Trombetta v. Novocin
| Decision Date | 19 March 2020 |
| Docket Number | CIVIL ACTION NO.: 18 Civ. 993 (RA) (SLC) |
| Parties | ANNAMARIE TROMBETTA, Plaintiff, v. NORB NOVOCIN, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Annamarie Trombetta ("Ms. Trombetta"), proceeding pro se, asserts several federal and state law claims seeking to recover damages from Defendants for purportedly advertising and selling online a low-quality painting, which they falsely advertised as being Ms. Trombetta's work and as a result of which she lost sales of her actual artwork and suffered other damages. (See ECF Nos. 1, 29, 33, 36). The case comes before the Court now on Ms. Trombetta's motion for leave to amend her complaint (ECF Nos. 29, 36) ("Motion to Amend"), and what Defendants Norb Novocin, Marie Novocin, and Estate Auctions Inc. (together, "EAI Defendants") label as a motion to dismiss (ECF No. 34).1 For the reasons set forth below, Ms. Trombetta's motion is GRANTED IN PART and DENIED IN PART.
The factual background of this case is set forth in detail in the decision of The Honorable Ronnie Abrams, United States District Judge, granting in part and denying in part the EAI Defendants' motion to dismiss Ms. Trombetta's original Complaint. See Trombetta v. Novocin, 414 F. Supp. 3d 625, 628-29 (S.D.N.Y. 2019). (See ECF Nos. 1, 3). Therefore, the Court will set forth only those additional facts pertinent to the pending motion, as taken from the allegations in Ms. Trombetta's proposed Amended Complaint,2 which the Court presumes to be true for purposes of the present motion. See Roth v. Jennings, 489 F.3d 499, 509-10 (2d Cir. 2007).
In August 2015, Ms. Trombetta, an artist who exhibits her work in New York City, discovered that the website Worthpoint.com, an online catalog of art sales and advertisements, had advertised and sold on eBay a painting (the "Painting") it misrepresented as being one of Ms. Trombetta's works. Trombetta, 414 F. Supp. 3d at 628. (ECF No. 36 at 2-3). When she learned of the post about the Painting, Ms. Trombetta contacted Worthpoint.com to inform them that she was not the artist who had created the painting advertised and sold on eBay. (ECF No. 36 at 3-4). In December 2015, Ms. Trombetta spoke with Worthpoint.com employee "Anita B.," and then, on February 3, 2016, she spoke with Gregory Watkins, Worthpoint.com's "WebsiteMaster." (Id. at 4, 33 (Ex. 5)). She asked both of them to remove permanently the fraudulent listing about the Painting. (Id. at 4, 32 (Ex. 2), 33 (Ex. 5)). On February 20, 2016, Ms. Trombetta sent a notice to the Worthpoint.com website as well as an email to William Sieppel, Worthpoint.com's founder and owner, relaying the requests she had made to the other Worthpoint.com employees and asking that the links to the false information about the Painting be removed. (Id. at 4, 33-34 (Ex. 5); ECF No. 33 at 7). In March 2016, Mr. Seippel instructed another Worthpoint.com employee to submit to Google requests to remove the links to the Painting. (Id. at 46 (Ex. 7). On January 4, 2017, after finding that Worthpoint.com still showed an unauthorized listing under her name, Ms. Trombetta again emailed Mr. Sieppel, asking that the listing be removed. (ECF No. 36 at 32 (Ex. 2)). Ms. Trombetta alleges that the internet link about the Painting was reposted on May 9, 2017. (ECF No. 36 at 7).
On June 18, 2018, Ms. Trombetta registered a copyright for her website, www.trombettaart.com, which contains her self-drafted biography, portfolio, and credentials. (ECF No. 36 at 47-48 (Ex. 8)).
On February 5, 2018, Ms. Trombetta filed her original Complaint asserting against the EAI Defendants "federal claims under the Lanham Act, the Copyright Act, and the Visual Artists Rights Act ("VARA"), as well as state law claims under the New York Civil Rights Law and the New York Artist's Authorship Rights Act." Trombetta, 414 F. Supp. 3d at 629. (ECF No. 1). In addition to damages of $76,000 for lost sales of her artwork and emotional injury, she sought a declaration that she did not create or sign the Painting. (ECF No. 1 at 16). On May 22, 2018, the EAI Defendants moved to dismiss (ECF No. 4), and in response, on January 17, 2019, Ms. Trombettafiled a letter attaching a copy of her copyright registration. (ECF No. 10). The District Court held a status conference, after which it stayed the case "pending the parties' settlement efforts," which were unsuccessful. Trombetta, 414 F. Supp. 3d at 629. Ms. Trombetta filed a supplemental opposition to the EAI Defendants' motion to dismiss, to which the EAI Defendants did not reply. (ECF No. 22). See Trombetta, 414 F. Supp. 3d at 629.
