`
`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF NEW YORK
`-------------------------------------------------------x
`
`INTREPIDUS, LLC,
`a member of Seductive Approach LLC, suing
`in the right of SEDUCTIVE APPROACH LLC,
`
`Plaintiff,
`
`-v-
`
`GLENN J. BIVINS and ERIC MONSE,
`
`Defendants.
`
`-------------------------------------------------------x
`
`No. 15-Civ-7721-LTS-HBP
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`MEMORANDUM OPINION AND ORDER
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`In this action arising from the creation and alleged diversion of an Internet-based
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`style and dating advice business, Plaintiff Intrepidus, LLC ("Intrepidus" or "Plaintiff"), suing as a
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`member and on behalf of Seductive Approach LLC, asserts the following causes of action against
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`Defendant Glenn J. Bivins ("Bivins")1 (1) copyright infringement, (2) misappropriation, (3)
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`conversion, (4) tortious interference, (5) declaratory judgment, (6) fraud, and (7) fraud in the
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`inducement, in violation of both the Copyright Act and New York state law. Plaintiff asserts
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`copyright infringement and declaratory judgment claims against Defendant Eric Monse ("Monse").
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`The Court has subject matter jurisdiction of this action pursuant to 28 U.S.C. §§ 1331, 1338, and
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`1367.
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`Plaintiff moves, pursuant to Federal Rule of Civil Procedure 55(b)(2), for a default
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`judgment against Bivins and Monse (“Defendants”). Plaintiff seeks a judgment on the merits
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`1
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`The docket and filings refer to this Defendant as, interchangeably, both Glenn
`Bivins and Glenn Bivens. The Court will hereinafter refer to him as “Bivins.”
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`against Defendants as to each of its causes of action. Defendants have not opposed the instant
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`motion.
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`The Court has reviewed Plaintiff's submissions carefully and, for the following
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`reasons, the motion for default judgment is granted in part and denied in part.
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`BACKGROUND2
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`This case arises from a business transaction between Bivins and Intrepidus for the
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`joint creation of Seductive Approach, LLC (“Seductive Approach”). Seductive Approach “is a
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`company that specializes in personal lifestyle development and enhancement with an emphasis on
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`confidence, fashion and personal development, and a strong emphasis on dating techniques.” (Am.
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`Compl. ¶¶40-41; Seductive Approach Operating Agreement, Plaintiff’s Brief Exhibit (“Pl. Ex.”) E
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`§ 3.1 (“Operating Agreement”).) Bivins, a “PUA (pick up artist)”, presented Brian Engelbert with
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`a business proposal in early 2012, and Engelbert agreed to be the financial backer for the proposal
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`through, Intrepidus, a newly created company. (Am. Compl. ¶¶42-43.) Intrepidus provided
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`$68,000, or 100% of the financial investment, and Bivins’ contribution was to consist of his
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`coaching expertise, ideas, intellectual property, and services. Bivins became the managing
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`member and sole employee of the company and received an 85% ownership stake in Seductive
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`Approach while Intrepidus received a 15% ownership stake. (Am. Compl. ¶¶44-47.)
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`Seductive Approach holds United States copyright registrations for the literary
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`content of the Seductive Approach website, and for the literary works titled “Same Day Lays by
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`2
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`The facts recited herein are drawn from Plaintiff’s Amended Complaint (“Am.
`Compl.”, Docket Entry No. 33), and submissions in connection with this motion
`practice. In light of Defendants’ default, Plaintiff’s well-pleaded factual
`allegations are deemed admitted for purposes of this motion practice. See Fed. R.
`Civ. P. 8(b)(6); Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d
`155, 158 (2d Cir. 1992) (“[A] party’s default is deemed to constitute a concession
`of all well pleaded allegations of liability.”).
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`Glenn Pearce,” “Banter Lines by Glenn Pearce,” and “Six Biggest Fails by Glenn Pearce.” The
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`United States Copyright Office granted the copyright registrations in February and March of 2015.
