IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 36996
MINOR MIRACLE PRODUCTIONS, LLC, )
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Plaintiff/Counterdefendant/Respondent, ) Pocatello, August 2011 Term
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v. ) 2012 Opinion No. 5
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RANDY STARKEY, ) Filed: January 5, 2012
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Defendant/Counterclaimant/Third-Party ) Stephen Kenyon, Clerk
Plaintiff/Appellant, )
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and )
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DAVID L. RICHARDS, )
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Third-Party Respondent. )
Appeal from the District Court of the Sixth Judicial District of the State of Idaho,
Bannock County. Hon. David C. Nye, District Judge.
The district court’s grant of judgment on the pleadings is affirmed.
Randy Starkey, Kingston Springs, Tennessee, pro se appellant.
Cooper & Larsen, Chartered, Pocatello, for respondent. Javier L. Gabiola argued.
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HORTON, Justice
Minor Miracle Productions, LLC, (MMP) is the limited liability company responsible for
the film “The Hayfield.” MMP is composed of David Richards, who provided a filming location
and funding for the film, and Randy Starkey, who wrote and directed the film. After the film was
completed, Starkey refused to turn over possession of the film and various pieces of equipment
from the film. MMP brought suit against Starkey alleging breach of the duty of loyalty, breach of
contract, and conversion. After initially appearing via counsel in the case, Starkey proceeded pro
se. When Starkey failed to appear at motion hearings and disregarded the district court’s orders
regarding discovery, the court sanctioned Starkey, striking his defenses and precluding him from
using any evidence not previously disclosed. MMP then moved for judgment on the pleadings,
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and the district court granted the motion. The court ordered Starkey to pay Richards over one
million dollars in damages and interest for the costs of the film’s production, to return the film
and to release the copyrights to the film and its website to Richards, and enjoined Starkey from
selling the film and from using any of the equipment related to the film. Starkey timely appealed.
I. FACTUAL AND PROCEDURAL BACKGROUND
In 2006, David Richards and Randy Starkey formed Minor Miracle Productions, LLC for
the production and sale of the movie “The Hayfield.” MMP was formed under the laws of Idaho
and the articles of organization were filed with the Idaho Secretary of State. Starkey was to write
and direct the film while Richards provided money, equipment, and land for the filming.
Richards states that he and Starkey agreed to an operating agreement for the LLC, but Starkey
never signed the operating agreement. That agreement states:
David L Richards and Randal T Starkey have agreed that Mr. David L Richards as
the major investor of the film “The Hayfield” will be the first to regain all of his
(Mr. Richards) investments including, Cash, Equipment, and Losses that pertain to
the making and marketing of this film “The Hayfield” at which point Mr. Richards
and Mr. Starkey will divide the remaining proceeds equally 50/50.
At some point during filming or post-production, the relationship between Richards and
Starkey broke down. Richards states that Starkey attempted to sell percentage-interests in the
film and that Starkey encumbered the film without his knowledge or consent. In 2007, Starkey
informed Richards that any future communication should occur through his attorney. Starkey
unilaterally copyrighted the screenplay of the film and the film’s website.
In September 2008, MMP filed suit against Starkey for breach of his fiduciary duties to
MMP. Starkey, initially represented by counsel, filed an answer on November 7, 2008. Counsel
for Starkey withdrew on July 17, 2009, and Starkey thereafter appeared pro se.
On August 11, 2009, Starkey filed a motion to dismiss, and MMP and Richards filed a
motion to compel Starkey to respond to discovery requests. The district court denied the motion
to dismiss and asked MMP and Richards to renotice their motion to compel. MMP and Richards
later sought and were granted leave to amend the complaint, asserting claims of conversion and
of breach of contract for failing to adhere to the commitment to refund Richards all of his
expenditures. The court also granted MMP’s motion to compel, ordering Starkey to serve
supplemental discovery responses to MMP and Richards’ interrogatories and to provide
complete responses to the requests for document production. Starkey filed an amended answer
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on November 24, 2009. In December 2009, Starkey filed a motion to unseal affidavits and a
motion for change of venue. Neither motion was noticed for hearing.
