 SLMI) is currently making use of these marks or any variation thereof.
17 “Cybersquatting” is the bad faith registration of a domain name that is
18 identical or confusingly similar to another's distinctive mark. 15 U.S.C. §
19 1125(d)(1)(A); See also Petroliam Nasional Berhad v. GoDaddy.com, Inc., 897 F.
20 Supp. 2d 856, 863 (N.D. Cal. 2012), aff'd, 737 F.3d 546 (9th Cir. 2013). To sustain
21 a cause of action for cybersquatting, the claimant must establish that she is the
22 owner of the mark by alleging she engaged in “commercial use” of the mark. See 15
23 U.S.C. §§ 1114, 1125(d)(1)(a); See also, Chance v. Pac-Tel Teletrac Inc. (9th Cir.
24 2001) 242 F.3d 1151, 1157.
25 Here, however, Plaintiff makes no effort to establish any facts that might
26 suggest she holds an ownership interest in any of the subject marks, nor does she
27 aver that she has made any use of the marks in commerce. In fact, aside from some
28 passing references to trademarks (typically included in conclusory legal statements),
-13-
1 the Complaint never sets out any facts that aver to use of the marks in commerce by
2 her or SLMI. While the Complaint alleges that Stan Lee made a general assignment
3 of trademarks to SLMI under the 1998 Agreement (see Compl. ¶¶ 2, 28, and 52),
4 there is no mention anywhere that SLMI made any commercial use of those marks
5 in the last twenty plus (20+) years. As such, even if the 1998 Agreement were
6 legally enforceable (which it is not), any trademarks granted to SLMI thereunder
7 would have long been abandoned.
8 As such, Plaintiff fails to allege any facts that would give her standing to
9 pursue the Cybersquatting claim alleged in her complaint.
10
B. EACH AND EVERY CLAIM ASSERTED IN PLAINTIFF’S
11
COMPLAINT IS BARRED FOR BEING UNTIMELY
12
Even if Plaintiff could somehow overcome the fact that she lacks standing to
13
assert the claims presented in this case, each claim (dating back more than twenty
14
years) has long past any period of justiciability. A statute-of-limitations defense, if
15
“apparent from the face of the complaint,” may properly be raised in a motion to
16
dismiss. Seven Arts Filmed Entm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251,
17
1254 (9th Cir. 2013), citing Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119
18
(9th Cir.1980).
19
20 i. PLAINTIFF’S CLAIM FOR DECLARATORY RELIEF UNDER
21 28 U.S.C. §§ 2201 ET. SEQ. IS BARRED BY THE STATUTE OF
22 LIMITATIONS
23 Pursuant to 17 U.S.C. § 507(b), all claims arising in copyright are subject to a
24 three (3) year statute of limitations. The statute reads “[n]o civil action shall be
25 maintained under the provisions of this [Title 17 of the United States Code] unless it
26 is commenced within three years after the claim accrued.” 17 U.S.C. § 507(b); See
27 also Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996), as amended (June 14,
28 1996). Meanwhile, “[a] claim for declaratory relief is subject to a statute of
-14-
1 limitations generally applicable to civil claims.” 80 F.3d 1366, 1369-70, citing

