D. Arizona Holds That Copyright Nonregistration Argument Cannot Aid a Facial Attack on Subject Matter Jurisdiction

Per Bean v. McDougal Littell, --- F.Supp.2d ----, 2008 WL 660070 (D. Ariz. Mar. 06, 2008):

A Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction can take one of two forms. Thornhill Publ'g Co. v. Gen. Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979). It can be a “facial attack,” in which case “the challenger asserts that the allegations contained in [the] complaint are insufficient on their face to invoke federal jurisdiction.” Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.2004). Or it can be a “factual attack,” in which case the challenger asserts that federal jurisdiction does not exist in fact. Id. Defendants have limited their motion to a facial attack.

In resolving a facial attack under Rule 12(b)(1), the district court must accept the allegations of the Complaint as true and draw all reasonable inferences in favor of the plaintiff. Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir.2004). Such a jurisdictional attack will succeed “only if the plaintiff fails to allege an element necessary for subject matter jurisdiction.” Denney v. DEA, 508 F.Supp.2d 815, 824 (E.D.Cal.2007).

Here, Bean alleges federal question jurisdiction under 28 U.S.C. §§ 1331 and 1338. Bean's Complaint states that McDougal infringed upon his copyrights in the photograph in violation of 17 U.S.C. § 501. Bean also claims that R.R. Donnelley violated his copyright under 17 U.S.C. § 106(1) by making unauthorized reproductions of the copyrighted photograph. Defendants, however, contend that the copyrights in the photograph were not properly registered and that, as a result, this Court does not have jurisdiction over Bean's copyright infringement claims.

It is true that in order for the Court to have subject matter jurisdiction over these claims, the photograph must have been properly registered with the Copyright Office. 17 U.S.C. § § 411(a), 412. However, whether the photograph was properly registered in fact is beyond the limited inquiry that a facial attack permits. Bean alleges that “[t]he copyrights in [the photograph] were registered before McDougal's improper and unauthorized use.” Accepting the allegations of the Complaint as true, and drawing all reasonable inferences in favor of the plaintiff, this allegation sufficiently alleges the jurisdictional prerequisite of registration. Thus, Bean's Complaint is sufficient on its face to invoke subject matter jurisdiction.