MMP and Richards filed a second motion to compel and motion for sanctions in February
2010, following Starkey’s failure to comply with the court’s prior discovery orders. The motion
was properly served on Starkey. Starkey did not object to the motion to compel and failed to
appear at the motion hearing. The district court granted the second motion to compel and the
motion for sanctions, issuing an order striking Starkey’s affirmative defenses and precluding him
from advancing undisclosed witnesses or evidence. The court also awarded MMP and Richards
attorney fees related to the preparation of the second motion to compel.
On February 26, 2010, Richards’ attorney sent Starkey a letter requesting dates for a
deposition. When Starkey failed to respond, Richards scheduled the deposition for April 5, 2010
in Pocatello. Starkey did not appear for that deposition. Richards and MMP then filed a second
motion for sanctions. Again, Starkey failed to appear. The district court found that Starkey had
failed to defend his case and granted Richards’ and MMP’s request for costs and attorney fees
related to the deposition.
MMP and Richards filed a motion for judgment on the pleadings on July 6, 2010. Starkey
again failed to appear at the motion hearing. The district court then entered a judgment on the
pleadings, 1 finding that MMP was the owner of the film and that Starkey breached his duty of
loyalty to MMP. The court ordered Starkey to provide an accounting to MMP, to turn over to
Richards all of the materials and property related to the film, and entered judgment in favor of
Richards in the amount of $1,014,601.60 plus post-judgment interest. Finally, the court awarded
Richards and MMP costs and attorney fees. Starkey timely appealed.
II. STANDARD OF REVIEW
“[S]ubject matter jurisdiction is an issue that this Court may raise sua sponte at any time.”
Johnson v. Blaine Cnty., 146 Idaho 916, 924, 204 P.3d 1127, 1135 (2009) (citing In re Quesnell
Dairy, 143 Idaho 691, 693, 152 P.3d 562, 564 (2007)). “The issue of whether the district court
had jurisdiction over this action is one of law, over which this Court exercises free review.”
Giltner Dairy, LLC v. Jerome Cnty., 150 Idaho 559, ___, 249 P.3d 358, 359 (2011) (quoting
Troupis v. Summer, 148 Idaho 77, 79, 218 P.3d 1138, 1140 (2009)). “[W]hether it is necessary
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The district court granted MMP’s motion for judgment on the pleadings but in doing so treated the issue as one of
default. A default judgment is an appropriate sanction under I.R.C.P. 37(b) and, based on Starkey’s failure to defend
(as a result of his answer and defenses being struck), was proper in this instance.
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for a judicial officer to disqualify himself in a given case is left to the sound discretion of the
judicial officer himself.” Bradbury v. Idaho Judicial Council, 149 Idaho 107, 113, 233 P.3d 38,
44 (2009) (citing Sivak v. State, 112 Idaho 197, 206, 731 P.2d 192, 201 (1986)). In determining
whether the trial court has abused its discretion, this Court examines:
(1) whether the trial court correctly perceived the issue as one of discretion; (2)
whether the trial court acted within the outer boundaries of its discretion and
consistently with the legal standards applicable to the specific choices available to
it; and (3) whether the trial court reached its decision by an exercise of reason.
Baxter v. Craney, 135 Idaho 166, 169, 16 P.3d 263, 266 (2000) (citing Sun Valley Shopping Ctr.,
Inc. v. Idaho Power Co., 119 Idaho 87, 94, 803 P.2d 993, 1000 (1991)). With the exception of
jurisdictional issues, “[a]n argument not raised below and not supported in the briefs is waived
on appeal.” Doe v. Doe, 150 Idaho 432, ___, 247 P.3d 659, 663 (2011) (citing Crowley v.
Critchfield, 145 Idaho 509, 512, 181 P.3d 435, 438 (2007)). “Pro se litigants are held to the same
standards and rules as those represented by an attorney.” Twin Falls Cnty. v. Coates, 139 Idaho
442, 445, 80 P.3d 1043, 1046 (2003).