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`(Am. Compl. ¶¶129-32; Docket Entry No. 33, Seductive Approach Copyright Registrations, Pl. Ex.
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`N (“Copyright Registrations”).)
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`In or about April 2013, Engelbert approached Bivins with numerous concerns about
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`his management of the company. (Am. Compl. ¶69.) Bivins then began creating a rival company,
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`Attractive Approach, and converted Seductive Approach’s property for use by the new company.
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`(Am. Compl. ¶¶77-128.) Bivins converted the Seductive Approach website into the Attractive
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`Approach website, using Seductive Approach funds for the change and costs of the new site. (Am.
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`Compl. ¶¶94-99.) Bivins also used Seductive Approach assets to make payments for services
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`rendered to Attractive Approach, his unrelated Glenn Jason Hair Design Business, his
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`unincorporated business run through www.glennpua.com., and his personal attorney. (Am. Compl.
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`¶¶75, 128.) Bivins admitted that he took the Seductive Approach website and materials because he
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`believed he would ultimately resolve any dispute with Intrepidus in a settlement. (Settlement
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`Negotiation Emails, Pl. Ex. X. (“Settlement Emails”).) Defendant Monse aided in the theft of
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`Seductive Approach’s intellectual property by advertising promotional material, which was
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`comprised of Seductive Approach’s intellectual property, on his website, while knowing that
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`Bivins was stealing from Seductive Approach and Intrepidus. (Am. Compl. ¶¶113-14.)
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`The Attractive Approach website mirrored the Seductive Approach website and
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`business plan in its offerings and Bivins promoted his new coaching service on websites run by
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`Defendant Monse. (Am. Compl. ¶¶ 86-96, 123.) Bivins earned revenue from his coaching
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`services that were promoted on the Attractive Approach website and from the sale of Seductive
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`Approach products on Attractive Approach’s website, as well as other websites. (Am. Compl.
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`¶¶117-28.)
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`Plaintiff alleges that Bivins knowingly and intentionally made false representations
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`during the initial negotiations for the creation of Seductive Approach. Specifically, Intrepidus
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`alleges that Bivins falsely claimed "he would transfer the intellectual property he had previously
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`created for the PUA industry to Seductive Approach, would implement the copyright registrations
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`for such works listing Seductive Approach as the rightful owner, and that Bivins' previously
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`created intellectual property, as well as the intellectual property he created while working for ...
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`Seductive Approach would be the sole and exclusive property of Seductive Approach." (Am.
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`Compl. ¶164.) Plaintiff also alleges that, without these inducements, “there would be no reason for
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`Engelbert to invest his monies through Intrepidus.” (Am. Compl. ¶¶ 36-38.) Plaintiff further
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`alleges that Bivins intended that Plaintiff would rely on these false statements when entering into
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`the Operating Agreement and that Plaintiff did rely on such statements, resulting in harm and
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`damages to Plaintiff. (Am. Compl. ¶¶164-69, 171-77.)
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`Plaintiff commenced this action by the filing of a complaint on Seductive
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`Approach’s behalf against Defendants Phillip Salsbury Schloss (“Schloss”), Bivins, The Salsbury
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`Fortress, LLC (“Salsbury Fortress”), and Monse. On December 12, 2015, Plaintiff filed an
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`Amended Complaint. (See generally Docket Entry Nos. 1 and 33.) Defendants filed a motion to
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`dismiss on December 29, 2015. (Docket Entry No. 40.) On March 9, 2016, the Court granted
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`defense counsel’s motion to withdraw, and ordered Defendants to each file a notice of appearance
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`by new counsel within 60 days. (Docket Entry No. 56.) On May 31, 2016, the Court endorsed
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`Plaintiff’s notice of voluntary dismissal with prejudice as against Salsbury Fortress and Schloss in
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`light of the parties’ settlement agreement. (Docket Entry No. 60.) On that same day, the Court
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`renewed the 60-day period by which Defendants Bivins and Monse were required to file notices of
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`appearance by new counsel or pro se, directing that "[f]ailure to file such notice of appearance by
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`August 7, 2016, will result in the striking as abandoned of the pending motion to dismiss the
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`complaint and an entry of default against Defendants who have not appeared, and authorization of
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`default judgment motion practice." (Docket Entry No. 59.) Bivins and Monse have neither filed
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`notices of appearance, nor made any submissions, since their former attorney withdrew.
