Cianelli v. Nourison Indus., Inc.

• Decision Date: 20 August 2020
• Docket Number: Civil Action No. 3:19-cv-19147(FLW)
• Parties: JAISON CIANELLI, Plaintiff, v. NOURISON INDUSTRIES, INC., BED BATH & BEYOND, INC., HOME DEPOT U.S.A., INC., KOHL'S CORPORATION, WALMART, INC., and QVC, INC., Defendants.
• Court: U.S. District Court — District of New Jersey

JAISON CIANELLI, Plaintiff, v. NOURISON INDUSTRIES, INC., BED BATH & BEYOND, INC.,HOME DEPOT U.S.A., INC., KOHL'S CORPORATION, WALMART, INC., and QVC, INC., Defendants.

Civil Action No. 3:19-cv-19147(FLW)

UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY

August 20, 2020

*NOT FOR PUBLICATION*

OPINION

WOLFSON, Chief Judge

:

This case arises out of a copyright dispute between Plaintiff Jaison Cianelli ("Plaintiff" or "Cianelli") and Defendants Nourison Industries, Inc., Bed Bath & Beyond, Inc., Home Depot, U.S.A., Inc., Kohl's Corporation, Walmart, Inc., and QVC, Inc. (collectively, "Defendants").¹ In his Amended Complaint, Cianelli alleges that Defendants used his paintings to make and sell rugs, in violation of 17 U.S.C. § 101 et seq. See Dkt. 29 ¶¶ 1, 12-14, 21-29. Defendants move to dismiss the Amended Complaint on the grounds that it is not timely and, in any event, does not state a plausible claim of copyright infringement. See Mot. to Dismiss, at 5-6. For the reasons set forth below, Defendants' Motion to Dismiss is GRANTED.

I. BACKGROUND AND PROCEDURAL HISTORY

Cianelli is an artist specializing in acrylic-based, abstract paintings. See Am. Compl., ¶ 5. In 2010 and 2012, he painted two works, which are the subject of this litigation. One is titled "AHeart So Big." See Am. Compl. Ex. B. The other is titled "Mother Earth." See id. Ex. C. The United States Copyright Office registered both paintings on September 16, 2019. See id. at 3-4; Ex. B-C. In his Amended Complaint, Cianelli alleges that, "[s]ometime after 2012," Nourison "copied [his] paintings" into rugs, then "distributed" the rugs to Bed Bath & Beyond, Home Depot, Kohl's, Walmart, and QVC, who sold them online and in stores, all without his consent and in violation of 17 U.S.C. §§ 106, 500. Id. at 3-5.

Cianelli filed his original Complaint on October 20, 2019. On January 17, 2020, Defendants moved to dismiss on various grounds. Cianelli did not oppose Defendants' motion. Instead, he filed the operative Amended Complaint on February 10, 2020. On February 26, 2020, Defendants filed the present motion, arguing that the Amended Complaint violates Fed. R. Civ. P. 15(a)(1) and Local Civ. R. 15.1, and that leave to further amend should be denied as futile because Cianelli (1) fails to state a claim for copyright infringement or (2) properly allege personal jurisdiction over Home Depot, Kohl's, and Walmart. See Mot. to Dismiss, at 5-6.

II. STANDARD OF REVIEW

Fed. R. Civ. P. 8(a)(2) requires a complaint to set forth "a short and plain statement of the claim showing that a pleader is entitled to relief." The Rule 8 pleading standard does not require detailed factual allegations. It does, however, demand "more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Specifically, a complaint "must contain sufficient factual matter, accepted as true, 'to state a claim to relief that is plausible on its face.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A claim is plausible when "the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "The plausibility standard isnot akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Id. (quoting Twombly, 550 U.S. at 557). Thus, while a court must accept as true all well-pleaded factual allegations in a complaint, and draw all reasonable inferences in favor of the non-moving party, see Phillips v. Cnty. of Allegheny, 515 F.3d 224, 231 (3d Cir. 2008), it need not entertain "[a] pleading that offers 'labels and conclusions' or a 'formulaic recitation of the elements of a cause of action.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "[I]f a complaint is subject to a Rule 12(b)(6) dismissal," however, "a district court must permit a curative amendment unless such an amendment would be inequitable or futile." Phillips, 515 F.3d at 245; see also Grayson v. Mayview State Hosp., 293 F.3d 103, 108 (3d Cir. 2002); Shane v. Fauver, 213 F.3d 113, 116 (3d Cir. 2000).²

