Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 1 of 13
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No.: 22-cv-02621-PAB-NRN
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`ANTHONY PROCOPIS (d/b/a Slot It Golf),
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`Plaintiff,
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`v.
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`STEEPWARE LLC (d/b/a Eyeline Golf) and SAMUEL FROGGATTE,
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`Defendants.
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Pursuant to at least Fed. R. Civ. P. 15(a)(2) and D.C.COLO.LCivR 15.1(b), Defendants
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`Steepware LLC (d/b/a Eyeline Golf) (“Steepware”) and Samuel Froggatte ("Froggatte")
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`collectively (“Defendants”), hereby move for leave to amend their First Amended Answer
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`(ECF No. 11) to set forth a claim of copyright infringement for the reasons set forth herein.
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`Under Fed. R. Civ. P. 15(a)(2), “a party may amend its pleading only with the opposing
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`STANDARD
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`party's written consent or the court's leave. The court should freely give leave when justice so
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`requires.” An amendment to the pleadings may only be refused when there is "undue delay, bad
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`faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
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`amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
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`of the amendment, [and] futility of the amendment." Forman v. Davis, 371 U.S. 178, 182
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`(1962).
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Civil Action No.: 22-cv-02621-PAB-NRN
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLORADO
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`Civil Action No.: 22-cv-02621-PAB-NRN
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`ANTHONY PROCOPIS (d/b/a Slot It Golf),
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`Plaintiff,
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`v.
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`STEEPWARE LLC (d/b/a Eyeline Golf) and SAMUEL FROGGATTE,
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`Defendants.
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Pursuant to at least Fed. R. Civ. P. 15(a)(2) and D.C.COLO.LCivR 15.1(b), Defendants
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`Steepware LLC (d/b/a Eyeline Golf) (“Steepware”) and Samuel Froggatte ("Froggatte")
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`collectively (“Defendants”), hereby move for leave to amend their First Amended Answer
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`(ECF No. 11) to set forth a claim of copyright infringement for the reasons set forth herein.
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`Under Fed. R. Civ. P. 15(a)(2), “a party may amend its pleading only with the opposing
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`STANDARD
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`party's written consent or the court's leave. The court should freely give leave when justice so
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`requires.” An amendment to the pleadings may only be refused when there is "undue delay, bad
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`faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
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`amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
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`of the amendment, [and] futility of the amendment." Forman v. Davis, 371 U.S. 178, 182
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`(1962).
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 2 of 13
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`BACKGROUND
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`The Complaint in this action was filed on October 7, 2022. ECF No. 1.
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`Defendants filed their Answer on November 3, 2022. ECF No. 8. In response to
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`1.
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`Plaintiff’s Motion to Strike their inequitable conduct affirmative defense, Defendants filed a
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`First Amended Answer on December 9, 2022. ECF No. 11.
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`3.
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`In furtherance of their defense strategy and counterclaims, Defendant Steepware LLC
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`quickly desired to pursue a copyright infringement counterclaim against Plaintiff Anthony
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`Procopis. Under federal law, counter-plaintiff Steepware LLC could not assert such a
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`counterclaim until it had obtained a copyright registration certificate from the U.S. Copyright
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`Office. See 17 U.S.C. § 411(a); Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, LLC, 586
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`U.S. ___, 139 S. Ct. 881, 203 L.Ed.2d 147 (2019).
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`4.
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`Counter-plaintiff Steepware LLC promptly filed a copyright application for the Speed
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`Trap 1.0 in November 2022.
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`5.
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`The Copyright Office recently granted and mailed a copyright registration regarding the
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`Speed Trap 1.0, assigning U.S. Copyright Registration No. TX0009209828 with an effective
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`date retroactively assigned back to November 2022.
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`6.
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`Having received the registration certificate from the U.S. Copyright Office, counter-
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`plaintiff Steepware LLC now desires to amend its pleading to assert a copyright infringement
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`counterclaim against counter-defendant Anthony Procopis and respectfully requests leave to so
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`amend its First Amended Answer.
