Adlife Mktg. & Commc'ns Co. v. Best Yet Mkt., Inc.
| Decision Date | 24 September 2018 |
| Docket Number | 2:17-cv-2978 (ADS)(ARL) |
| Parties | ADLIFE MARKETING & COMMUNICATIONS CO., INC., Plaintiff, v. BEST YET MARKET, INC., Defendant. |
| Court | U.S. District Court — Eastern District of New York |
APPEARANCES:
HIGBEE & ASSOCIATES
Attorneys for the Plaintiff
Santa Ana, CA 92705
By: Rayminh L. Ngo, Esq., Of Counsel
41 Madison Avenue, 38th Floor
New York, NY 10010
By: Nancy Evelyn Wolff, Esq., Of Counsel
The Plaintiff, Adlife Marketing & Communications Co., Inc., ("Adlife" or the "Plaintiff") commenced this action against the Defendant, Best Yet Market, Inc. ("Best Yet" or the "Defendant"), for damages stemming from allegations of copyright infringement of a collection of the Plaintiff's photographs. The complaint, which invokes the Court's jurisdiction under 28 U.S.C. § 1331 and 28 U.S.C. § 1338(a), alleges causes of action resulting from violations of the Federal Copyright Act of 1976 (the "Copyright Act"), 17 U.S.C. § 101 et seq.
On October 11, 2017, the Court granted the Defendant's motion to dismiss the complaint, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("Rules" or "FED. R. CIV. P."), and granted the Plaintiff leave to file an amended complaint that cured the deficiencies within 30 days. See Docket Entry ("Dkt.") 12 (the "Order").
On November 3, 2017, the Plaintiff filed an amended complaint that, according to the parties, cured the deficiencies identified in the Court's Order. See Dkt. 13. The Defendant answered the first amended complaint on December 1, 2017. See Dkt. 16. Along with the answer, the Defendant attached several exhibits, including invoices and part of a licensing agreement between the Defendant and Multi-Ad Services, Inc. ("Multi-Ad"). Multi-Ad is a third-party licensing agency that purportedly licensed the Plaintiff's photography to the Defendant.
On March 8, 2018, Magistrate Judge Arlene R. Lindsay issued a scheduling order that required the parties to file all amendments to pleadings on or before May 14, 2018. See Dkt. 22.
On May 14, 2018, the Plaintiff filed the instant motion to amend the complaint along with the proposed second amended complaint. The background of this case is set forth in the Order and familiarity with that decision is assumed.
All discovery is to be completed in this case on or before November 19, 2018.
For the reasons set forth below, the motion by the Plaintiff is granted.
FED. R. CIV. P. 15(a), which typically governs a motion to amend a complaint, states, in relevant part, FED. R. CIV. P.15(a)(2). Unless there is a showing of bad faith, undue delay, futility or undue prejudice to the non-moving parties, the district court should grant leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962) (); Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001) (internal citations omitted); Hemphill v. Schott, 141 F.3d 412, 420 (2d Cir. 1998). The decision on whether to grant a motion to amend rests within the sound discretion of the district court. Aetna Cas. & Sur. Co. v. Aniero Concrete Co., 404 F.3d 566, 603-04 (2d Cir. 2005); Hemphill, 141 F.3d at 420; John Hancock Mut. Life Ins. Co. v. Amerford Int'l Corp., 22 F.3d 458, 462 (2d Cir. 1994).
In the instant case, the Plaintiff seeks to amend the complaint to add substantial detail to its copyright infringement claim as well as 32 additional photographs to that claim. The Plaintiff alleges that the proposed changes "simply ... augment the description of facts surrounding Defendant's infringement," while the Defendant contends that Adlife "seek[s] to introduce new theories of infringement." The Defendant further asserts that the Plaintiff knew of the underlying facts upon which the amendment is based prior to the commencement of this suit; that the proposed amendments are futile; that the Defendant will suffer undue prejudice; and that it proposes inconsistent changes to dates without explanation.