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`On August 16, 2016, the Court terminated Defendants' motion to dismiss as
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`abandoned, directed the Clerk of Court to issue a certificate of default, and authorized Plaintiff to
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`make a motion for default judgment. (Docket Entry No. 65.) The Clerk of Court issued a
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`certificate of default on August 17, 2016 (Docket Entry No. 66), and on August 30, 2016, Plaintiff
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`filed this motion for default judgment. (Docket Entry No. 69.)
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`Default Judgment Standard
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`DISCUSSION
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`In determining whether to grant a motion for default judgment, courts within this
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`district first consider three factors: "(1) whether the defendant's default was willful; (2) whether
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`defendant has a meritorious defense to plaintiff's claims; and (3) the level of prejudice the non-
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`defaulting party would suffer as a result of the denial of the motion for default judgment."
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`Indymac Bank, F.S.B. v. National Settlement Agency, Inc., 2007 WL 4468652, at *1 (S.D.N.Y.
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`Dec. 20, 2007) (internal citation omitted); see also Guggenheim Capital, LLC v. Birnbaum, 722
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`F.3d 444, 455 (2d Cir. 2013) (applying these factors in review of lower court grant of a default
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`judgment). The Court finds that all three of the foregoing factors weigh in Intrepidus' favor.
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`Defendants' failure to make an appearance after their previous counsel withdrew
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`and their failure to respond to Intrepidus' Motion for Default Judgment are indicative of willful
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`conduct. See Indymac Bank, F.S.B., 2007 WL 4468652, at *1 (holding that non-appearance and
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`failure to respond to a Complaint or Motion for Default Judgment indicates willful conduct.).
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`With respect to the second factor, because Defendants have failed to make a new appearance and
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`their motion to dismiss was abandoned and stricken, there is no information before the Court
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`indicating that Defendants have any meritorious defense to Intrepidus' claims. Finally, the Court
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`finds that Intrepidus will be prejudiced if it cannot seek relief for its claims in light of
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`Defendants' default in this case, as the case has been pending since 2015.
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`Once the court finds that these factors favor the plaintiff, it must determine whether
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`the plaintiff has pleaded facts supported by evidence sufficient to establish the defendant's liability
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`with respect to each cause of action. See Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61, 65 (2d
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`Cir. 1981). "[A] party's default is deemed to constitute a concession of all well pleaded allegations
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`of liability" except those relating to damages. Greyhound Exhibitgroup, 973 F.2d at 158. Thus,
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`"[w]ithout a response from [the defendant, a] court must first determine whether the allegations in
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`Plaintiff's complaint are sufficiently pleaded to establish [the defendant's] liability." Lenard v.
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`Design Studio, 889 F. Supp. 2d 518, 528 (S.D.N.Y. 2012).
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`Intrepidus' First Cause of Action: Copyright Infringement
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`Intrepidus, suing on behalf of Seductive Approach, asserts a claim for copyright
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`infringement of Seductive Approach's website and products. Plaintiff alleges that Bivins stole the
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`Seductive Approach website, "Same Day Lays by Glenn Pearce," "Banter Lines by Glenn Pearce,"
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`and "Six Biggest Fails by Glenn Pearce," and used them for the benefit of his new company,
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`Attractive Approach. (Am. Compl. ¶¶ 129-32.) Plaintiff further alleges that Monse aided in the
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`theft of Seductive Approach’s intellectual property by advertising promotional material, which was
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`comprised of Seductive Approach’s intellectual property, on his website, while knowing that
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`Bivins was stealing from Seductive Approach and Intrepidus. (Am. Compl. ¶¶113-14.) Intrepidus
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`provides copyright registrations as evidence in support of its claim. (Am. Compl. ¶¶129-32;
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`Docket Entry No. 33, Copyright Registrations.) Plaintiff seeks statutory damages and attorneys'
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`fees under 17 U.S.C. § 504(c) of the Copyright Act and a permanent injunction under 17 U.S.C. §
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`502(a) of the Copyright Act in connection with these four alleged infringements.