2 Levald v. City of Palm Desert, 998 F.2d 680, 688 (9th Cir.1993). Where, as in the
3 present case, “creation rather than infringement is the gravamen of an authorship
4 claim, the claim accrues on account of creation, not subsequent infringement, and is
5 barred three years from ‘plain and express repudiation’ of authorship.” Seven Arts
6 Filmed Entm't Ltd. v. Content Media Corp. PLC, 733 F.3d 1251, 1254 (9th Cir.
7 2013), quoting Aalmuhammed v. Lee, 202 F.3d 1227, 1230–31 (9th Cir. 2000).
8 In the present case, any rights in the subject copyrights arising from the 1998
9 Agreement were repudiated in 2001, when Stan Lee expressly terminated the 1998
10 Agreement and thereafter assigned all right and title in his further writings to POW!.
11 The foregoing facts conclusively establish the expiration of the applicable statutory
12 period would have occurred nearly sixteen (16) years ago, in 2004, three (3) years
13 after Stan Lee’s termination of the 1998 Agreement.
14 Plaintiff cannot simply unwind the last two decades of history and suddenly
15 claim ownership in literary works that Stan Lee openly, willingly, and for good
16 reason assigned to POW! nearly two decades ago. To allow the Plaintiff to reopen
17 these settled issues of ownership would not only plainly violate the statute of
18 limitations set forth in 17 U.S.C. § 507(b), but also contradict the express wishes of
19 Stan Lee.
20 If Stan Lee had sought to assert ownership of any of the copyrights that he
21 had previously assigned to POW!, then, pursuant to 17 U.S.C. § 507(b), he would
22 have had to do so by no later than 2004. However, Stan Lee didn’t do that. Instead,
23 for more than a decade, he repeatedly assigned and re-assigned all rights in his
24 literary works to POW!, reiterating his express intent that POW! and its managers be
25 put in charge of maintaining and cultivating Stan Lee’s creative legacy. As Plaintiff
26 even acknowledges in the Complaint, Stan Lee assigned these rights to POW! on no
27 fewer than six (6) separate occasions over the course of seventeen (17) years. See
28 Compl. ¶ 18. Meanwhile, Stan Lee openly and consistently asserted, even in open
-15-
1 court on multiple occasions, that he terminated the 1998 Agreement (the very
2 agreement that Plaintiff now tries to rely upon) in 2001.
3 For the foregoing reasons, Plaintiff’s claim for declaratory relief sounding in
4 Copyright law is clearly barred by the applicable statute of limitations.
5
ii. PLAINTIFF’S CLAIM FOR DECLARATORY RELIEF UNDER
6
RIGHTS OF PUBLICITY IS BARRED BY THE STATUTE OF
7
LIMITATIONS
8
Similar to Plaintiff’s prayer for declaratory relief sounding in Copyright law,
9
the claim for ownership of Stan Lee’s publicity rights is also barred by the statute of
10
limitations.
11
The 1998 Agreement, upon which Plaintiff relies, was explicitly governed by
12
California law. Therefore, to the extent that the 1998 Agreement contemplated any
13
assignment of Stan Lee’s publicity rights (as alleged by the Plaintiff), such
14
assignment would be governed by Cal. Civil Code §§ 3344, 3344.1 and California
15
common law. Moreover, any claim for violation of such publicity rights would need
16
to be made pursuant to those statutes or to California’s common law action for
17
misappropriation of the right of publicity. Comedy III Productions, Inc. v. Gary
18
Saderup, Inc., 25 Cal. 4th 387, 391, 106 Cal. Rptr. 2d 126, 21 P.3d 797, 29 Media L.
19
Rep. (BNA) 1897, 58 U.S.P.Q.2d 1823 (2001) (“In this state the right of publicity is
20
both a statutory and a common law right.”). To that end, the federal courts in
21
California, in recent history, have repeatedly found that California law dictates a
22
two-year statute of limitations to actions related to publicity rights, whether based
23
on the common law right or statute. Alberghetti v. Corbis Corp., 713 F. Supp. 2d
24
971, 976 (C.D. Cal. 2010), aff'd in part, rev'd in part and remanded, 476 Fed. Appx.
25
154 (9th Cir. 2012) (Court of appeals: “The district court properly granted summary
26
judgment to [defendant] Corbis on the ground that the [plaintiffs'] claims were
27
barred by the two-year statute of limitations.”); Yeager v. Bowlin, 693 F.3d 1076, 40
28
Media L. Rep. (BNA) 2491 (9th Cir. 2012), for additional opinion, see, 495 Fed.
-16-
1 Appx. 780 (9th Cir. 2012) (Both common law and statutory right of publicity suits
2 are subject to a two year statute of limitations.); Estate of Fuller v. Maxfield &
3 Oberton Holdings, LLC, 906 F. Supp. 2d 997 (N.D. Cal. 2012) (two year statute
4 applies to statutory post mortem claim). Furthermore, under California law, when a
5 right of publicity claim is premised on a license by the owner, the statute of
6 limitations begins to run on the date such license was terminated. Youngevity
7 International, Corp. v. Smith, 224 F. Supp. 3d 1022, 1027 (S.D. Cal. 2016),
8 modified on reconsideration, 2016 WL 7626585 (S.D. Cal. 2016).
9 Here, any rights in Stan Lee’s likeness arising from the 1998 Agreement were
10 repudiated in 2001, when Stan Lee expressly terminated the 1998 Agreement and
11 thereafter assigned all right and title in his name and likeness to POW!. See e.g.
12 Abadin v. Marvel Entertainment, Inc., No. 10–1717 (2d Cir. 2010)), RJN, Ex. “A.”
13 (wherein the court found that Stan Lee terminated the 1998 Agreement in 2001).
14 Therefore, the statute of limitations on any claim to determine ownership of such
15 name and likeness rights would have begun in 2001 and would have accrued by
16 2003.
17 Again, Plaintiff cannot undo the last two decades of history and suddenly
18 claim ownership in Stan Lee’s name and likeness rights, which, by Plaintiff’s own
19 admission, were assigned to POW! on no fewer than six (6) separate occasions over
20 the course of seventeen (17) years. See Compl. ¶ 18. If SLMI, or anyone acting on
21 behalf of SLMI, wished to claim any purported ownership of Stan Lee’s name or
22 likeness, then that claim must have been brought back in 2003, two (2) years after
23 Stan Lee’s repudiation of the 1998 Agreement. However, no such claim was made
24 and instead, Stan Lee assigned all rights in his name and likeness to POW!, and
25 then, to avoid any doubt, re-iterated that assignment to POW! at least five (5) more
26 time. Compl. ¶ 18. The time to challenge those assignments, and re-assignments, to
27 POW! have all long-passed.
28 For the foregoing reasons, Plaintiff’s claim for declaratory relief sounding in
-17-
1 right of publicity is clearly barred by the applicable statute of limitations.

