Case 2:17-cv-04435-MLCF-KWR Document 39 Filed 01/19/18 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF LOUISIANA
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`PAUL BATISTE
`VERSUS
`RYAN LEWIS ET AL
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`CIVIL ACTION
`NO: 17-04435
`SECTION: “F” (4)
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`ORDER
`Before the Court is a Motion for Leave to Amend Complaint (R. Doc. 34) filed by the
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`Plaintiff seeking an order from the Court granting the Plaintiff leave to file a second amended
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`complaint. The motion is opposed. R. Doc. 36. Oral argument on the motion was heard on January
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`3, 2018.
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`I.
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`Background
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`The instant lawsuit was brought by Paul Batiste d/b/a Artang Publishing, LLC (“Plaintiff”),
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`a New Orleans based musician and founding member of the Batiste Brothers Band. Plaintiff alleges
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`that he has authored and asserts ownership over a number of musical compositions that are
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`registered with the United States Copyright Office. Plaintiff alleges that Ryan Lewis and Ben
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`Haggerty (a musical duo known as Macklemore and Ryan Lewis), Macklemore Publishing, Ryan
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`Lewis Publishing, Macklemore, LLC, Andrew Joslyn, Allen Stone, DB Joslyn Music, and
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`Stickystones Publishing (collectively the “Defendants”) have infringed upon and misappropriated
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`the works of the Plaintiff.
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`The original complaint in this case was filed on May 1, 2017. R. Doc. 1. On September 11,
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`2017, the Defendants filed a motion to dismiss for failure to state a claim. R. Doc. 12. The Plaintiff
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`filed his amended complaint into the record on October 2, 2017. R. Doc. 19. The Defendants
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`responded filing a motion to dismiss on November 15, 2017, with respect to the amended
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`Case 2:17-cv-04435-MLCF-KWR Document 39 Filed 01/19/18 Page 2 of 9
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`complaint, which is currently pending before the District Court. R. Doc. 25. The Plaintiff filed the
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`instant motion for leave to file a second amended complaint on December 13, 2017. R. Doc. 34.
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`The Plaintiff seeks leave to file the Second Amended Complaint in order to directly address
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`the assertions that the Defendants have raised. R. Doc. 34-1, p. 1. According to the Plaintiff, the
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`second amended complaint is a response to the Defendants’ motion to dismiss and Plaintiff states
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`that it provides detail regarding the willful copyright infringement of the Defendants. Id. at p. 2.
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`In addition, Plaintiff states that while preparing for the motion to dismiss additional claims against
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`the Defendants were discovered. Id. Finally, Plaintiff argues that leave should be freely given
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`because it will facilitate justice by rendering the Defendants’ motion to dismiss moot and
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`establishes additional claims. Id.
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`The Defendants oppose the motion for leave to file the second amended complaint. R. Doc.
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`36. The Defendants argue that a number of factors require that this Court not grant leave to amend.
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`The Defendants argue that the proposed amendments are futile, the newly discovered claims were
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`apparent and available to the Plaintiff at the onset of litigation, and the motion can only be
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`explained by bad faith and dilatory motive. Id.
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`II.
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`Standard of Review
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`Federal Rule of Civil Procedure 15(a) governs the amendment of pleadings before trial.
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`Rule 15(a) allows a party to amend its pleadings “only with the other party's written consent or the
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`court's leave.” Fed. R. Civ. P. 15(a)(2). Moreover, the Rule urges that the Court “should freely
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`give leave when justice so requires.” Id. In taking this liberal approach, the Rule “reject[s] the
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`approach that pleading is a game of skill in which one misstep by counsel may be decisive to the
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`outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on
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`the merits.” Conley v. Gibson, 355 U.S. 41, 48 (1957).
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`“Rule 15(a) requires a trial court ‘to grant leave to amend freely,’ and the language of this
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`rule ‘evinces a bias in favor of granting leave to amend.’ ” Jones v. Robinson Prop. Grp., 427 F.3d
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`987, 994 (5th Cir. 2005) (internal quotations marks omitted) (quoting Lyn–Lea Travel Corp. v.
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`Am. Airlines, 283 F.3d 282, 286 (5th Cir. 2002)). When denying a motion to amend, the court must
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`have a “substantial reason” considering such factors as “ ‘undue delay, bad faith or dilatory motive
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`on the part of the movant, repeated failures to cure deficiencies by amendments previously
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`allowed, undue prejudice to the opposing party ... and futility of the amendment.’ ” Marucci Sports,
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`LLC v. Nat'l Collegiate Athletic Ass'n, 751 F.3d 368, 378 (5th Cir. 2014) (quoting Jones, 427 F.3d
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`at 994). An amendment is deemed to be futile if it would be dismissed under a Rule 12(b)(6)
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`motion. Id. (citing Briggs v. Miss., 331 F.3d 499, 508 (5th Cir. 2003)).
