Oust Not Necessarily Due to Facts of the Copyright Case
TSSZ has learned the side lawsuit Ken Penders filed last year against both Sega and Electronic Arts has been dismissed without prejudice in the US District Court for the Central District of California. We first told you about the filing in June.
Public records obtained by TSSZ show the dismissal stemmed far from the strength of Penders’s case or both Sega and EA’s rebuttal, but rather a procedural technicality. Attorneys representing both corporate defendants cited the first-to-file rule, which in a nutshell means Penders shouldn’t file a parallel legal action concerning the copyrights he currently holds to several characters and stories from the Archie Sonic comics while the main suit–that being Archie’s challenge of those copyrights–remains unresolved. US Distrtict Judge Otis Wright agreed; and according to his order, this is actually the second time this particular matter has been dismissed:
Rather than waiting for a resolution in the New York Action or otherwise challenging this Court’s September 26, 2011 Order in the California Action, however, Plaintiff opted on September 30, 2011—four days after the Court’s Order dismissing the California Action—to re-file in this district an action identical to the California Action. (Dkt. No. 1.) Moreover, in filing the present action, Plaintiff neglected to file a Notice of Related Case. Such procedural maneuvering is not well taken, nor will it be tolerated.
However, because the dismissal was given without prejudice, it means Penders can re-file this lawsuit once Archie v. Penders is resolved, regardless of that outcome.
Of note in the Motion to Dismiss is this passage, which indicates attorneys for the defense did meet with Penders and his counsel once served:
Shortly after they were served in mid-December 2011, Defendants met and conferred with Plaintiff regarding the substance of this motion as required by L.R. 7-3, but were unable to reach any stipulations to avoid its filing.
The bottom line: The viability of this case now rests on the resolution of Archie v. Penders. Should Archie prevail, it doesn’t necessarily prevent Penders from filing a claim, but it could be significantly weakened, especially if Archie successfully wins a court order voiding Penders’s copyrights. But if Penders wins, seeing how little attention was paid to the copyrights themselves in the motion to dismiss, both Sega and EA may be facing a mountain of trouble.