2
iii. PLAINTIFF’S CLAIM FOR CYBERSQUATTING UNDER 15
3
U.S.C. § 1125(d) IS BARRED FOR BEING UNTIMELY
4
Despite Plaintiff’s claims of cybersquatting, Defendant POW! has owned a
5
validly registered trademark in the name of Stan Lee for more than a decade (See
6
RJN, Ex. “L”) and has maintained the website “therealstanlee.com” since as early as
7
2011. Both the Plaintiff and her father had actual knowledge of the website, since
8
its launch. Indeed, Stan Lee not only supported and encouraged the launch of the
9
website, but was instrumental in its creation. For the Plaintiff to bring this claim
10
now, so many years after the creation and operation of the websites, is nonsensical
11
and clearly far beyond any applicable statute of limitations.
12
A claim of cybersquatting is brought under section 43(d) of the Lanham Act,
13
which governs trademarks. 15 U.S.C. §§ 1125(a)-(d). While the Lanham Act does
14
not, itself, establish a specific statute of limitations for trademark claims, the courts
15
have adopted the equitable principal of laches to bar untimely suits. “Laches is an
16
equitable time limitation on a party's right to bring suit, resting on the maxim that
17
‘one who seeks the help of a court of equity must not sleep on his rights.’ ” Jarrow
18
Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 835 (9th Cir. 2002) (internal
19
quotes and citations omitted). In evaluating a laches claim where, as here, injunctive
20
relief is sought, courts first determine when the statute of limitations period expired
21
for “the most closely analogous action under state law.” Id. at 836. “If the plaintiff
22
filed within that period, there is a strong presumption against laches. If the plaintiff
23
filed outside that period, the presumption is reversed.” Super-Krete Int'l, Inc. v.
24
Sadleir, 712 F. Supp. 2d 1023, 1035 (C.D. Cal. 2010) (citing Tillamook Country
25
Smoker, Inc. v. Tillamook County Creamery Ass'n, 465 F.3d 1102, 1108 (9th Cir.
26
2006).
27
Here, the most analogous state law claim is state trademark infringement, and
28
under California law, the statute of limitations for trademark infringement actions is
-18-
1 four (4) years. Pinkette Clothing, Inc. v. Cosmetic Warriors, LLC, 894 1015, 1025
2 (9th Cir. 2018) (citing Internet Specialties West, Inc., 559 F.3d at 990, fn.2).
3 Moreover, the accrual of the limitations period for laches begins when the plaintiff
4 “knew or should have known about its potential cause of action.” Tillamook, 465
5 F.3d at 1108. Once the court determines whether the presumption of laches applies,
6 it must determine the second step of the test. To do so, the 9th Circuit applies a six
7 factor test: “1) the strength and value of trademark rights asserted; 2) plaintiff's
8 diligence in enforcing mark; 3) harm to senior user if relief denied; 4) good faith
9 ignorance by junior users; 5) competition between senior and junior users; and 6)
10 extent of harm suffered by junior user because of senior user's delay.” E–Systems,
11 Inc. v. Monitek, Inc., 720 F.2d 604, 607 (9th Cir. 1983).
12 In the present case, of the three websites Plaintiff accuses of cybersquatting,
13 only one is actually registered in the name of Defendant POW! (therealstanlee.com),
14 and that website was registered nine years ago in 2011. Plaintiff, and her father, the
15 late Stan Lee, had actual knowledge of the website’s launch and operation since its
16 creation. Indeed, Stan Lee was, himself, directly involved in the creation of the
17 website and its content. Meanwhile, as already noted, Plaintiff fails to allege that
18 she (or SLMI) made any commercial use of the subject mark in the intervening
19 years since the website’s launch.
20 Moreover, Stan Lee specifically granted to the Defendant the right to use
21 Stan Lee’s name as a trademark in commerce, as far back as 2007. RJN, Ex. “L.”
22 Plaintiff was aware of those grants, as she even makes reference to such grants in
23 her Complaint. Compl. ¶ 18.
24 Under the circumstances, Plaintiff’s cybersquatting claim is far beyond any
25 period of justiciability and should be dismissed, without leave to amend, as
26 untimely.
27 ///
28 ///
-19-
1 C. EACH AND EVERY CLAIM ASSERTED IN PLAINTIFF’S

