Albert v. Embassy of Music GMBH

Background

Marcel Albert, representing himself, sued Embassy of Music GMBH and YouTube, LLC. The complaint alleged violations of the Digital Millennium Copyright Act and unjust enrichment involving the song “Endless Summer.” Albert alleged that he acted as the exclusive monetization agent for Tuukka’s Tracks KY and was entitled to revenue generated by the song on YouTube. After Albert filed a copyright takedown notice, YouTube removed the content; Embassy then filed a counter-notice, and YouTube reinstated the content.

Albert had already amended his complaint once as a matter of course. He sought permission to file a second amended complaint adding Jennifer Lee Taylor as a defendant and adding claims based on a demand letter Taylor sent after the lawsuit began. The proposed claims included libel and slander, tortious interference with contract, and negligence of defense counsel. Google opposed amendment and moved to dismiss the claims against it. Albert also moved to strike Taylor’s opposition and related materials under Federal Rule of Evidence 408, which concerns statements and offers made during settlement negotiations.

Dismissal of Google

The court rejected Albert’s argument that Google’s motion to dismiss was moot. Albert had filed a motion seeking permission to amend, rather than an amended complaint, so Google could still challenge the operative First Amended Complaint.

The court granted Google’s motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. The only count directed at Google was titled “Preliminary Injunction against Defendant YouTube LLC.” The court explained that an injunction is a remedy, not an independent legal claim. It also found that, even construing Albert’s filings liberally because he was representing himself, Albert had not identified a legal theory under which YouTube’s alleged failure to follow its own policies would make Google liable.

The court therefore granted Google’s Motion to Dismiss the First Amended Complaint as to Google and dismissed count three. In the conclusion, the court stated that this dismissal was with prejudice. Because the proposed Second Amended Complaint had the same defect, the court denied leave to amend claims against Google.

Request to Add Taylor and New Claims

The court denied Albert’s Motion to Amend. It relied on California’s litigation privilege, which provides absolute immunity from tort liability for qualifying communications made in connection with judicial proceedings. The court found that Taylor sent the demand letter after the lawsuit began, identified the action, addressed allegations in the complaint, and sought to persuade Albert to withdraw his claims. The court concluded that the letter was sufficiently connected to the litigation to receive the privilege.

The court held that the privilege barred Albert’s proposed libel claim based on the letter. It also held that the privilege barred the proposed negligence claim against Taylor. The court stated that even if Albert could prove Taylor’s allegations were false, the statements would still be protected. Because the proposed Second Amended Complaint failed to state a claim against Taylor, amendment would be futile, and the court denied leave to amend. The court did not address Taylor’s other privilege arguments or the alleged substantive defects in the proposed claims.

Motion to Strike

The court denied Albert’s Motion to Strike. Albert argued that Taylor’s opposition, declarations, and exhibits contained communications protected by Rule 408 because some were labeled “Without Prejudice,” “For Settlement Purposes only,” or similar language.

The court found that none of the communications were made during compromise negotiations. It held that a settlement-related label alone does not establish settlement negotiations without an agreement or shared understanding to that effect. The court also found that some communications did not mention an offer to compromise, while others were only invitations to begin settlement discussions or could be viewed as threats. The court further noted that two communications were sent by Tuukka’s Tracks, which was not a party to the lawsuit, and that one communication stated Tuukka’s Tracks lacked authority to settle Albert’s lawsuit.

Disposition

The court denied the Motion to Amend and denied the Motion to Strike. It granted Google’s Motion to Dismiss the First Amended Complaint as to Google with prejudice. Judge Edward J. Davila signed the order on July 27, 2020.