III. ANALYSIS
Starkey lists twenty-two different assignments of error on appeal. However, only one
issue is properly before this Court. Starkey argues that the district court misapplied federal
copyright law. As 28 U.S.C. § 1338 provides for exclusive jurisdiction over all cases arising
under the federal copyright laws, this issue is more accurately framed as a challenge to the
district court’s subject matter jurisdiction. The other issues Starkey raises on appeal are not
supported with argument or authority and are therefore waived.
A. The district court did not err in finding that it had subject matter jurisdiction.
Starkey correctly argues that 28 U.S.C. § 1338 grants exclusive jurisdiction to federal
courts to hear “any civil action arising under any Act of Congress relating to . . . copyrights.” 28
U.S.C. § 1338(1). 2 The critical question then is whether this is a suit that “arises under” the
federal copyright laws. It is not.
It has been stated that “[w]hether a complaint asserting factually related copyright and
contract claims ‘arises under’ the federal copyright laws for the purposes of Section 1338(a)
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When Starkey raised this issue, the district court stated that it would not reach the merits of his claim because he
admitted jurisdiction in his answer. However, because it relates to the power of the court to hear the claim, Starkey
could not waive it. “[S]ubject-matter jurisdiction, because it involves a court’s power to hear a case, can never be
forfeited or waived.” United States v. Cotton, 535 U.S. 625, 630 (2002).
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‘poses among the knottiest procedural problems in copyright jurisprudence.’” Bassett v.
Mashantucket Pequot Tribe, 204 F.3d 343, 347 (2d Cir. 2000) (quoting 3 Melville B. Nimmer &
David Nimmer, Nimmer on Copyright § 12.01[A], at 12-4 (1999)). However, this case poses no
such problem. Federal courts have clearly distinguished cases that may concern the ownership of
a copyright from those that actually arise under the copyright laws of the United States.
The mere fact that the complaint discloses that the case involves a copyright
dispute, however, does not in itself lead to a conclusion that the case “arises
under” the Federal Copyright Act for the purposes of jurisdiction under 28 U.S.C.
§ 1338(a). Many disputes over copyright ownership will arise under state law and
involve no federal law questions.
Arthur Young & Co. v. City of Richmond, 895 F.2d 967, 969 (4th Cir. 1990). This case, to the
extent that it is concerned with the film’s copyright, is only concerned with ownership as defined
under Idaho law and is not governed by 28 U.S.C. § 1338.
MMP and Richards assert three claims: breach of fiduciary duty, breach of contract, and
conversion. Each of these claims might involve the film’s copyright or the ownership of the
website, as Starkey argues. However, none of them are explicitly based on any question of
federal copyright law, nor do they require interpretation of federal copyright law. “[A] case does
not arise under the federal copyright laws merely because the subject matter of the action
involves or affects a copyright, such as where, in a suit on a contract, a copyright comprises the
subject matter of the contract.” 18 Am. Jur. 2d Copyright and Literary Property § 209 (footnotes
omitted). That is precisely the case here. There is no indication that any issues related to
copyright law that may arise in this case satisfy any of the tests federal courts have used in
determining whether they have jurisdiction under 28 U.S.C. § 1338. See generally Amy B.
Cohen, “Arising Under” Jurisdiction and the Copyright Laws, 44 Hastings L.J. 337, 360-72
(1993) (describing two streams of federal cases analyzing jurisdiction: those that look only to the
face of the complaint in determining jurisdiction and those that attempt to discern whether
copyright issues are the principal and controlling issue in the case).
We therefore hold that the district court properly had jurisdiction over the asserted
claims.
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B. Starkey’s remaining issues are not properly before this court.
1. Absent a motion for recusal, this Court will not consider whether a district court
judge’s failure to recuse himself is reversible error.
On appeal, Starkey makes various arguments that the district court judge should have
disqualified himself. However, Starkey never filed a motion for disqualification.
In the absence of a motion for disqualification, this Court will not review that
issue on appeal. . . . Because the question of a recusal under I.R.C.P. 40(d)(2) is
committed to the discretion of the trial judge, absent some objection at trial, there
was no decision by the trial court that can be reviewed and no factual record was
developed from which grounds for disqualification can be discerned.