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`"[I]n order to obtain statutory damages and attorney's fees, a plaintiff must have
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`registered its copyright prior to the alleged infringement." Solid Oak Sketches, LLC v. 2K Games,
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`Inc., 2016 WL 4126543 at *2 (S.D.N.Y. Aug. 16, 2016); see 17 U.S.C.S. § 412 (LexisNexis 2011);
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`Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996, 1012 (2d Cir. 1995). Intrepidus alleges that the
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`copyright infringements began "in late April 2014 or early May 2014," when Bivins launched the
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`Attractive Approach website, which contained much of the substance of Seductive Approach’s
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`website, including "Same Day Lays by Glenn Pearce," "Banter Lines by Glenn Pearce," and "Six
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`Biggest Fails by Glenn Pearce.” (Am. Compl. ¶¶ 15-18.) However, Seductive Approach's
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`copyright registrations for the Seductive Approach website, "Same Day Lays by Glenn Pearce,"
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`"Banter Lines by Glenn Pearce," and "Six Biggest Fails by Glenn Pearce" did not become effective
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`until late February and March of 2015. (Am. Compl. ¶¶129-32; Docket Entry No. 33, Copyright
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`Registrations.) Because Seductive Approach did not “register[] its copyright prior to the alleged
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`infringement,” Plaintiff cannot recover statutory damages and attorneys' fees for copyright
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`infringement. See Solid Oak Sketches, LLC, 2016 WL 4126543 at *2.
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`Plaintiff seeks a permanent injunction pursuant to 17 U.S.C. § 502(a) of the
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`Copyright Act. Section 412 of Title 17 of the United States Code restricts a plaintiff’s ability to
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`recover statutory damages and attorneys’ fees pursuant to sections 17 U.S.C. §§ 504 and 505, but it
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`does not prohibit a plaintiff from seeking injunctive relief for copyright infringement under section
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`502, even if the plaintiff did not register the work within the requisite period of time to recover
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`statutory damages and attorneys’ fees. See 17 U.S.C. § 412. The Court will, therefore, examine
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`the sufficiency of Plaintiff’s infringement case on the merits.
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`A demonstration of copyright infringement requires proof of two elements: (1)
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`ownership of a valid copyright, and (2) copying of constituent elements of the work that are
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`original. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). A certificate of
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`copyright registration is prima facie evidence that a copyright is valid and of the facts stated in the
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`certificate. Fonar Corp. v. Domenick, 105 F.3d 99, 104 (2d Cir. 1997); 17 U.S.C. § 410(c). Here,
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`Plaintiff has demonstrated that it has registered the copyrights and thus satisfies the first element of
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`its copyright infringement claim. (Am. Compl. ¶¶129-32; Docket Entry No. 33, Copyright
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`Registrations.) Plaintiff also pleads and proffers uncontroverted evidence, comprised of Bivins’
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`testimony, screenshots of Monse’s website, Approach Anxiety, which includes a reference to
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`“Same Day Lays,” and screenshots of the Attractive Approach website, of copying by Defendants
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`of the original copyrighted works. (Am. Compl. ¶¶133-42; Pl. Exs. C, M, and Y.) Therefore,
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`Plaintiff is entitled to prevail on its claim for copyright infringement.
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`To obtain an injunction, a plaintiff must show liability and the threat of continuing
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`violation. Basic Books, Inc. v. Kinko’s Graphics Corp., 758 F.Supp. 1522, 1542 (S.D.N.Y. 1991).
