CAFC Affirms Ticketing Companies’ Motions to Dismiss Due to Pro Se Plaintiff’s Failure to Timely Oppose

The U.S. Court of Appeals for the Federal Circuit (CAFC) today affirmed the dismissal of a pro se patent owner’s claims against Live Nation, Ticketmaster, Major League Baseball and several law firms, concluding that the plaintiff waived her appellate arguments by failing to oppose the defendants’ dismissal motions in district court.

In a nonprecedential, per curiam decision of a panel comprising Judges Stoll, Cunningham and Stark, the court said attorney Amy Rebecca Gurvey’s argument that the district court had dismissed her case “sua sponte” was mistaken. Instead, said the CAFC, the defendants had moved to dismiss, and the district court granted their unopposed motions after Gurvey first failed to respond within the original timeline, and then failed to respond again after being given additional time. The decision leaves the dismissals in place without reaching the underlying patent-infringement allegations.

Gurvey said she owns several U.S. patents generally describing a ticketing and sports-betting management system. “Since at least 2006, she has brought a series of federal and state court actions alleging that various combinations of the companies infringed her patents, conspired to do so, or conspired to deny her access to the courts,” said the CAFC.

The appeal arose from a complaint Gurvey filed in the Central District of California in June 2023. The defendants filed motions to dismiss. Under the district court’s standing order, oppositions were due within 14 days. Gurvey did not meet that deadline, and the district court extended the time to oppose most of the motions until February 2, 2024, but she still did not file oppositions within the time frame.

In September 2024, the district court granted the motions as to all defendants except Baker Botts, noting that Gurvey had not filed an opposition before the scheduled hearing. The following March, the court denied Gurvey’s motion for reconsideration and granted Baker Botts’ separate motion to dismiss. Although Gurvey had not filed a substantive opposition to Baker Botts’ motion either, the district court addressed it on the merits and held that the claims against the firm were barred by the Noerr-Pennington doctrine, which generally shields companies from liability when they join together to petition the government for action.

On appeal, Gurvey argued that the district court had dismissed her complaint sua sponte. The Federal Circuit rejected that characterization. The defendants had filed motions to dismiss, the court explained, and the district court acted under its local rules after Gurvey failed to respond both by the original deadline and after receiving an extension.

The CAFC said arguments not raised before the trial court—or presented there only in skeletal form—may be deemed waived on appeal. Because Gurvey had not opposed the dismissal motions, the court concluded that she had waived her substantive arguments. It also noted that Gurvey’s litigation history showed she was familiar with trial-court proceedings and that her failure to respond could not be attributed to “an oversight by an inexperienced pro se litigant.”

The opinion also mentioned in a footnote that Gurvey did not challenge the relevant basis for Baker Botts’ dismissal—the district court’s application of Noerr-Pennington—so that issue, too, was waived.

The CAFC did not address whether the defendants’ conduct infringed Gurvey’s patents, whether the patents cover the ticketing or sports-betting systems at issue, or whether her other theories had merit.