NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH HEUSEY, No. 15-55975
Plaintiff-Appellant, D.C. No. 2:14-cv-06810-AB-E
v.
MEMORANDUM*
ROLAND EMMERICH; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Andre Birotte, Jr., District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Kenneth Heusey appeals pro se from the district court’s judgment dismissing
his action alleging copyright infringement and fraud. We have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s dismissal under Federal
Rule of Civil Procedure 12(b)(6), Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.
*
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).
2010), and we affirm.
The district court properly dismissed Heusey’s copyright infringement
claims because, as a matter of law, Heusey’s copyrighted screenplay Not Without
Justice and defendants’ film Anonymous are not substantially similar under the
extrinsic test, and any similarities in the general concepts are unprotected.
See Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624-25 (9th Cir. 2010)
(setting forth extrinsic test to assess substantial similarity between specific
expressive elements of copyrighted works at issue, such as plot, sequence of
events, themes, dialogue, mood, setting, pace, and characters); Funky Films, Inc. v.
Time Warner Entm’t Co., 462 F.3d 1072, 1076-78 (9th Cir. 2006) (substantial
similarity may be decided as a matter of law by applying the extrinsic
test); Cavalier v. Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002) (“Scenes-
a-faire, or situations and incidents that flow necessarily or naturally from a basic
plot premise, cannot sustain a finding of infringement.”).
We reject as meritless Heusey’s contention that the promotional trailers for
defendants’ film, as freestanding works separate from the film itself, are
independently substantially similar to Heusey’s screenplay.
The district court properly dismissed Heusey’s fraud claim because Heusey
failed to allege facts sufficient to state a plausible claim under California law. See
Belasco v. Wells, 183 Cal. Rptr. 3d 840, 852 (Ct. App. 2015) (elements of a fraud
2 15-55975
claim under California law).
The district court did not abuse its discretion by dismissing Heusey’s
complaint without leave to amend because amendment would be futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth
standard of review and explaining that “[a] district court acts within its discretion
to deny leave to amend when amendment would be futile”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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