                                                                           FILED
                           NOT FOR PUBLICATION                             APR 01 2014

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



                            FOR THE NINTH CIRCUIT


KELLY VAN,                                       No. 12-55416

              Plaintiff - Appellant,             D.C. No. 3:10-cv-01051-AJB-WVG

  v.
                                                 MEMORANDUM*
JAMES CAMERON; TWENTIETH
CENTURY FOX; DUNE
ENTERTAINMENT, INC.;
LIGHTSTORM ENTERTAINMENT,
INC.; INGENIOUS FILM PARTNERS,
LLC; INGENIOUS FILM PARTNERS 2;
FUTURE SERVICE INC.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Anthony J. Battaglia, District Judge, Presiding

                          Submitted December 17, 2013**
                             San Francisco, California

Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Kelly Van appeals pro se from the district court’s judgment dismissing her

action alleging that defendants’ movie Avatar infringed upon her copyrighted

novel, Sheila the Warrior: The Damned. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal for failure to state a claim, Hebbe v. Pliler,

627 F.3d 338, 341 (9th Cir. 2010), and for an abuse of discretion the denial of a

motion brought under Federal Rule of Civil Procedure 60(b), Lal v. California, 610

F.3d 518, 523 (9th Cir. 2010). We affirm.

      The district court properly dismissed Van’s copyright infringement claims

because there was no substantial similarity between protected elements of her

copyrighted novel and comparable elements of defendants’ film as a matter of law,

and any similarity in the general concepts of humans traveling to another planet or

individuals flying is 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, theme, dialogue, mood, setting, pace, and characters);

Funky Films, Inc. v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1077 (9th Cir.

2006) (substantial similarity focuses on only concrete, protectable elements of

works standing alone, not nonprotectable elements, such as generic concepts or

ideas).


                                           2
      The district court did not abuse its discretion when it denied Van’s motion

for relief under Rule 60(b) because Van failed to establish any basis for relief. See

Sch. Dist. No. 1J, Multnomah Cnty., Or., v. ACandS, Inc., 5 F.3d 1255, 1263 (9th

Cir. 1993) (setting forth grounds for reconsideration under Fed. R. Civ. P. 60(b));

see also Lal, 610 F.3d at 524 (to constitute extraordinary circumstances, attorney

must engage in “neglect so gross that it is inexcusable” (quoting Cmty. Dental

Servs. v. Tani, 282 F.3d 1164, 1168 (9th Cir. 2002)).

      Defendants’ motion to submit DVD copies of Avatar, filed on July 31, 2012,

is granted.

      Van’s motion to accept evidence, filed on September 12, 2012, is granted.

      Van’s motion to accept her oversized reply brief, filed on September 12,

2012, is granted, and the Clerk is directed to file the reply brief submitted on

September 12, 2012.

      All other pending motions are denied.

      AFFIRMED.




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