NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER WAYNE FILLMORE, 

Plaintiff-Appellant, 

 v. 

BLUMHOUSE PRODUCTIONS, LLC; et al., 

Defendants-Appellees.

No. 17-56059 

D.C. No. 

2:16-cv-04348-AB-SS 

MEMORANDUM*

CHRISTOPHER WAYNE FILLMORE, 

Plaintiff-Cross-Appellee, 

 v. 

BLUMHOUSE PRODUCTIONS, LLC; et al., 

Defendants-Cross-Appellants.

No. 17-56360 

D.C. No. 

2:16-cv-04348-AB-SS 

Appeal from the United States District Court

for the Central District of California

Andre Birotte, Jr., District Judge, Presiding

Submitted June 5, 2019**

 

* 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).

FILED

JUN 7 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Christopher Wayne Fillmore appeals pro se the district court’s dismissal for 

failure to state a claim of his copyright infringement action against Blumhouse 

Productions, LLC, and other defendants. Defendants cross-appeal the district 

court’s denial of their motion for attorneys’ fees under the Copyright Act. We 

have jurisdiction under 28 U.S.C. § 1291. We review the dismissal de novo, 

Naruto v. Slater, 888 F.3d 418, 421 (9th Cir. 2018), and we review the denial of 

fees for an abuse of discretion, Shame on You Prods., Inc. v. Banks, 893 F.3d 661, 

665 (9th Cir. 2018). We affirm.

The district court properly exercised its discretion in taking judicial notice of 

Fillmore’s manuscript and defendants’ film because these works formed the basis 

of Fillmore’s claim, and he referred to them extensively in his first amended 

complaint. See Davis v. HSBC Bank Nev., N.A., 691 F.3d 1152, 1160 (9th Cir. 

2012) (decision to incorporate documents by reference into complaint is reviewed 

for abuse of discretion); United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 

2003) (discussing doctrine of incorporation by reference). Contrary to Fillmore’s 

assertions, the court did not dismiss his complaint because of inadequate pleading, 

but because he simply could not plead a plausible case for copyright infringement.

The district court correctly concluded that Fillmore failed sufficiently to 

allege defendants’ access via widespread dissemination of his manuscript. See 
3 

Three Boys Music Corp. v. Bolton, 212 F.3d 477, 482 (9th Cir. 2000) (standard for 

showing of access). The district court also correctly concluded that the plot, 

themes, dialogue, mood, setting, pace, characters, and sequence of events of the 

manuscript and film were markedly different and that, under the extrinsic test, the 

protectable elements of the two works were not substantially similar. See 

Skidmore v. Led Zeppelin, 905 F.3d 1116, 1125 (9th Cir. 2018) (standard for 

substantial similarity); Benay v. Warner Bros. Entm’t, Inc., 607 F.3d 620, 624-25

(9th Cir. 2010) (extrinsic test applicable at pleading stage objectively compares 

elements of works). Accordingly, the first amended complaint did not state a claim 

for copyright infringement. See Skidmore, 905 F.3d at 1125 (setting forth elements 

of copyright infringement claim). The district court properly exercised its 

discretion in dismissing the complaint with prejudice and without leave to amend 

because amendment would be futile. See Rentmeester v. Nike, Inc., 883 F.3d 1111, 

1125 (9th Cir. 2018), cert. denied, 139 S. Ct. 1375 (2019).

The district court properly weighed the relevant factors and acted within its 

discretion in denying defendants’ motion for attorneys’ fees under 17 U.S.C. 

§ 505. See Shame on You Prods., 893 F.3d at 665; Perfect 10, Inc. v. Giganews, 

Inc., 847 F.3d 657, 675 (9th Cir. 2017).

AFFIRMED.