2 COMPLAINT IS BARRED BY THE DOCTRINES OF RES JUDICATA
3 AND COLLATERAL ESTOPPEL
4 “Res judicata, also known as claim preclusion, bars litigation in a subsequent
5 action of any claims that were raised or could have been raised in the prior action.”
6 Owens v. Kaiser Found. Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001)
7 (quoting Western Radio Servs. Co. v. Glickman, 123 F.3d 1189, 1192 (9th
8 Cir.1997)). The doctrine is applicable whenever there is “(1) an identity of claims,
9 (2) a final judgment on the merits, and (3) identity or privity between parties.” Id.
10 Moreover, “[t]he central criterion in determining whether there is an identity of
11 claims between the first and second adjudications is ‘whether the two suits arise out
12 of the same transactional nucleus of facts.’” Id. at 714 (quoting Frank v. United
13 Airlines, Inc., 216 F.3d 845, 851 (9th Cir.2000)). Additionally, “[w]hether a prior
14 disposition is published or unpublished is of no consequence—unpublished
15 decisions have the same preclusive effect.” Kaffaga v. Estate of Steinbeck, 938 F.3d
16 1006, 1013 (9th Cir. 2019) (citing 9th Cir. R. 36-3). “The doctrine of res judicata
17 rests upon the ground that the party to be affected, or some other with whom he is in
18 privity, has litigated, or had an opportunity to litigate, the same matter in a former
19 action in a court of competent jurisdiction, and should not be permitted to litigate it
20 again to the harassment and vexation of his opponent.” Hatchitt v. United States,
21 158 F.2d 754, 757 (9th Cir. 1946).
22 Here, Plaintiff openly asserts that she is in privity with the parties to the 1998
23 Agreement, not only asserting that she is the successor in interest to the late Stan
24 Lee, but also asserting that she has "joined forces with . . . [SLMI],” as she seeks
25 declaratory relief under the 1998 Agreement. Compl. ¶¶ 20, 39-60. However, this
26 very Court has already ruled that Plaintiff’s claims are barred by the doctrine of res
27 judicata. See RJN, Ex. “D.” In the case of Stan Lee Media, Inc. v. Stan Lee, this
28 Court expressly ruled that the enforceability of the 1998 Agreement was barred by
-20-
1 the doctrine of res judicata. Id. Specifically, this Court noted that the Southern
2 District of New York, in the case of Abadin v. Marvel, already issued a ruling on the
3 merits, finding: (1) the 1998 Agreement was terminated by Stan Lee in 2001, and
4 the statutory period in which to challenge that termination had lapsed; and (2) even
5 if it hadn’t been terminated in 2001, as a personal service contract, it would have
6 expired by its own terms in 2005 per Cal. Labor Code Section 2855(a). See RJN,
7 Ex. “A.” As stated by the Abadin Court, “[t]here can be no attempt to enforce this
8 contract beyond the statutory term.” Id. at *6.
9 Moreover, this Court is not alone in finding that the basis for Plaintiff’s
10 claims were barred by doctrines of preclusion. See Stan Lee Media, Inc. v. Walt
11 Disney Co., No. 12-CV-2663-WJM-KMT, 2013 WL 4776026 (D. Colo. Sept. 5,