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`III. Analysis
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`The first factor the court considers when determining whether or not to grant leave to
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`amend pursuant to 15(a) is whether the amendment will cause an undue delay, is in bad faith, or
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`that the movant has some dilatory motive in filing the motion. The Fifth Circuit has stated that “[a]
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`litigant's failure to assert a claim as soon as he could have is properly a factor to be considered in
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`deciding whether to grant leave to amend. Merely because a claim was not presented as promptly
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`as possible, however, does not vest the district court with authority to punish the litigant.” Carson
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`v. Polley, 689 F.2d 562, 584 (5th Cir. 1982). Further, the Fifth Circuit has indicated that “delay
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`alone is an insufficient basis for denial of leave to amend: The delay must be undue, i.e., it must
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`prejudice the nonmoving party or impose unwarranted burdens on the court.” Mayeaux v.
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`Louisiana Health Serv. and Indem. Co., 376 F.3d 420, 427 (5th Cir. 2004).
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`As noted, Plaintiff argues that there is no bad faith or dilatory motive with respect to this
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`motion. Rather, it is a response to the pending motion to dismiss before the District Court. R. Doc.
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`34-1, p. 2. Further, Plaintiff contends that the additional claims were only discovered during the
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`process of preparing to respond the motion to dismiss. Id. Finally, during oral argument and
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`questioning by the Court, Plaintiff’s counsel indicated that after this amendment there should be
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`no new additional claims in this case.
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`Defendants argue that Plaintiff’s actions can only be explained by bad faith and dilatory
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`motive as the motion to amend was filed at the time Plaintiff’s opposition to their motion to dismiss
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`was due. Defendants also argue that the new claims were readily apparent and available at the
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`onset of litigation. R. Doc. 36, pp. 12-14. According to the Defendants, both the first amendment
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`and now this amendment are being filed to delay the case because they were filed days or hours
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`before Plaintiff’s oppositions to the motions to dismiss were due. Id. at p. 14. Further, Defendants
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`cite to an earlier case where Plaintiff and counsel alleged 134 infringements of which at summary
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`judgement only 3 infringement claims survived. Id. at p. 7. Defendants argue that the Plaintiff has
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`no concern for resources and are “trying to achieve by accretion what they cannot do on merit” to
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`drive up the costs of the litigation and extract a nuisance payment. Id.
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`The Court finds that there is no undue delay, bad faith, or dilatory motive with respect to
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`this motion. Defendants argue that the amendments are timed for maximum delay, however,
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`granting the amendment will not create any unwarranted burden on the Court. It will also not
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`prejudice the Defendants. While the second amended complaint would add two new claims and
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`details for the claims in the original complaint, it does not alter the case or impact the ability for
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`the Defendants to adequately defend themselves in this litigation. There is also not a scheduling
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`order in place and therefore there can be no delay with respect to any deadlines. Therefore, the
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`first factor weighs in favor of granting the motion.
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`The second factor the court considers when determining whether or not to grant leave to
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`amend pursuant to 15(a) is whether the party has previously filed repeated amendments to cure
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`deficiencies before filing the instant motion. Courts in the Fifth Circuit have found that where a
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`party has been given multiple opportunities to cure a defect, denial of a 15(a) motion is proper.
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`See, e.g., Price v. Pinnacle Brands, Inc., 138 F.3d 602, 607–08 (5th Cir. 1998) (upholding district
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`court's denial of 15(a) motion where plaintiffs had three prior opportunities to amend their
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`complaint).
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`This is Plaintiff’s first motion for leave to amend its complaint, though the complaint has
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`been previously amended without a motion. It is also the first complaint as it relates to the claims
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`of infringement against the Defendants regarding the works titled “Need to Know” and “Same
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`Love.” Thus, there cannot have been a repeated failure with respect to these new claims. Further,
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`even though this would be the second amended complaint no trial date has been set, and the Court
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`finds that this factor still weighs in favor of granting the motion.
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`The third factor the court considers when determining whether or not to grant leave to
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`amend pursuant to 15(a) is whether the amendment will cause an undue prejudice to the opposing
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`party. The Fifth Circuit has cautioned that amendments should not be permitted where they would
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`“fundamentally alter the nature of the case.” In re American International Refinery, Inc., 676 F.3d
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`455, 467 (5th Cir. 2012) (noting that new allegations of fraud in bankruptcy proceeding would
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`have “fundamentally altered” the nature of a case which had previously been limited to
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`determination of whether one party possessed a conflict of interest warranting disgorgement of
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`monies paid); Mayeaux, 376 F.3d at 427–28 (finding that complaint would be “fundamentally
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`altered” where proposed amendment would destroy jurisdiction and “effectively reconstruc[ed]
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`the case anew.”). Further, the Fifth Circuit has noted that a defendant is prejudiced if an added
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`claim would require that the defendant, “reopen discovery and prepare a defense for a claim
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`different from the [one]…that was before the court.” Smith v. EMC Corp., 393 F.3d 590, 596 (5th
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`Cir. 2004) (quoting Duggins v. Steak’N Shake, Inc., 195 F.3d 828, 834 (6th Cir. 1999)).