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`Plaintiff has proven Bivins’ and Monse’s liability, as discussed above, and alleges continuing
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`infringement by the Defendants. Defendants’ continued distribution and/or display of the
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`Seductive Approach e-books and website content is a continuing infringement sufficient to justify
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`an injunction. (Am. Compl. ¶¶135, 138, 142.) The Court therefore grants Plaintiff’s request for a
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`permanent injunction barring Bivins and Monse from infringement of the Seductive Approach
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`Website, "Same Day Lays by Glenn Pearce," "Banter Lines by Glenn Pearce," and "Six Biggest
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`Fails by Glenn Pearce.”
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`Accordingly, Plaintiff’s motion for a default judgment is granted with respect to the
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`first cause of action insofar as it seeks permanent injunctive relief.
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`Intrepidus' Second Cause of Action: Misappropriation
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`Intrepidus asserts a claim against Bivins for misappropriation. "An unfair
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`competition claim involving misappropriation usually concerns the taking and use of the plaintiff's
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`property to compete against the plaintiff’s own use of the same property." Roy Export Co. v.
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`Columbia Broadcasting System, Inc., 672 F.2d 1095, 1105 (2d Cir. 1982) (citation omitted).
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`Under the doctrine of corporate opportunity in New York, “corporate fiduciaries and employees
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`cannot, without consent, divert and exploit for their own benefit any opportunity that should be
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`deemed an asset of the corporation.” Alexander & Alexander of N.Y. v. Fritzen, 147 A.D.2d 241,
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`246 (1st Dep’t 1989). “New York common law allows a plaintiff to sue for unfair competition
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`where a property right or a commercial advantage has been misappropriated.” ITC Ltd. v.
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`Punchgini, Inc., 482 F.3d 135, 165 (2d Cir. 2007) (internal citation omitted). “It has been broadly
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`described as encompassing any form of commercial immorality, or simply as endeavoring to reap
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`where one has not sown; it is taking the skill, expenditures and labors of a competitor, and
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`misappropriati[ng] for the commercial advantage of one person ... a benefit or property right
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`belonging to another.” Roy Export Co., 672 F.2d at 1105 (internal citations and quotation marks
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`omitted). “The essence of an unfair competition claim under New York law is that the defendant
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`misappropriated the labors and expenditures of another.” Saratoga Vichy Spring Co., Inc. v.
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`Lehman, 625 F.2d 1037, 1044 (2d Cir. 1980). An unfair competition claim must also involve some
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`degree of bad faith. Id.
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`Plaintiff has alleged and demonstrated through supplementary evidentiary proffers
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`that Bivins exploited his position as managing and majority member, as well as employee, of
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`Seductive Approach by misappropriating the company’s capital, confidential information, coaching
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`services, trade secrets, logo, copyrighted material, and other property. (Am. Compl. ¶¶ 86-96.)
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`Plaintiff further alleges and demonstrates that Bivins did so for the benefit of his new company,
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`Attractive Approach, a competitor of Seductive Approach. (Id., inter alia.) Bivins took Seductive
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`Approach's property in order to compete directly against it by creating a new company.
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`Furthermore, Plaintiff’s uncontroverted allegations and evidence indicate that Bivins did so in bad
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`faith.
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`Plaintiff has pleaded sufficient facts, supported by evidence tendered in support of
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`its motion for default judgment, to establish Bivins’ liability with respect to Plaintiff’s claim for
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`misappropriation. See Au Bon Pain Corp., 653 F.2d at 65. The Court therefore grants Plaintiff’s
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`motion for default judgment with respect to the second cause of action.
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`Intrepidus' Third Cause of Action: Conversion
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`Plaintiff also asserts a cause of action against Bivins for conversion. “Conversion
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`occurs when a defendant exercises unauthorized dominion over personal property in interference
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`with a plaintiff’s legal title or superior right of possession.” Rolls-Royce Motor Cars, Inc. v.