12 2013) (dismissing the issue of the 1998 Agreement’s enforceability on grounds of
13 collateral estoppel as it had been previously decided on its merits by multiple
14 courts), aff'd, 774 F.3d 1292, 1299 (10th Cir. 2014) (quoting Stan Lee Media, Inc. v.
15 Lee, 585 F. App'x 597, 598 (9th Cir. 2014)) (stating the claims predicated on rights
16 in the 1998 Agreement were “simply implausible”), See RJN, Exs. “E”, “F”, “G”,
17 “I.” Additionally, in a second case before the Southern District of New York, SLMI,
18 intervening into a previously settled case between Stan Lee and Marvel, attempted
19 to enforce purported rights under the 1998 Agreement, making the same legal
20 arguments raised in the prior cases, which are the same legal arguments made by
21 Plaintiff in the Complaint. See RJN, Ex. “C.” Not to be dissuaded, SLMI sought to
22 intervene and resuscitate rights under the 1998 Agreement in yet another case, this
23 time before the Eastern District of Pennsylvania. See RJN, Ex. “H.” There too, the
24 court found that the intervener’s efforts to assert rights under the 1998 Agreement
25 were precluded under the doctrine of res judicata, stating “the Court is easily
26 satisfied that the claims clearly deal with the same subject matter, and it would be
27 unfair to the winning party and an unnecessary burden on the courts to allow
28
-21-
1 repeated litigation of the same issue in what is essentially the same controversy.” Id.
2 at *6-9.
3 In addition to the foregoing courts decisively finding that Plaintiff’s claims
4 are barred by the doctrines of res judicata and collateral estoppel, the District Court
5 of Colorado also found that they are patently frivolous. In deciding a motion for
6 attorney’s fees, that court specifically found the assertion of rights under the 1998
7 Agreement to be frivolous, stating, “The Court finds that it was objectively
8 unreasonable for [SLMI] to pursue its copyright claims under the 1998 Agreement
9 after three District Courts had previously found that it had no basis for asserting
10 ownership of any of the claimed copyrights.” RJN, Ex. “F” at *2 (citing Pannonia
11 Farms, Inc. v. Re/Max Int'l, Inc., 407 F.Supp.2d 41, 46 (D.D.C.2005)).