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`The Court finds that these amendment would not fundamentally alter the case or prejudice
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`the Defendants. The case involves copyright infringement and therefore additional claims of
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`infringement cannot be said to fundamentally alter the case. In addition, there have been no
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`discovery deadlines set nor discovery conducted. Further, this amendment would not require the
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`Defendants to prepare for new claims substantially different then what was already alleged. As a
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`result, this third factor weighs in favor of granting the amendment.
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`The fourth factor the court considers when determining whether or not to grant leave to file
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`an amendment pursuant to Rule 15(a) is whether the amendment, and or potential new claims are
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`futile. Here, the Plaintiff's allegations in both complaints are similar. The amended complaint
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`would add two new claims of copyright infringement and seeks to provide further factual support
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`for the copyright infringement claims previously identified.
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`The Plaintiff argues that the amended complaint is not futile. Plaintiff argues that the
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`amendment is meant to address the pending motion to dismiss and that leave to amend should be
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`granted because copyright infringement is noticed based pleading.
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`The Defendants argue that in copyright infringement cases, in the absence of direct
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`evidence of copying, a plaintiff must allege either: (1) access to the allegedly copied work and
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`substantial similarity; or (2) that the works are so strikingly similar as to preclude the possibility
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`of independent creation. Id. at p. 10. Defendants argue that the proposed amended complaint
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`contains no allegations that the defendants had access to the Plaintiff’s works or that those works
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`were so widely distributed that defendants would have heard them. Id. The Defendants state that
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`the proposed amended complaint does not add allegations as to how the Defendants had access to
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`the Plaintiff’s works, nor are there allegations regarding the distribution of the Plaintiff’s works to
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`any size audience from which a court could infer access. Id. at pp. 10-11.
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`Defendants further argue that the proposed amended complaint does not allege any striking
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`similarity. They also say that to the extent the second amended complaint alleges similarity, those
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`similarities are unprotectable elements meaning that the works cannot be “strikingly similar.” Id.
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`In addition, Defendants state that while the proposed amended complaint does point to allegations
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`of sampling of Plaintiff’s recordings, there can be no sampling without a showing of access. Id. at
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`pp. 11-12.
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`The Defendants further argue that because there are no factual allegations of access or
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`striking similarity in the complaint, the Plaintiff has failed to state a claim of infringement for any
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`of the works at issue in the case, and therefore the proposed amendment is futile. Id. at p. 12.
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`The Defendants rely on Vallery v. Am. Girl L.L.C., 697 F. App’x 821 (5th Cir. 2017) and
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`Guzman v. Hacienda Recording Studio, Inc., 808 F.3d 1031 (5th Cir. 2015) to support their
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`contentions that the Plaintiff’s second amended complaint is futile. Both cases are easily
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`distinguishable from the instant circumstances.
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`First, the Fifth Circuit’s decision in Guzman was the result of an appeal from a “hotly
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`contested bench trial” in which the appellant challenged the trial judge’s finding of facts in a
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`copyright case. Guzman, 808 F.3d at 1034, 1036. The instant case is in a different procedural
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`posture and therefore the burden that was on the Plaintiff during the bench trial in Guzman is
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`different than the burden faced by the Plaintiff here who is seeking to amend his complaint.
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`Second, Vallery, while more similar to the instant case than Guzman, is still clearly
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`distinguishable from the instant case. In Vallery, the Plaintiff timely appealed the magistrate
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`judge’s denial of the motion to amend as well as the district court’s upholding of that decision and
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`moved to proceed in forma pauperis, which the Fifth Circuit granted noting that the “the district
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`court's dismissal of Vallery's claims based on lack of sufficient factual allegations may have been
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`at odds with Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002).”
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`Vallery, 697 F. App’x at 822-23.
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`The Fifth Circuit did not address whether the lower courts’ decisions were at odds with
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`Swierkiewicz because the facts did not require them to address the issue. Id. at 824. The Fifth
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`Circuit’s affirmation of the lower courts’ decisions and the circumstances giving rise to those
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`decisions are distinguishable from the motion and instant case before this Court. While
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`Defendants’ argue that no evidence of copying has been presented, the burden on the Plaintiff at
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`this stage is not to prove his case. As defense counsel conceded at oral argument, there is no
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`heightened pleading standard for the Plaintiff’s claims here. As such, based on what has been
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`presented to the Court, the second amended complaint is not futile.
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`The Court finds that the motion for leave to amend was not filed with bad faith or dilatory
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`motive, does not cause undue delay, will not cause prejudice, and is not futile. As a result, there is
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`no substantial reason for denying the Plaintiff’s motion, and therefore the motion for leave to file
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`a second amended complaint is granted.
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`IV. Conclusion
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`Accordingly,
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`IT IS ORDERED that the Motion for Leave to Amend Complaint (R. Doc. 34) is
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`GRANTED.
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`IT IS FURTHER ORDERED that the clerk of court shall file into the record the
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`Plaintiff’s second amended complaint.
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`New Orleans, Louisiana, this 18th day of January 2018.
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`KAREN WELLS ROBY
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`CHIEF UNITED STATES MAGISTRATE JUDGE
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