                       NOTE: This disposition is nonprecedential.


 United States Court of Appeals for the Federal Circuit


                                        2006-1575


                              PETER CHRISTIAN ROPER,

                                                               Plaintiff-Appellant,

                                            v.


                                JO-ANN STORES, INC.,

                                                               Defendant-Appellee.



       Peter Christian Charles Roper, of Douglas, Arizona, pro se.

       Thomas F. Zych, Thompson Hine LLP, of Cleveland, Ohio, for defendant-
appellee.

Appealed from: United States District Court for the Central District of California

Judge A. Howard Matz
                       NOTE: This disposition is nonprecedential.

 United States Court of Appeals for the Federal Circuit
                                         2006-1575

                               PETER CHRISTIAN ROPER,

                                                         Plaintiff-Appellant,

                                              v.

                                 JO-ANN STORES, INC.,

                                                         Defendant-Appellee.

                            __________________________

                               DECIDED: January 9, 2007
                            __________________________


Before LINN, DYK, and MOORE, Circuit Judges.

PER CURIAM.

       Peter Christian Roper (“Roper”) appeals from a final judgment of the United

States District Court for the Central District of California (“district court”) dismissing his

action for patent and copyright infringement against Jo-Ann Stores, Inc. (“Jo-Ann”).

Roper v. Jo-Ann Stores, Inc., No. 04-CV-09654 (C.D. Cal. May 6, 2005) (“Civil

Minutes”).   Because Jo-Ann’s motion to dismiss was granted as unopposed, and

because the district court correctly determined that Roper’s First Amended Complaint

fails to state a claim upon which relief may be granted, we affirm.

                                       DISCUSSION

       We review the district court’s dismissal of an action for failure to state a claim

without deference. Univ. of W. Va. Bd. of Trs. v. Vanvoorhies, 278 F.3d 1288, 1295
(Fed. Cir. 2002). “Dismissal is proper” when, “after drawing all reasonable inferences in

the appellant's favor, it is clear that the appellant can prove no set of facts consistent

with his claim that would entitle him to relief.” Id. Thus, contrary to Roper’s arguments,

the Seventh Amendment provides a right to a jury trial only where a plaintiff has

demonstrated a triable issue of fact. Fidelity & Deposit Co. of Md. v. United States, 187

U.S. 315, 319–320 (1902). For the reasons that follow, we conclude that dismissal was

proper.

                    1.     Failure to Oppose Jo-Ann’s Motion to Dismiss

       As a preliminary matter, we observe that under the Local Rules of the U.S.

District Court for the Central District of California, as under many courts’ local rules, a

party who fails to oppose a motion may be deemed to consent to the granting of that

motion. Thus, even if Roper’s amended complaint had been meritorious, the district

court properly dismissed it when he failed to file any opposition to Jo-Ann’s motion to

dismiss. This, standing alone, is sufficient grounds for affirmance. However, perhaps

because Roper is proceeding pro se, the district court also considered the motion on the

merits, and so shall we.

                                 2.     Patent Infringement

       Roper first alleges that Jo-Ann has infringed his U.S. Patent No. 4,713,909 (“the

’909 patent”). “Literal infringement of a claim exists when each of the claim limitations

‘reads on,’ or in other words is found in, the accused device.” Allen Eng’g Corp. v.

Bartell Indus., 299 F.3d 1336, 1345 (Fed. Cir. 2002). In this case, even if all the alleged

facts are taken as true, they would not support a finding that Jo-Ann’s accused products

infringe either independent claim of the ’909 patent. Both claims of the patent require




2006-1575                                2
multiple “vertically spaced” “sections” or “layers,” wherein plants can grow.          The

accused product is simply a block of rigid green foam, into which a customer can insert

flowers in an arrangement.      Even if we assume that Jo-Ann’s floral foam could, in

principle, support growing plants, it completely fails to meet any of the structural

limitations of the claims of the ’909 patent. It therefore cannot infringe, and dismissal of

Roper’s patent infringement claims was proper.

                                 3.        Copyright Infringement

         Roper also alleges that Jo-Ann has infringed his copyrights on various written

works.     As with his patent infringement claim, the connection between Roper’s

purported intellectual property and Jo-Ann’s activities is far too tenuous to support an

infringement claim. Jo-Ann’s commercial advertising for floral foam, expressing simple

descriptions and images of floral arrangements, cannot, as a matter of law, infringe the

copyrights on Roper’s works on plant cultivation. To the extent that Roper’s complaint

challenges not Jo-Ann’s advertising, but rather alleged similarities between Jo-Ann’s

floral foam and Roper’s ideas, we echo the district court’s observation that “copyright

protects only an author’s expression of an idea and not the idea itself.” Landsberg v.

Scrabble Crossword Game Players, Inc., 736 F.2d 485, 488 (9th Cir. 1984). Dismissal

of the copyright claims was proper.

                                      4.         Discrimination

         In addition to his infringement claims, Roper alleges that the district court (and

possibly Jo-Ann) discriminated against him on the basis of race. These allegations are

without merit.     The district court correctly analyzed Roper’s claims and properly




2006-1575                                    3
concluded that they lacked merit; we have every confidence that the decision would

have been the same regardless of his race.

                                       5.       Sanctions

       Finally, Jo-Ann argues that Roper’s appeal should be sanctioned as frivolous.

However, although Jo-Ann cites to Fed. R. App. P. 38, it neglects to note that sanctions

may only be awarded “after a separately filed motion”—not after a request in an

appellate brief—or after “notice from the court and reasonable opportunity to respond.”

Neither condition applies here, and we conclude that action to impose sanctions is

unwarranted.

                                       CONCLUSION

       We have considered Roper’s remaining arguments and find them to be without

merit. Accordingly, the district court’s dismissal is affirmed.




2006-1575                                   4