12 The claims raised in Plaintiff’s Complaint have been litigated and re-litigated
13 ad nauseam. Attempting to bring such claims again, after being struck down
14 numerous times by prior courts, including this very Court, is a gross waste of
15 judicial time and resources.
16 V. CONCLUSION
17 For the foregoing reasons, Defendant respectfully requests that this Court
18 enter an order dismissing, without leave to amend, the Plaintiff’s Complaint in its
19 entirety pursuant to Fed. R. Civ. P. 12(b)(6) and render an award of sanctions
20 pursuant to Fed. R. Civ. P. 11 as it sees fit.
21 DATED: January 24, 2020 HAMRICK & EVANS, LLP
22
23 By: /s/ Chaz C. Rainey
A. RAYMOND HAMRICK, III
24 CHAZ C. RAINEY
Attorneys for Defendants
25 POW! Entertainment, Inc.
26
27
28
-22-
1 CERTIFICATE OF SERVICE
2 I certify and state that I am now and at all times herein mentioned was, a
citizen of the United States, over the age of eighteen (18) years, a resident of the
3 County of Los Angeles, and not a party to the within action or cause. My business
address is Hamrick & Evans, LLP, 2600 West Olive Avenue, Suite 1020, Burbank,
4 California 91505.
5 I hereby certify that I am employed in the office of a member of the bar of
this court at whose direction the service was made.
6
I further certify that on January 24, 2020, I caused to be served the copies of
7 the attached:
8 NOTICE OF MOTION AND MEMORANDUM OF POINTS AND
9 AUTHORITIES IN SUPPORT OF DEFENDANT’S MOTION TO
DISMISS PLAINTIFF’S COMPLAINT PURSUANT TO FRCP 12(b)(6)
10
on the parties in said action as follows:
11
 BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically
12 filed the document(s) with the Clerk of the Court by using the CM/ECF
system. Participants in the case who are registered CM/ECF users will be
13 served by the CM/ECF system. Participants in the case who are not
registered CM/ECF users will be serve by mail or by any other means
14 permitted by the court rules.
15  (Federal) I declare that I am employed in the office of a member of the Bar of
this Court, at whose direction the service was made.
16
Executed on January 24, 2020, at Burbank, California.
17
/s/ Heather Martindale
18
Heather Martindale
19
20
21
22
23
24
25
26
27
28
-23-

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Case 2:19-cv-08353-ODW-FFM Document 15 Filed 01/24/20 Page 1 of 32 Page ID #:346

1 A. Raymond Hamrick, III (State Bar No. 93821)

11 JOAN CELIA LEE, as Trustee for the Case No.: 2:19-cv-08353

1 Plaintiff JOAN CELIA LEE, AS TRUSTEE FOR THE LEE FAMILY

1 THE STATUTE OF LIMITATIONS ....................................... 14

1 Estate of Fuller v. Maxfield & Oberton Holdings, LLC,

11 Internet Specialties West, Inc.,

1 Minden Pictures, Inc. v. John Wiley & Sons, Inc.,

11 Silvers v. Sony Pictures Entertainment, Inc.,

1 Timed Out, LLC v. Youabian, Inc.,

11 422 U.S. 490 (1975)............................................................................................... 10

1 Cal. Labor Code § 2855(a) ................................................................................ 2, 7, 21

1 COMES NOW Defendant POW! ENTERTAINMENT, INC. (“POW!” or

1 res judicata. Id.

1 While Plaintiff’s Complaint makes the conclusory and wholly unsupported

11 D. STAN LEE’S TERMINATION OF THE 1998 AGREEMENT.

11 assignments were generally worded, others expressly included posthumous rights to

1 District of New York against Marvel Entertainment, Inc. (“Marvel”), seeking to

11 5. On January 7, 2014, SLMI filed a motion to intervene in the case

1 III. LEGAL STANDARD

11 accept as true allegations that contradict exhibits attached to the Complaint or

11 speculative—that the injury will be redressed by a favorable decision. Id. at 560–

1 i. PLAINTIFF LACKS STANDING TO REQUEST

11 and Commercial Litigation in Federal Courts, at 1062, § 65.3(a)(4) (Robert L. Haig

11 Plaintiff’s pursuit of her cybersquatting claim. The subject websites

1 limitations generally applicable to civil claims.” 80 F.3d 1366, 1369-70, citing

1 right of publicity is clearly barred by the applicable statute of limitations.

1 C. EACH AND EVERY CLAIM ASSERTED IN PLAINTIFF’S

11 Disney Co., No. 12-CV-2663-WJM-KMT, 2013 WL 4776026 (D. Colo. Sept. 5,

11 Farms, Inc. v. Re/Max Int'l, Inc., 407 F.Supp.2d 41, 46 (D.D.C.2005)).

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