11-1694-cv
Muller v. Anderson

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
Rulings by summary order do not have precedential effect. Citation to a summary order filed
on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
Procedure 32.1 and this court’s Local Rule 32.1.1. When citing a summary order in a document
filed with this court, a party must cite either the Federal Appendix or an electronic database
(with the notation “summary order”). A party citing a summary order must serve a copy of it
on any party not represented by counsel.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at
the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 8th day of November, two thousand and twelve.

PRESENT:

           JOSÉ A. CABRANES,
           ROBERT D. SACK,
           SUSAN L. CARNEY,
                                Circuit Judges.
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JAMES MULLER,

                     Plaintiff-Appellant,

                               -v.-                                                              No. 11-1694-cv

PAUL W.S. ANDERSON, DAVIS ENTERTAINMENT, TWENTIETH
CENTURY FOX FILM CORPORATION,

                     Defendants-Appellees,

BRANDYWINE PRODUCTIONS,

                      Defendant.1
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FOR PLAINTIFF-APPELLANT:                                                  WILLIAM PAUL NOLAN, The Nolan Law Firm,
                                                                          New York, NY.



1   The Clerk of Court is directed to amend the official caption in this case to conform to the listing of the parties above.
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FOR DEFENDANTS-APPELLEES:                               LOUIS P. PETRICH, Leopold, Petrich & Smith, A
                                                        Professional Corporation, Los Angeles, CA (Slade
                                                        R. Metcalf, Katherine M. Bolger, Rachel F. Strom,
                                                        Hogan Lovells US LLP, New York, NY, on the
                                                        brief).


        Appeal from a March 31, 2011 judgment of the United States District Court for the Southern
District of New York (Denny Chin, Circuit Judge, sitting by designation).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the March 31, 2011 judgment of the District Court be AFFIRMED.

        James Muller appeals from an order of the District Court granting summary judgment on
Muller’s copyright and breach of contract claims, and denying Muller’s motion for further discovery
under Federal Rule of Civil Procedure 56(f) (“Rule 56(f)”). We review an order granting summary
judgment de novo and “resolv[e] all ambiguities and draw[ ] all permissible factual inferences in favor of
the party against whom summary judgment is sought.” Burg v. Gosselin, 591 F.3d 95, 97 (2d Cir. 2010)
(quoting Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009)). We review a denial of a request for discovery
under Rule 56(f)—now renumbered 56(d)—for abuse of discretion. Gualandi v. Adams, 385 F.3d 236,
244–45 (2d Cir. 2004). We assume familiarity with the underlying facts and procedural history of this
case.

                                           BACKGROUND

       Muller is a screenwriter who contends that the defendants, Paul W. S. Anderson, Davis
Entertainment, and Twentieth Century Fox Film Corporation, made illegal use of his script for “The
Lost Continent” (“TLC”) in their film “Alien vs. Predator” (“AVP”).

         In broad terms, TLC tells the tale of a group of scientists, soldiers, and shadowy government
officials with undisclosed ties to the Freemasons, who venture via submarine to a hidden space beneath
Antarctica. There, they discover the remains of the fabled Atlantis. They soon find a large pyramid that
holds a powerful magic crystal. As so often happens upon finding a valuable treasure, things quickly go
awry. The team is attacked by various inanimate or frozen creatures come to life—first a brigade of
stone gargoyles and later the evil leader of Atlantis, Jahbulon. As the fight wears on, the protagonists, a
female archaeologist and a male Navy SEAL Captain, must confront both the dangers of Atlantis and
the machinations of the Freemasons, whose membership includes the President of the United States
himself.

       AVP is the story of the battle between two well-known monsters of science fiction, the Aliens
and the Predators. The action begins when a team of scientists and soldiers explore an island off of
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Antarctica where they find a mysterious pyramid. Within, they discover the Alien Queen—an infamous
beast from the Alien film series. As Aliens do, the Queen soon lays eggs, which produce “facehuggers,”
which, in turn, latch onto the soldiers’ faces and implant Alien embryos. The embryos develop in the
victims’ bodies until they burst out of their chests, killing the hosts. The Aliens then quickly develop
into fearsome and aggressive creatures. It turns out, however, that the Aliens are not the only extra-
terrestrials on this remote island. As it happens, the Predators—an advanced species from outer space
that hunts humans and others for sport, as seen in the Predator film series—have trapped the Alien
Queen on Earth, so that they may return every hundred years and participate in a ritual hunting of
Aliens. The humans, tricked by the Predators into exploring the island, were merely hapless victims,
used as hosts so that the Predators could hunt full-grown Aliens. As the humans are killed off in the
cross-fire between Predators and Aliens, the protagonist—a female scientist—must join forces with the
last remaining Predator to fend off the Aliens.2

        Muller brought suit alleging that he had sent his script for TLC to various persons or entities
associated with defendants, that TLC was copyrighted, and that there was substantial similarity between
TLC and AVP. He therefore claimed that defendants had (1) infringed his copyright and (2) breached
an implied contract by appropriating his ideas without remuneration. Defendants subsequently moved
for summary judgment. In his opposition, Muller moved for additional discovery. Ultimately, the
District Court granted summary judgment to defendants on both the copyright infringement claim and
the breach of implied contract claim, and denied plaintiff ’s request for further discovery. Muller v.
Twentieth Century Fox Film Corp., 794 F. Supp. 2d 429, 449 (S.D.N.Y. 2011).

       On appeal, Muller argues that the District Court (1) erred as a matter of fact and law in granting
summary judgment on his copyright infringement claim; (2) erred as a matter of fact and law in granting
summary judgment on his breach of implied contract claim; and (3) abused its discretion in denying his
motion for additional discovery.

