                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 16 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



KESEY, LLC, an Oregon domestic limited           No. 10-35084
liability company,
                                                 D.C. No. 3:06-cv-00540-AC
              Plaintiff - Appellee,

  v.                                             MEMORANDUM *

MICHELE FRANCIS, AKA Mischelle
McMindes; MIKE HAGEN; SUNDOWN
& FLETCHER, INC., an Oregon
corporation,

              Defendants - Appellants,

  and

KATHERINE WILSON; ASSOCIATES
FILM PRODUCERS SERVICES,

              Defendants.



                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                        Argued and Submitted May 3, 2011
                                Portland, Oregon


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: KOZINSKI, Chief Judge, TASHIMA and IKUTA, Circuit Judges.


      Even assuming that Defendants have not waived their arguments with

respect to copyright ownership of the screenplay for failure to “specifically and

distinctly” make such arguments in their opening brief, see Miller v. Fairchild

Indus., Inc., 797 F.2d 727, 738 (9th Cir. 1986), they have failed to identify any

genuine issue of material fact that the screenplay was a work made for hire, that

Defendants were joint authors with Kesey, that Kesey had transferred ownership to

Defendants, or that they have any other basis for claiming ownership of the

copyright.

      Nor have Defendants raised any genuine issue of material fact with respect

to their affirmative defenses to the declaratory relief action. Defendants offered no

evidence that they communicated a “plain and express repudiation” of Kesey,

LLC’s (or Ken Kesey’s) copyright ownership in the screenplay before June 2003,

and therefore the statute of limitations does not bar Kesey, LLC’s declaratory relief

action. Zuill v. Shanahan, 80 F.3d 1366, 1369 (9th Cir. 1996); see also

Aalmuhammed v. Lee, 202 F.3d 1227, 1230–31 (9th Cir. 2000). Nor is there a

genuine issue of material fact that Kesey, LLC unreasonably delayed in bringing

suit or that Defendants suffered prejudice as a result of that delay, and therefore



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neither laches nor estoppel bars the declaratory relief action. See Miller v. Glenn

Miller Prods., Inc., 454 F.3d 975, 996–97 (9th Cir. 2006) (per curiam); United

States v. King Features Entm’t, Inc., 843 F.2d 394, 399–400 (9th Cir. 1988).

Additionally, we reject Defendants’ challenge to the district court’s evidentiary

rulings because Defendants have not shown any prejudice. See Dream Games of

Ariz., Inc. v. PC Onsite, 561 F.3d 983, 987–88 (9th Cir. 2009).

      Finally, because Francis and Hagen knowingly acted on behalf of Sundown

& Fletcher, Inc., after the corporation had been involuntarily dissolved as an

Oregon corporation, the district court properly maintained Kesey, LLC’s suit

against the individual defendants. See Or. Rev. Stat. § 60.054.

      Kesey, LLC’s motion to file the novel as part of its supplemental excerpts of

record is denied as moot.

      AFFIRMED.




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