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`Schudroff, 929 F.Supp. 117, 124 (S.D.N.Y. 1996) (citing Bankers Trust Co. v. Cerrato, Sweeney,
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`Cohn, Stahl & Vaccaro, 187 A.D.2d 384, 385 (1st Dep’t 1992)). The “tort of conversion does not
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`require defendant’s knowledge that he is acting wrongfully, but merely an intent to exercise
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`dominion or control over property in a manner inconsistent with the rights of another.” Fashions
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`Outlet of America, Inc. v. Maharaj, 1991 WL 143421, at *2 (S.D.N.Y. July 22, 1991) (internal
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`quotations and citations omitted). “To sustain an action in conversion, the plaintiff must
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`demonstrate legal ownership or an immediate superior right of possession to a specific identifiable
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`thing.” Id. (internal quotations and citations omitted).
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`Plaintiff alleges that Bivins took Seductive Approach’s property, including website
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`content, designs, logos, and other intellectual property, when he transferred the contents of the
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`Seductive Approach website to the Attractive Approach website. (See, inter alia, Am. Compl.
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`¶¶77, 88, 107, 147, Pl. Exs. C at 287, J, and K.) Plaintiff also alleges that Bivins used Seductive
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`Approach’s financial assets to pay for services rendered to Attractive Approach, his unrelated
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`Glenn Jason Hair Design Business, and his unincorporated business run through
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`www.glennpua.com. (Am. Compl. ¶128.) This misconduct included Bivins’ use of $11,800 from
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`Seductive Approach’s bank account to pay for Attractive Approach’s website and use of additional
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`funds from the Seductive Approach bank account to pay his personal attorney. (Am. Compl. ¶75.)
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`Plaintiff proffers deposition testimony from Bivins in which he admits that he converted the
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`property. (Pl. Ex. C at p. 297, lines 18-25 and p. 288, lines 1-22.)
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`Plaintiff’s uncontroverted allegations and evidence demonstrate that Seductive
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`Approach had legal title or superior right of possession over the Seductive Approach website, bank
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`account and financial assets, design, logos, and other intellectual property. Bivins’ use of these
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`assets for his personal benefit and the benefit of entities other than Seductive Approach is an
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`exercise of control “in a manner inconsistent with the rights of” Seductive Approach. See Rolls-
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`Royce, 929 F.Supp. at 124; Fashions Outlet of America, Inc., 1991 WL 143421 at *2.
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`Plaintiff has pleaded sufficient facts, supported by evidence, to establish Bivins’
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`liability for conversion. The Court therefore grants Plaintiff’s motion for default judgment with
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`respect to the third cause of action.
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`Intrepidus' Fourth Cause of Action: Tortious Interference
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`Intrepidus alleges that Bivins tortiously interfered with Seductive Approach's
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`business relationships. The Second Circuit has set forth factors a plaintiff must establish for a
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`claim of tortious interference with a prospective economic advantage under New York law: “(1)
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`that [he] had a business relationship with a third party; (2) the defendant knew of that relationship
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`and intentionally interfered with it; (3) the defendant acted solely out of malice, or used dishonest,
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`unfair, or improper means; and (4) the defendant's interference caused injury to the relationship."
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`Friedman v. Coldwater Creek, Inc., 321 Fed. App’x 58 (2d Cir. 2009) (internal citations omitted).
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`Plaintiff’s complaint and evidentiary proffers are insufficient to establish the first
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`element of this cause of action. Intrepidus has not identified any relationships between Seductive
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`Approach and any third party. Rather, Plaintiff refers generically to “relationships with third
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`parties who intended to purchase ‘Same Day Lays’ and other intellectual property of Seductive
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`Approach, as well as use Seductive Approach’s services.” (See Am. Compl. ¶151.) Plaintiff
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`neither names a specific third party nor offers evidence of any existing business relationships with
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`Seductive Approach. (Am. Compl. ¶¶152-55.)
