                                                                             FILED
                           NOT FOR PUBLICATION                                OCT 29 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


STAN LEE MEDIA, INC., a Colorado                No. 12-56733
corporation,
                                                D.C. No. 2:07-cv-00225-SVW-SS
              Plaintiff - Appellant,

  v.                                            MEMORANDUM*

STAN LEE, an individual; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                      Argued and Submitted October 9, 2014
                              Pasadena, California

Before: HAWKINS and GRABER, Circuit Judges, and SEDWICK,** District
Judge.

       This appeal challenges the dismissal of Stan Lee Media, Inc.’s (SLMI) claims

that its intellectual property rights in comic book characters were violated by the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable John W. Sedwick, United States District Judge for the
District of Alaska, sitting by designation.
legendary comic book creator Stan Lee. We affirm because SLMI failed to satisfy

pleading requirements.1

      To survive a motion to dismiss, a party must allege “enough facts to state a

claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544,

570 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Accepting as true

the allegations made by SLMI in its complaint, Lee v. City of Los Angeles, 250 F.3d

668, 679 (9th Cir. 2001), the claims to the vast majority of properties fall short of the

pleading requirement established in Iqbal-Twombly.

      Appellant’s central contention is that, in October 1998, Stan Lee assigned SLMI

rights to valuable comic book characters, including Spider-Man, The X-Men, The

Incredible Hulk, The Fantastic Four, Iron Man, Thor, Daredevil, and others (“the

Marvel characters”),2 and then breached that assignment. This argument is simply

implausible.

      The record demonstrates that, between the date the agreement was signed and

the filing of related litigation in 2007, SLMI never announced that it owned rights to

      1
              Although the district court dismissed on the ground that the claim was
precluded by earlier shareholder derivative litigation, Stan Lee Media Inc. v. Lee, 2012
WL 4048871 (C.D. Cal. Aug. 23, 2012), a court of appeals “‘may affirm on any basis
supported by the record, whether or not relied upon by the district court.’” Zixiang
Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Hall v. N. Am. Van Lines, Inc.,
476 F.3d 683, 686 (9th Cir. 2007).
      2
               Consolidated Complaint at ¶ 2(a).
                                           2
these characters (even when publicly disclosing company information pursuant to a

securities offering), licensed the characters, produced content related to the characters,

or asserted or attempted to enforce its ownership rights. During the course of SLMI’s

bankruptcy proceedings, which lasted from 2001 to 2006, neither the company, nor

Stan Lee, nor SLMI’s shareholders asserted that SLMI possessed an interest in the

characters.   Meanwhile, others were openly producing content and generating

revenues from the characters. Given the significant value of these franchises, SLMI’s

failure to publicize, protect, or exploit its right to profit from the characters establishes

that these claims are simply implausible.

       SLMI also alleges that Stan Lee abridged the company’s rights to certain lesser-

known characters created in the course of his relationship with SLMI, such as The

Drifter, The Accuser, and Stan’s Evil Clone (“the Lee characters”).

       Although the Consolidated Complaint could be read to encompass the Lee

characters, as well as the Marvel characters, SLMI’s arguments on appeal concern

only the latter. Indeed, SLMI affirmatively disclaimed an interpretation of the

complaint that would include the Lee characters. In its reply brief, for example, SLMI

asserted:

       [T]he claims for relief in the Abadin putative derivative case related only
       to a determination of intellectual property rights in three characters
       created after 1998 known as the Drifter, the Accuser and Stan’s Evil


                                             3
      Clone. [Opening] Brief at 15. The present action asserts SLMI’s
      ownership rights in characters that were created by Stan Lee prior
      to 1998. [Opening] Brief at 51–54.

Reply Brief at 4–5 (emphasis added).

      Therefore, we need not consider any potential claims related to the Lee

characters. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (arguments not

raised in a party’s opening brief are generally waived). We affirm the district court’s

dismissal.

      AFFIRMED.




                                          4