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 3 of 13
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`As shown in underlines in the attached Exhibit, Defendants desire to add the following
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`PROPOSED AMENDMENT
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`paragraphs to the end of the body of their First Amended Answer to assert a copyright
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`infringement claim against Anthony Procopis and his Slot It Golf swing trainer:
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`COUNT THREE
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`(Copyright Infringement of Speed Trap 1.0
`and U.S. Copyright Registration No. TX0009209828)
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`46. Defendant/Counter-plaintiff Steepware LLC repeats and realleges paragraphs 1 through 19 as
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`if fully set forth herein.
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`47. Counter-plaintiff Steepware LLC is the owner of copyrighted design artwork embodied in the
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`Speed Trap 1.0 product.
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`48. The Speed Trap 1.0 copyrighted design artwork is shown as follows:
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 4 of 13
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`49. The Speed Trap 1.0 design artwork is an original work of authorship created in 2013.
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`50. The Speed Trap 1.0 design artwork has been published for nearly a decade.
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`51. Counter-plaintiff Steepware, LLC has at all relevant times owned the right, title, and interest
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`in and to the copyright of the Speed Trap 1.0 design artwork.
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`52. Subsequent to counter-plaintiff’s publication of the Speed Trap 1.0 design artwork, Counter-
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`defendant Anthony Procopis obtained possession of the Speed Trap 1.0 and willfully copied it.
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`53. Anthony Procopis has previously publicly admitted that he had possession of counter-
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`plaintiff Steepware LLC’s design artwork and that he copied the Speed Trap 1.0 design to
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`unlawfully create a copy or derivative work. See, e.g., https://ecomcrew.libsyn.com/2018, Ep
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`209, 19:44-2023 (“The other idea is … or to actually go straight to the brand name who I sort of
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`copied but improved upon their product…”).
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`54. The early prototype of Counter-defendant Anthony’s Procopis’s Slot It Golf swing trainer is
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`exemplarily shown as follows:
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`55. Counter-defendant Anthony Procopis intentionally modified the design of his prototype to
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`copy even more of the counter-plaintiff’s copyrighted Speed Trap 1.0 design.
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`56: Counter-defendant Anthony Procopis’s commercially sold Slot It Golf swing trainer is
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`exemplarily shown in the following images:
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 7 of 13
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`57. As shown in the following exemplary comparison images, the counter-defendant’s Slot It
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`Golf swing trainer infringes and copies the Speed Trap 1.0 copyrighted design:
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 8 of 13
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`58. Counter-defendant Anthony Procopis has, without counter-plaintiff Steepware LLC’s
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`authorization, created, caused to be manufactured, displayed, offered for sale, imported, and sold
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`an infringing golf swing trainer under the Slot It Golf brand.
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`59. Counter-defendant Anthony Procopis has sold its infringing Slot It Golf branded golf swing
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`trainers on https://www.amazon.com/dp/B07FKXL5DX/ and www.slotitgolf.com.
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`60. Counter-defendant Anthony Procopis sued counter-plaintiff Steepware LLC in October 2022.
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`61. In November 2022, Counter-plaintiff Steepware LLC applied for a copyright registration for
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`its Speed Trap 1.0 design artwork.
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`62. The United States Copyright Office recently granted and mailed a copyright registration for
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`the Speed Trap 1.0 design, assigning Copyright Registration No. TX0009209828.
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`63. Counter-plaintiff Steepware LLC is entitled to actual damages originating from counter-
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`defendant Anthony Procopis’s willful misappropriation of Defendant Steepware LLC’s
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`copyrighted design covered by Copyright Registration No. TX0009209828.
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`64. Unless enjoined and restrained, counter-defendant Anthony Procoipis’s conduct threatens to
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`further infringe counter-plaintiff’s copyrighted design.
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`65. Counter-plaintiff Steepware LLC is entitled to a permanent injunction prohibiting Anthony
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`Procopis and others acting in concert with him or on his behalf from manufacturing, displaying,
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`offering for sale, importing, and selling products that copy or are derivative works of Defendant
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`Steepware LLC’s copyrighted Speed Trap 1.0 design.
