NOT PRECEDENTIALUNITED STATES COURT OF APPEALSFOR THE THIRD CIRCUITNo. 06-3074________________GORDON ROY PARKER, Appellantv.GOOGLE, INC.; JOHN DOES # 1-50,000____________________________________On Appeal From the United States District CourtFor the Eastern District of Pennsylvania(D.C. Civ. No. 04-cv-03918)District Judge: Honorable R. Barclay Surrick_______________________________________Submitted Under Third Circuit LAR 34.1(a)March 23, 2007Before: BARRY, CHAGARES AND ROTH, CIRCUIT JUDGES(Filed July 10, 2007)_______________________OPINION_______________________PER CURIAMThis is an appeal from the District Court’s dismissal of Gordon RoyParker’s complaint against Google, Inc. (“Google”). We will affirm.I.Google is a Delaware corporation whose headquarters are in California. Google operates a website at www.google.com. This website includes an Internet search2engine that allows users to search for websites, products and images among other things. Google’s automatic search technology operates by “crawling” the Internet so that thecontent can be organized in a searchable index. In the course of “crawling” the Internet,Google makes a copy of each website and stores it in a “cache.” When a user conducts asearch, Google provides a list of results and often includes an excerpt from the matchedsite. Google also provides users with the ability to access, search and postmessages to the USENET. The USENET is a global system of online bulletin boards. In2000, Google purchased an archive of USENET postings dating back to 1981. Google’sUSENET archive contains more than 845 million messages. A user can search theUSENET archive using several different criteria, including, but not limited to the author,date, keywords, phrases and/or subject material. In 2004, Parker filed a pro se complaint against Google. After Google fileda motion to dismiss, Parker filed an amended complaint (“first amended complaint”). Inthe first amended complaint, Parker alleged that he is an Internet publisher. He haspublished works on the Internet under the name Snodgrass Publishing Group. Parkerstated that he owns a copyright for his work entitled “29 Reasons Not to be a Nice Guy.” Parker alleged that a third-party copied “Reason #6” and posted it to the USENETwithout his permission. Furthermore, Parker alleged that Google provided users withlinks to websites that portrayed him negatively when users utilized Google’s Internetsearch engine.1 Parker withdrew this claim on appeal.3Parker’s first amended complaint contained the following claims: (1) directcopyright infringement (“Claim I”); (2) contributory copyright infringement (“Claim II”);(3) vicarious copyright infringement (“Claim III”); (4) defamation (“Claim IV”); (5)invasion of privacy (“Claim V”); (6) negligence (“Claim VI”); (7) Lanham Act violations(“Claim VII”); racketeering against Google (“Claim VIII”); racketeering againstseduction community (“Claim IX”); (10) abuse of process1 (“Claim X”); and (11) civilconspiracy (“Claim XI”). Subsequently, Google moved to dismiss the first amendedcomplaint. On March 13, 2006, the District Court dismissed Claims I, II, III, IV, V, VI,VII and X with prejudice pursuant to Federal Rule of Civil Procedure 12(b)(6). ClaimsVIII, IX and XI were dismissed without prejudice after the District Court determined thatthese claims failed to comply with Federal Rule of Civil Procedure 8(a). Parker timelyfiled a motion for reconsideration as well as a motion for leave to file a second amendedcomplaint.As Parker’s motion for reconsideration and motion for leave to file a secondamended complaint were pending before the District Court, Parker requested an entry ofjudgment pursuant to Federal Rule of Civil Procedure 58(d). Parker explained that heonly wanted an entry of judgment in the event that the District Court denied his motionfor reconsideration and motion for leave to file a second amended complaint. Subsequently, the District Court denied the motion for reconsideration and motion for4leave to file a second amended complaint. The District Court entered judgment againstParker. Parker timely filed a notice of appeal. II.We first must determine whether we have appellate jurisdiction. We adhereto the rule that “we lack appellate jurisdiction over partial adjudications when certain ofthe claims before the district court have been dismissed without prejudice.” Fed. HomeLoan Mortgage Corp. v. Scottsdale Ins. Co., 316 F.3d 431, 438 (3d Cir. 2003)(citationsomitted). Nevertheless, an order is final and appealable where a plaintiff elects to standon a complaint. See Morton Int’l, Inc. v. A.E. Staley Mfg. Co., 460 F.3d 470, 477 (3dCir. 2006)(citation omitted). There is no “rigid requirement as to what a plaintiff must doto stand on a dismissed complaint.” United States ex rel. Atkinson v. PA. ShipbuildingCo., – F.3d –, 2007 WL 79483, at *8 (3d Cir. Jan. 12, 2007). Parker requested that theDistrict Court enter a judgment against him pursuant to Federal Rule of Civil Procedure58(d) in the event that the District Court denied his motion for reconsideration and motionfor leave to file a second amended complaint. We interpret this request as Parker’s intentto stand on his first amended complaint in the event that his motion for reconsiderationand motion for leave to file a second amended complaint were denied. Thus, we haveappellate jurisdiction pursuant to 28 U.S.C. § 1291.2 Parker also alleged that, at one point, he himself posted “Reason #6 ” to theUSENET. 5III.Our standard of review over a District Court’s dismissal under Federal Ruleof Civil Procedure 12(b)(6) is plenary. See Taliaferro v. Darby Twp. Zoning Bd., 458F.3d 181, 188 (3d Cir. 2006)(citation omitted). We accept as true all allegations of thecomplaint and all reasonable inferences that can be drawn therefrom. See id. We reviewa dismissal of claims for failure to comply with Federal Rule of Civil Procedure 8 forabuse of discretion. See In re Westinghouse Sec. Litig., 90 F.3d 696, 702 (3d Cir.1996)(citations omitted). A denial of a motion to amend the complaint is also reviewedfor abuse of discretion. See Krantz v. Prudential Invs. Fund Mgmt. LLC, 305 F.3d 140,144 (3d Cir. 2002)(citation omitted). IV.A. Direct Copyright Infringement In the first amended complaint, Parker alleged that his work entitled “29Reasons not to be a Nice Guy”
View Full Document
Unlocking...