Idaho Dep’t of Health & Welfare v. Doe, 150 Idaho 563, ___, 249 P.3d 362, 367 (2011). As we
noted in Doe, “[b]ecause the question of a recusal under I.R.C.P. 40(d)(2) is committed to the
discretion of the trial judge, absent some objection at trial, there was no decision by the trial
court that can be reviewed and no factual record was developed from which grounds for
disqualification can be discerned.” Such is the case here. We therefore decline to reach this issue
on appeal.
2. The other remaining issues are unsupported by argument or authority.
An appellant’s initial brief must include an argument section, which “shall contain the
contentions of the appellant with respect to the issues presented on appeal, the reasons therefor,
with citations to the authorities, statutes and parts of the transcript and the record relied upon.”
Idaho App. R. 35(a)(6). Even in cases where a party has explicitly set forth an issue in its brief,
we have held that:
[I]f the issue is only mentioned in passing and not supported by any cogent
argument or authority, it cannot be considered by this Court. Inama v. Boise
County ex rel. Bd. of Comm’rs, 138 Idaho 324, 330, 63 P.3d 450, 456 (2003)
(refusing to address a constitutional takings issue when the issue was not
supported by legal authority and was only mentioned in passing).
Where an appellant fails to assert his assignments of error with
particularity and to support his position with sufficient authority, those
assignments of error are too indefinite to be heard by the Court. Randall v. Ganz,
96 Idaho 785, 788, 537 P.2d 65, 68 (1975). A general attack on the findings and
conclusions of the district court, without specific reference to evidentiary or legal
errors, is insufficient to preserve an issue. Michael v. Zehm, 74 Idaho 442, 445,
263 P.2d 990, 993 (1953). This Court will not search the record on appeal for
error. Suits v. Idaho Bd. of Prof’l Discipline, 138 Idaho 397, 400, 64 P.3d 323,
326 (2003). Consequently, to the extent that an assignment of error is not argued
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and supported in compliance with the I.A.R., it is deemed to be waived. Suitts v.
Nix, 141 Idaho 706, 708, 117 P.3d 120, 122 (2005).
Bach v. Bagley, 148 Idaho 784, 790, 229 P.3d 1146, 1152 (2010).
As in Bach, Starkey has failed to “assert his assignments of error with particularity and to
support his position with sufficient authority.” In addressing his twenty-two arguments, he has
cited a total of five cases along with a number of citations to federal copyright law. One of the
five cases also addresses copyright law and the other four address standards for the
disqualification of judges. There is not a single citation to the trial court record and, as MMP
points out, the affidavit Starkey cites in his brief does not appear in the record before this Court. 3
As such, we hold that Starkey has waived all of his arguments except the jurisdictional
challenge.
C. As the prevailing party, MMP is entitled to attorney fees on appeal.
MMP requests attorney fees pursuant to I.C. § 12-121. “Reasonable attorney’s fees will
only be awarded to the prevailing party under I.C. § 12-121 when the court is left with the
abiding belief that the appeal was brought, pursued or defended frivolously, unreasonably and
without foundation.” Balderson v. Balderson, 127 Idaho 48, 54, 896 P.2d 956, 962 (1995). Here,
Starkey has so totally failed to advance any meritorious claim that his appeal must be seen as an
appeal pursued frivolously and without foundation. Starkey has attempted to characterize his
claim as a matter of copyright law when it is not, has attempted to argue that the judge in the
case was biased when he never properly presented a motion to consider the issue below, and
otherwise has “merely invite[d] the Court to second guess the findings of the lower court.” Bach,
148 Idaho at 797, 229 P.3d at 1159 (citing Crowley v. Critchfield, 145 Idaho 509, 514, 181 P.3d
435, 440 (2007)). We therefore order costs and attorney fees on appeal for MMP and Richards.
IV. CONCLUSION
We affirm the district court’s grant of judgment on the pleadings. As the prevailing
parties, MMP and Richards are entitled to attorney fees on appeal.
Chief Justice BURDICK and Justices EISMANN, J. JONES and W. JONES CONCUR.
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Consistent with his practice in the district court, Starkey also failed to appear at oral argument before this Court.
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