At the core of Best Market's argument is that the proposed amendments materially alter the Plaintiff's copyright infringement claims. Specifically, the Defendant asserts that Adlife's cause of action is a "moving target" that continues to evolve in an effort to avoid dismissal. The proposed amendments add a substantial amount of additional detail to the claim and alter the nature of portions of the claim. See Dkt. 25-1 ¶¶ 52-55. While the Defendant maintains that these are "in anticipation of [their] likely dismissal," the Plaintiff reasons that these additional facts were based on information discovered in Best Yet's answer.
Federal courts have consistently granted motions to amend where "it appears that new facts and allegations were developed during discovery, are closely related to the original claim, and are foreshadowed in earlier pleadings." Xpressions Footwear Corp. v. Peters, Nos. 94 Civ. 6136, 95 Civ. 8242, 95 Civ. 8243, 1995 WL 758761, at *2 (S.D.N.Y. Dec. 22, 1995). The Defendant's answer and subsequent exhibits contained new facts that ultimately developed into the proposed amendments. These refined aspects of the claim do not make Adlife's complaint a "moving target," but merely add additional facts to the original cause of action. See id. This creates a more focused, narrowly-tailored claim than that which is present in the current version of the complaint.
Even if Adlife's proposed amendments added additional claims or could be considered a "moving target," the proposed amendments would remain proper. The Plaintiff justifies the amendments by noting that at the time of the original complaint, Adlife did not possess the documents that were part of the Defendant's answer. While the Defendant notes that the Plaintiff may have known of the existence of a potential license agreement, the record also contains information that suggests that the Plaintiff did not know that there was a potentiallicense, let alone its details. To the extent that the Defendant argues that the Plaintiff knew of the license agreement, this is a factual dispute that the Court will not resolve on a motion to amend. See, e.g., Ray v. Weit, 708 F. App'x 719, 722 (2d Cir. 2017) (summary order) ("[A] factual dispute ... could not have been resolved on a motion to dismiss); Henry Avocado Corp. v. Z.J.D. Brother, LLC, No. 17-CV-4559 (ARR), 2017 WL 6501864, at *5 (E.D.N.Y. Dec. 19, 2017) (); Vale v. Great Neck Water Pollution Control Dist., 80 F. Supp. 3d 426, 438 (E.D.N.Y. 2015) (Spatt, J.) ( ). Accordingly, the Court will not reject the proposed amendments based on a factual dispute better addressed during a potential trial. At the present stage, the Plaintiff's assertion that it only recently became aware of the facts which were integrated into the proposed amendments adequately explains the lack of inclusion in the original complaint. See Enzymotec Ltd. v. NBTY, Inc., 754 F. Supp. 2d 527, 537 (E.D.N.Y. 2010) (Spatt, J.) ().
Further, there is no indication that bad faith motivated the Plaintiff's failure to include these facts in the original complaint. As Rule 15 dictates that the Court "should freely give leave when justice so requires," FED. R. CIV. P. 15(a)(2), the Court does not believe that the conduct alleged by the Defendant rises to a level that would prompt this Court to decline to exercise its discretion to grant the motion.
The Defendant asserts that the proposed amendments would prejudice Best Yet. In assessing the likelihood of prejudice, the Court examines whether the proposed amendment would "'(i) require the opponent to expend significant additional resources to conduct discovery and prepare for trial; (ii) significantly delay the resolution of the dispute or (iii) prevent the plaintiff from bringing a timely action in another jurisdiction.'" Ross Prod. Div. Abbott Labs. Inc. v. Saper, No. CV 06-3264, 2007 WL 1288125, at *2 (E.D.N.Y. Apr. 26, 2007) (quoting Block v. First Blood Assocs., 988 F.2d 344, 350 (2d Cir. 1993)); accord Ruotolo v. City of New York, 514 F.3d 184, 192 (2d Cir. 2008). The Defendant's primary contention is that,
Parties are constantly required to adjust their strategy based on discovery, orders by a court, and a variety of other circumstances both within and outside of their control. As the Defendant knows, a strategy will shift throughout the lifecycle of a case. In the instant case, a review of the docket reveals a series of orders that likely required the Defendant to deviate...
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