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 10 of 13
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`ARGUMENT
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`There is no deadline to amend pleadings set forth in the Scheduling Order (ECF No. 25)
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`in the present action. Discovery has been open for approximately three weeks.
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`The theory to be presented by Steepware LLC’s amended pleading is in the same vein as
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`that set forth in its earlier answer – i.e. that it is Anthony Procopis that has copied the intellectual
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`property set forth in Steepware LLC’s Speed Trap 1.0 product. Thus, the case as amended will
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`involve substantially the same factual investigation as originally presented.
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`It is true that the present amendment was slightly delayed, but solely because federal law
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`requires that Counter-claimant Steepware LLC obtain a copyright registration certificate from
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`the U.S. Copyright Office prior to asserting a counterclaim for copyright infringement. 17 U.S.C.
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`§ 411(a). Steeepware LLC promptly sought such a copyright registration certificate after being
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`sued in the instant action.
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`Given that Defendant Steepware LLC could not legally assert its copyright infringement
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`claim until a registration certificate was obtained from the U.S. Copyright Office, given that
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`Steepware promptly sought such a registration certificate, and given that the case is still in its
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`earlier stages, the Court should provide leave for Defendant Steepware LLC to amend its
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`pleading to include the additional copyright infringement counterclaim set forth herein.
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`CONCLUSION
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`For at least the reasons set forth herein, the Court should permit Counter-Plaintiff Steepware
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`LLC to Amend the First Amended Answer to further assert a copyright infringement claim against
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`Counter-Defendant Anthony Procopis.
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 11 of 13
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`Respectfully submitted,
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`Dated: February 7, 2023
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`/s/ Michael P. Eddy
` Michael P. Eddy, Esq.
`Law Office of Michael P. Eddy
`12526 High Bluff Drive, Suite 300
`San Diego, California 92130
`Phone: 858.345.1098
`Fax No.: 800.743.9260
`Email: meddy@patent.org
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`/s/ Daniel S. Bretzius
` Daniel S. Bretzius, Esq.
`Dan B Law PLLC
`75 South Main Street, #272
`Concord, NH 03301
`Phone: 603.731.2507
`Email: dan@danblaw.com
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`Attorneys for Defendants STEEPWARE LLC (d/b/a
`Eyeline Golf) and SAMUEL FROGGATTE
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 12 of 13
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that, on February 7, 2023, I served the foregoing Defendant’s
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`Motion
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`for Leave
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`to Amend First Amended Answer on Plaintiff by e-mail
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`to
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`slotitgolf@gmail.com.
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`/s/ Michael P. Eddy
` Michael P. Eddy, Esq.
`Law Office of Michael P. Eddy
`12526 High Bluff Drive, Suite 300
`San Diego, California 92130
`Phone: 858.345.1098
`Fax No.: 800.743.9260
`Email: meddy@patent.org
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`Dated: February 7, 2023
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Case 1:22-cv-02621-PAB-NRN Document 39 Filed 02/07/23 USDC Colorado Page 13 of 13
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`CERTIFICATE OF DUTY TO CONFER
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`Pursuant to D.C.COLO.LCivR 7.1(a), the undersigned certifies that, on February 6, 2023,
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`I met and conferred with Plaintiff Anthony Procopis by phone on the subject matter of the
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`foregoing Defendant’s Motion for Leave to Amend First Amended Answer.
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`Dated: February 7, 2023
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`/s/ Michael P. Eddy
` Michael P. Eddy, Esq.
`Law Office of Michael P. Eddy
`12526 High Bluff Drive, Suite 300
`San Diego, California 92130
`Phone: 858.345.1098
`Fax No.: 800.743.9260
`Email: meddy@patent.org
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`DEFENDANTS’ MOTION FOR LEAVE TO AMEND FIRST AMENDED ANSWER
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`Civil Action No.: 22-cv-02621-PAB-NRN
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