                                                   DISCUSSION

A.       Copyright Infringement

        Where, as here, the parties do not dispute that the plaintiff has a valid copyright, the plaintiff
must prove two elements to prevail: (1) actual copying and (2) improper appropriation. Laureyssens v.
Idea Group, Inc., 964 F.2d 131, 139–40 (2d Cir. 1992). A plaintiff may establish actual copying
circumstantially by demonstrating (a) that the defendant had access to the copyrighted material and (b)
that the two works exhibit similarities “probative of copying.” Jorgensen v. Epic/Sony Records, 351 F.3d 46,
51 (2d Cir. 2003) (quotation marks omitted). Alternatively, a plaintiff may prove actual copying if the


2 A more complete synopsis of both TLC and AVP, including the ending of each, may be found at Muller v. Twentieth Century

Fox Film Corp., 794 F. Supp. 2d 429, 433-438 (S.D.N.Y. 2011).
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“works are so strikingly similar as to preclude the possibility of independent creation.” Repp v. Webber,
132 F.3d 882, 889 (2d Cir. 1997) (quotation marks omitted). A plaintiff may demonstrate improper
appropriation by showing substantial similarity between the two works. Laureyssens, 964 F.2d at 140.
Hence, a court may grant summary judgment for the defendant where “no reasonable jury, properly
instructed, could find that the two works are substantially similar.” Arica Inst., Inc. v. Palmer, 970 F.2d
1067, 1072 (2d Cir. 1992).

         The District Court did not err in granting summary judgment. It amply explained why Muller
failed to adduce facts from which a reasonably jury could find actual copying or improper appropriation.
Indeed, as the District Court’s thorough examination shows, Muller could not prove access, probative
similarity, striking similarity, or any element that would support a finding of appropriation. Therefore,
substantially for the reasons set out by the District Court, we affirm the judgment of the District Court
as to the copyright infringement claim.

B.      Breach of Implied Contract

         The District Court granted summary judgment as to the state law breach-of-implied-contract
claim on the ground that it was preempted by the Copyright Act. However, after the District Court
issued its judgment, we had an opportunity to address the application of preemption under the
Copyright Act to claims of breach of an implied contractual promise to pay for ideas. In Forest Park
Pictures v. Universal Television Network, Inc., we recently held that “preemption is precluded [by] a contract
claim [that] includes a promise to pay.” 683 F.3d 424, 432 (2d Cir. 2012). Moreover, “there is no
difference for preemption purposes between an express contract and an implied-in-fact contract.” Id.
Because Muller has properly alleged that defendants violated an implied-in-fact contract by using his
ideas without remuneration, his breach of implied contract claim is arguably not preempted.

         Nonetheless, “we may ‘affirm the judgment of the district court on any basis for which there is
a record sufficient to permit conclusions of law.’” N.Y. Mercantile Exch., Inc. v. IntercontinentalExchange,
Inc., 497 F.3d 109, 116 n.8 (2d Cir. 2007) (quoting Prisco v. A&D Carting Corp., 168 F.3d 593, 610 (2d Cir.
1999)). Here, it is perfectly clear that Muller has failed to present a triable issue of fact with respect to
his breach of contract claim. Even if, as Muller argues, Colorado law applies, cf. Smith v. Bayer Corp., 131
S. Ct. 2368, 2376 n.6 (2011) (declining to determine which law applies where no relevant difference
between the laws was identified), he still must prove “that the parties agreed upon all essential terms,”
which may be “evidenced by their manifestations of mutual assent.” I.M.A., Inc. v. Rocky Mountain
Airways, Inc., 713 P.2d 882, 888 (Colo. 1986) (en banc); see also Agritrack, Inc. v. DeJohn Housemoving, Inc., 25
P.3d 1187, 1192 (Colo. 2011) (“A contract implied in fact arises from the parties’ conduct which
evidences a mutual intention to enter into a contract.” (quotation marks omitted)).

       Muller has offered no evidence whatsoever of any mutual assent between himself and the
defendants. All Muller has even argued is that he sent TLC to several persons or entities with some
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connection to the defendants. As the District Court explained in its analysis of the access prong of the
copyright claim, Jorgensen, 351 F.3d at 51, these assertions “are based on speculation and conjecture
rather than concrete evidence.” Indeed, Muller himself has conceded that “[n]o material terms of a
contract to pay for ideas were ever communicated, either expressly or by implication, between plaintiff
and any of the defendants.” Compare Defs.’ Statement of Material Facts ¶ 42, Joint App’x 1496, with Pl.’s
Statement of Material Facts ¶ 42, Joint App’x 3217. In sum, although Muller’s breach of implied
contract claim may not be preempted, the District Court’s judgment as to the breach of contract claim
may nonetheless be affirmed.

C.          Additional Discovery

         Finally, Muller argues that the District Court abused its discretion in denying his motion for
additional discovery under Rule 56(f)—now renumbered as 56(d).3 There is simply no basis to conclude
that District Court abused its discretion by denying the motion. Therefore, substantially for the reasons
articulated by the District Court, we affirm this portion of the judgment.

                                                         CONCLUSION

       We have reviewed the record and the parties’ arguments on appeal, and we affirm the March 31,
2011 judgment of the District Court.

                                                            FOR THE COURT,
                                                            Catherine O’Hagan Wolfe, Clerk of Court




3   In relevant part, Federal Rule of Civil Procedure 56 reads:

      (d) When Facts Are Unavailable to the Nonmovant. If a nonmovant shows by affidavit or declaration that, for
      specified reasons, it cannot present facts essential to justify its opposition, the court may:

            (1) defer considering the motion or deny it;

            (2) allow time to obtain affidavits or declarations or to take discovery; or

            (3) issue any other appropriate order.
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