                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       DEC 11 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BUFFY LYN RONEY; et al.,                        No.    16-55717

                Plaintiffs-Appellants,          D.C. No. 2:15-cv-09652-R-AS

 v.
                                                MEMORANDUM*
MICHAEL MILLER, DBA Falcon Press,
Inc. and UNITED STATES
ECCLESIASTICAL SOCIETY &
SEMINARY, DBA New Falcon
Publications, a corporation,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Central District of California
                    Manuel L. Real, District Judge, Presiding

                          Submitted December 4, 2017**
                              Pasadena, California

Before: CALLAHAN and BEA, Circuit Judges, and WHALEY,*** District Judge.



      *
             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).
      ***
             The Honorable Robert H. Whaley, United States District Judge for the
Eastern District of Washington, sitting by designation.
      Plaintiffs appeal the dismissal of their complaint without leave to amend.

We reverse.1

      1. Plaintiffs state a straightforward case of copyright infringement: they (as

heirs of the author) are the owners of the copyrights in and to four books—which

Plaintiffs identify in their First Amended Complaint (FAC) by title and copyright

registration number—and Defendants sell those books without authorization.

Plaintiffs thus allege the two elements of a copyright infringement claim—

“‘ownership of a valid copyright’” and “‘copying of constituent elements of the

work that are original.’” Seven Arts Filmed Entm’t Ltd. v. Content Media Corp.

PLC, 733 F.3d 1251, 1254 (9th Cir. 2013) (quoting Feist Publ’ns, Inc. v. Rural Tel.

Serv. Co., 499 U.S. 340, 361 (1991)); see also 1 Melville B. Nimmer & David

Nimmer, Nimmer on Copyright § 13.01 (Matthew Bender, rev. ed. 2017)

(“Reduced to most fundamental terms, there are only two elements necessary to the

plaintiff’s case in an infringement action: ownership of the copyright by the

plaintiff and copying by the defendant.”). Plaintiffs’ FAC gives Defendants fair

notice of the alleged wrongdoing, such that they can admit or deny that they

sold/sell the books identified in the FAC without permission. The district court

erred in concluding Plaintiffs failed to state a claim.



      1
             Plaintiffs’ allegations are familiar to the parties and are restated here
only as necessary to resolve the legal issues of the appeal.

                                           2
      2. Plaintiffs also argue the district court abused its discretion in denying

leave to amend. That argument is moot in light of our conclusion that the FAC

sufficiently alleges a copyright infringement claim. However, because we perceive

a reasonable likelihood that Plaintiffs will seek leave to amend,2 and because the

district court’s decision to deny leave to amend conflicts with our jurisprudence,

we note a few principles governing requests for leave to amend.

      “When justice requires, a district court should ‘freely give leave’ to amend a

complaint.” Arizona Students’ Ass’n v. Arizona Bd. of Regents, 824 F.3d 858, 871

(9th Cir. 2016) (quoting Fed. R. Civ. P. 15(a)(2)). “Absent prejudice, or a strong

showing of any of the remaining Foman factors, there exists a presumption under

Rule 15(a) in favor of granting leave to amend.” Eminence Capital, LLC v.

Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003); see Foman v. Davis, 371 U.S.

178, 182 (1962) (identifying factors that may justify denying leave to amend,

including undue delay, bad faith or dilatory motive, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to the opposing

party, and futility). Although the repeated failure to cure deficiencies is a proper

basis for denying leave to amend, there is no such repeated failure when, as here,

the current motion to dismiss is “the first pleading[ ] to attack the sufficiency of



      2
          In response to the motion to dismiss, Plaintiffs submitted a proposed
Second Amended Complaint, which the district court rejected.

                                           3
[the plaintiffs’] allegations, the current decision[ ] by the district court . . . [is] the

first to address the sufficiency of those allegations, and [the plaintiffs are] seeking

[their] first opportunity to cure those deficiencies.” United States v. United

Healthcare Ins. Co., 848 F.3d 1161, 1183 (9th Cir. 2016) (reversing denial of leave

to amend even though the plaintiff had previously amended his pleading three

times); see also Eminence Capital, 316 F.3d at 1053 (noting that although the

complaint was amended multiple times, “it is not accurate to imply that plaintiffs

had filed multiple pleadings in an attempt to cure pre-existing deficiencies”).

Additionally, “[u]nder futility analysis, ‘[d]ismissal without leave to amend is

improper unless it is clear . . . that the complaint could not be saved by any

amendment.’” United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir.

2011) (second alteration in original).

       The judgment is VACATED, the district court’s order granting Defendants’

motion to dismiss is REVERSED, and the matter is REMANDED for further

proceedings consistent with this disposition. Costs are to be taxed against

appellees Michael Miller and United States Ecclesiastical Society & Seminary.




                                              4