Finally, under Fed. R. Civ. P. 15(a)(1), a plaintiff may amend a complaint as a matter of right no more than 21 days after a defendant serves a motion to dismiss. "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." Fed. R. Civ. P. 15(a)(2). "The court should freely give leave when justice so requires," id., and "a refusal of a motion for leave to amend must be justified." Riley v. Taylor, 62 F.3d 86, 90 (3d Cir. 1995) (internal citation omitted). "Permissible justifications include: (1) undue delay; (2) bad faith or dilatory motive; (3) undue prejudice to the opposition; (4) repeated failures to correct deficiencies with previous amendments; and (5) futility of the amendment." Id.; see also Inventel Products, LLC v. Li, No. 2:19-9190, 2019 WL 5078807, at *3 (D.N.J. Oct. 10, 2019); Ragner Tech. Corp. v. Berardi, 324 F. Supp. 3d 491, 518 (D.N.J. 2018). Local Rule 15.1 expands on the rules governing leave to amend. It requires a party who seeks leave to do so by motion. That motionmust include a copy of the proposed amended pleading and a statement of the ways in which it differs from the pleading it proposes to amend, by bracketing or striking through materials to be deleted and underlining materials to be added. Failure to comply with Rule 15.1 "complicates this Court's review of the relevant documents and, in and of itself, is an error significant enough to warrant denial of Plaintiff's motion." Lax v. City of Atlantic City, No. 19-7036, 2019 WL 7207472, at *6 (D.N.J. Dec. 27, 2019); see also Sammut v. Valenzano Winery LLC, No. 18-16650, 2019 WL 2498767, at *5, n.2 (D.N.J. June 17, 2019); A.B. v. Vineland Bd. of Educ., No. 17-11509, 2019 WL 2354609, at *5 (D.N.J. June 4, 2019) (dismissing a complaint because the plaintiff "did not properly indicate how the Amended Complaint differs from her original one).

III. DISCUSSION

Defendants move to dismiss the Amended Complaint because it was filed without leave of Court, in violation of Fed. R. Civ. P. 15 and Local Civ. R. 15.1. See Opp. Br., at 5. Regardless of this procedural defect, Defendants argue that the Amended Complaint fails to state a claim for copyright infringement against any Defendant or properly allege personal jurisdiction over Home Depot, Kohl's, and Walmart. Id. Because "the Amended Complaint contains either conclusory or no allegations regarding Defendants' purported copying or when Defendants' infringement occurred," Defendants contend, it would be futile to deem it to be timely or to grant Plaintiff leave to refile for a third time. Id. at 5-6.

A. Personal Jurisdiction

To begin, Defendants argue that Plaintiff's Amended Complaint fails to establish that this Court has personal jurisdiction over Walmart, Home Depot, and Kohl's. See Mot. to Dismiss, at 17-18. Plaintiff responds that Walmart, Home Depot, and Kohl's waived any objection to personaljurisdiction by failing to raise it in their initial motion to dismiss, which they filed on January 17, 2020, in response to Plaintiff's original Complaint. See Opp. Br., at 14-15.

"Because the requirement of personal jurisdiction represents first of all an individual right, it can, like other such rights, be waived." Insurance Corp. of Ireland, Ltd., et al. v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). "A party who fails to raise personal jurisdiction as a defense in a Rule 12 motion waives the defense and cannot raise it in an answer or in a subsequent motion." Hull v. Glob. Digital Sols., Inc., No. 16-5153, 2018 WL 4380999, at *11 (D.N.J. Sept. 14, 2018) (citing Myers v. American Dental Ass'n, 695 F.2d 716, 720 (3d. Cir. 1982)); see also Rates Technology v. Nortel Networks Corp., 399 F.3d 1302, 1307 (Fed. Cir. 2005), cert. denied, 545 U.S. 1141 (2005) (stating that Rule 12(h) "advises a litigant to exercise great diligence in challenging personal jurisdiction . . . [and this defense must be raised] at the time the first significant defensive move is made.") (internal quotations and citations omitted); Fed. R. Civ. P. 12(h)(1)(B)(i). Here, Defendants did not object to personal jurisdiction until they moved to dismiss Plaintiff's Amended Complaint on February 26, 2020, even though that defense was available to them when they moved to dismiss Plaintiff's original Complaint. The Court, therefore, deems the defense to be waived. See Hull, 2018 WL 4380999 at *11 (noting that the "filing of an amended complaint will not revive the right to present by motion defenses that were available but were not asserted in timely fashion prior to the amendment of the pleading"); Avraham v. Golden, No. 18-11795, 2020 WL 2214535, at *4 (D.N.J. May 7, 2020) (citing Hull and holding that defendant waived its objection to personal jurisdiction by failing to raise it in his first motion to dismiss); Bell v. Lockheed Martin Corp., Nos. 08-6292, 10-4297, 2011 WL 1467365, at *9 (D.N.J. Apr. 18, 2011) (noting that the very act of failing to timely object voluntarily submits a defendant to jurisdiction and constitutes meaningful participation in a proceeding); Chan v. Countyof Lancaster, No. 10-3424, 2012 WL 4510776, at *13 (E.D. Pa. Sept. 28, 2012) (explaining that Rule 12 "prohibits a party from raising a defense or objection in a Rule 12 motion that was previously available to the party but omitted from its earlier motion"; see also 5C C. Wright & A. Miller, Fed. Prac. & Proc. Civ. § 1391 (3d ed. Apr. 2020 Update).

B. The Timeliness of Plaintiff's Amended Complaint

Next, I address the timeliness of Plaintiff's Amended Complaint. Plaintiff admits that his counsel missed the deadline to amend as of right, which expired on February 7, 2020, instead filing the Amended...