On October 2, 2019, the District Court issued a memorandum opinion and order (the "MTD Order"), granting in part and denying in part the EAI Defendants' motion to dismiss. (ECF No. 23). The District Court (1) dismissed with prejudice Ms. Trombetta's claims under Sections 50-51 of the New York Civil Rights Law, Section 14.03 of the New York Artist's Authorship Rights Act, and her trademark infringement claim under the Lanham Act; (2) dismissed without prejudice her Copyright Act claim; and (3) allowed her VARA claim to proceed. Trombetta, 414 F. Supp. 3d at 634. The District Court instructed Ms. Trombetta that if she chose to replead her Copyright Act claim, she must do so by November 4, 2019 and "she should reference her certificate of copyright registration in the allegations of her proposed Amended Complaint and that she should attach it thereto." Id.
On December 3, 2019, after receiving an extension of time to file her proposed Amended Complaint (ECF No. 25), Ms. Trombetta filed her Motion to Amend. (ECF No. 29). In the Motion to Amend, Ms. Trombetta sought to add Mr. Sieppel and Worthpoint.com Corporation as Defendants (together, the "Worthpoint Defendants"), attached her copyright registration in support of her Copyright Act claim in compliance with the District Court's instruction, and made arguments concerning the claims that the District Court had dismissed with prejudice (LanhamAct, New York Artist's Authorship Rights Act, and New York Civil Rights Law), but did not attach a proposed Amended Complaint. (Id. at 1, 8; ECF No. 29-2 at 9).
To address the defects in the Motion to Amend, on December 16, 2019, the Court held a conference, following which it issued an order instructing Ms. Trombetta to file a proposed Amended Complaint that "may only include: (1) the proposed amended copyright infringement claim; (2) the [VARA] claim; and (3) the basis, if any, for adding William Seipp[el] and Worthpoint Corporation as defendants in this action at this time." (ECF No. 32).
On January 17, 2020, Ms. Trombetta filed a "Proposed Amended Complaint." (ECF No. 33). This pleading added the Worthpoint Defendants, asserted federal claims under the VARA, the Lanham Act, and the Copyright Act, and asserted state law claims under Sections 50-51 of the New York Civil Rights Law and Section 14.03 of the New York Artist's Authorship Rights Act. (Id. at 14). Notwithstanding instructions from both the District Court and this Court (see ECF Nos. 23, 32), the pleading did not attach a copy of Ms. Trombetta's copyright registration or otherwise contain any allegations concerning her copyright registration.
On January 31, 2020, the EAI Defendants opposed the Motion to Amend by filing what they labeled as a motion to dismiss the "Proposed Amended Complaint" pursuant to Federal Rule of Civil Procedure 12(b)(6). (ECF Nos. 34-35). The EAI Defendants argued that the claims that the District Court already dismissed with prejudice should be dismissed, and that the copyright claim failed because Ms. Trombetta failed to attach the copyright registration or otherwise allege that her biography was covered by a copyright registration. (ECF No. 35 at 3).
On February 21, 2020, Ms. Trombetta submitted her Response in Opposition to Defendants' Motion to Dismiss, in which she describes claims for direct and contributorycopyright infringement, violation of the Digital Millennium Copyright Act ("DMCA"), defamation, the Lanham Act, claims under Sections 50-51 of the New York Civil Rights Law and Section 14.03 of the New York Artist's Authorship Rights Act, and the VARA. (ECF No. 36). She also includes allegations in support of her copyright registration, a copy of which she attaches. (ECF No. 36 at 12, 47-48). As set forth above (see supra n.1), the Court interprets this filing as the operative proposed Amended Complaint for purposes of evaluating the parties' motions.
1. Motion to amend
Under Federal Rule of Civil Procedure 15, the Court may permit a party to amend its pleading "when justice so requires." Fed. R. Civ. P. 15(a)(2). Leave may be denied as futile if the proposed amended pleading could not withstand a motion to dismiss. See Oneida Indian Nation of N.Y. v. City of Sherrill, 337 F.3d 139, 168 (2d Cir. 2003) (internal citation omitted); Griffith-Fenton v. Coldwell Banker Mortg., No. 13 Civ. 7449 (VB), 2014 WL 6642715, at *1 (S.D.N.Y. Oct. 17, 2014). The party opposing the proposed amendment bears the burden of establishing that the amendment would be futile. See Ballard v. Parkstone Energy, LLC, No. 06 Civ. 13099 (RWS), 2008 WL 4298572, at *3 (S.D.N.Y. Sept. 19, 2008).
In the MTD Order, the District Court dismissed with prejudice Ms. Trombetta's claims under Sections 50-51 of the New York Civil Rights Law, Section 14.03 of the New York Artist'sAuthorship Rights Act, and the Lanham Act. Trombetta, 414 F. Supp. 3d at 634. The District Court explained that each of these claims suffered from a "substantive" problem that could not be cured, and therefore, denied leave to amend as "futile." Id. Accordingly, Ms. Trombetta's Motion to Amend to reassert each of these claims is DENIED, and the Court will deem...
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