FILED
NOT FOR PUBLICATION
OCT 28 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KELLY BARNETT, No. 20-35299
Plaintiff-Appellant, D.C. No. 6:18-cv-00418-MC
v.
MEMORANDUM*
UBIMODO, INC.; UBIMODO
INSURANCE LLC; SOTERIA
INSTITUTE; SCOTT WARNER;
UBIMODO LTD CANADA; STARR
INDEMNITY & LIABILITY
COMPANY; ARMOUR RISK
MANAGEMENT, AKA Bedivere
Insurance Company, AKA Bevidere, AKA
Trebuchet Holdings LLC, jointly and
severable,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Submitted October 26, 2021 **
*
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).
Before: FERNANDEZ, SILVERMAN, and NGUYEN, Circuit Judges
Kelly Barnett appeals the district court orders terminating her copyright
infringement action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review de novo the orders dismissing for failure to state a claim and granting
summary judgment. UMG Recordings, Inc. v. Shelter Cap. Partners LLC, 718
F.3d 1006, 1014 (9th Cir. 2013). We review the dismissal pursuant to Federal
Rule of Civil Procedure 41(b) for an abuse of discretion. Ferdik v. Bonzelet, 963
F.2d 1258, 1260 (9th Cir. 1992). We affirm.
The district court acted well within its discretion by dismissing Soteria
Institute with prejudice. Even though the district court identified the proper agent
of service and gave Barnett multiple opportunities and ample time to serve the
defendant after the time for service had expired, Barnett failed to comply with
court orders to serve the defendant. See Fed. R. Civ. P. 41(b) (allowing
involuntary dismissal for failure to prosecute or failure to comply with the civil
procedure rules or court orders).
The district court properly dismissed the copyright claim against Starr and
granted summary judgment in favor of the other defendants. As a matter of law,
Barnett’s copyright did not protect the ideas or process reflected in her flowchart,
2
only her flowchart. 17 U.S.C. § 102(b); see Bikram’s Yoga Coll. of India, L.P. v.
Evolation Yoga, LLC, 803 F.3d 1032, 1034 (9th Cir. 2015) (holding that a
sequence of yoga poses and breathing exercises were an idea, system, or process
that could not be copyrighted); UMG Recordings, Inc., 718 F.3d at 1031 (requiring
proof of direct infringement to establish contributory infringement, vicarious
infringement, and inducement of infringement).
To the extent that Barnett argues the district court should have allowed
discovery before granting summary judgment, she has not identified which
discovery she sought and how it would have prevented summary judgment. See
Stevens v. Corelogic, Inc., 899 F.3d 666, 678 (9th Cir. 2018) (requiring that the
party seeking to delay summary judgment state the “specific” existing evidence
that the party “hopes to discover” and how that evidence is “essential to oppose
summary judgment”).
This case remains administratively closed as to appellee Bedivere. See
Docket Entry No. 52. We therefore do not reach Barnett’s contentions regarding
dismissal of her claims against Bedivere.
We decline to consider arguments raised for the first time on appeal. Dream
Palace v. Cnty of Maricopa, 384 F.3d 990, 1005 (9th Cir. 2004).
3
Appellee Warner’s request for sanctions is denied. If Barnett continues to
file lawsuits against Warner, he can request that the district court sanction Barnett.
Barnett’s Motion for Rehabilitation of Character (Dkt. Entry No. 25),
Motion to Expand the Record (Dkt. Entry No. 41), and Motion for an Order to
Correct Docket (Dkt. Entry No. 46) are DENIED.
AFFIRMED.
4