NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BUFFY LYN RONEY; et al., 

Plaintiffs-Appellants, 

 v. 

MICHAEL MILLER, DBA Falcon Press, 

Inc. and UNITED STATES 

ECCLESIASTICAL SOCIETY & 

SEMINARY, DBA New Falcon 

Publications, a corporation, 

Defendants-Appellees.

No. 16-55717 

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

MEMORANDUM*

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.

FILED

DEC 11 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

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.
3 

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,2and 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. 
4 

[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.