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`Intrepidus' motion for default judgment with respect to its fourth cause of action is
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`therefore denied.
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`Intrepidus' Fifth Cause of Action: Declaratory Judgment
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`Plaintiff seeks a declaratory judgment against Defendants Bivins and Monse with
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`respect to the copyrighted materials in dispute. Plaintiff seeks a judgment declaring that (1)
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`Plaintiff is the rightful owner of the U.S. copyright registration nos. TX008029811,
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`TX0008036360, TX0008036365, and TX0008036351; (2) Defendants' actions are unlawful and,
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`specifically, that Defendants infringed and continue to infringe the Plaintiff's copyrights in
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`violation of the Copyright Act; and (3) in accordance with such judgment, directing the United
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`States Copyright Office to strike each one of the four copyright applications filed by Bivins on or
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`about August 27, 2014, related to these registrations.
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`The Declaratory Judgment Act confers on federal courts “unique and substantial
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`discretion in deciding whether to declare the rights of litigants.” Wilton v. Seven Falls Co., 515
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`U.S. 277, 286 (1995). The “very purpose of the declaratory judgment procedure is to prevent the
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`accrual of ... avoidable damages.” American Machine & Metals v. DeBothezat Impeller Co., 166
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`F.2d 535, 536 (2d Cir. 1948). For declaratory judgment, a controversy must be "of a justiciable
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`nature, thus excluding an advisory decree upon a hypothetical state of facts." Ashwander v.
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`Tennessee Valley Authority, 297 U.S. 288, 325 (1936); Basic Books, Inc., 758 F.Supp. at 1543.
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`The Second Circuit has held that “‘[t]he two principal criteria guiding the policy in favor of
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`rendering declaratory judgments are (1) when the judgment will serve a useful purpose in
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`clarifying and settling the legal relations in issue, and (2) when it will terminate and afford relief
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`from the uncertainty, insecurity, and controversy giving rise to the proceeding.’ ... [I]f either of
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`these objectives can be achieved the action should be entertained and the failure to do so error.”
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`Broadview Chemical Corp. v. Loctite Corp., 417 F.2d 998, 1001 (2d Cir. 1969), cert. denied, 397
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`U.S. 1064 (1970) (quoting Borchard, Declaratory Judgments 294, 299 (2d ed. 1941)).
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`The Court grants Plaintiff’s request in part and denies it in part. For the reasons
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`explained above with respect to the first cause of action, the Court grants Plaintiff's request for a
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`judgment declaring that (1) Plaintiff is the rightful owner of the U.S. copyright registration nos.
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`TX008029811, TX0008036360, TX0008036365, and TX0008036351; and (2) Defendants' actions
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`are unlawful and, specifically, that Defendants infringed and continue to infringe the Plaintiff's
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`copyrights in violation of the Copyright Act.
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`Plaintiff’s conclusory request that the Court go beyond declaring Seductive
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`Approach’s rights in the intellectual property and issue an affirmative direction to the Copyright
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`Office to strike applications that were allegedly filed by Bivins in 2014 is, however, denied. This
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`denial of the request is without prejudice to future pursuit of such relief in an appropriate forum
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`and upon an appropriate record.
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`Intrepidus' Sixth and Seventh Causes of Action: Fraud and Fraud in the Inducement
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`Intrepidus asserts claims against Bivins for fraud and fraud in the inducement. To
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`prevail on a fraud claim under New York law, “a plaintiff must show that (1) the defendant made a
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`material false representation, (2) the defendant intended to defraud the plaintiff thereby, (3) the
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`plaintiff reasonably relied upon the representation, and (4) the plaintiff suffered damage as a result
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`of such reliance.” Bridgestone/Firestone, Inc. v. Recovery Credit Services, Inc., 98 F.3d 13, 19 (2d
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`Cir. 1996). New York law specifically recognizes a cause of action for fraud in the inducement
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`when the misrepresentation is collateral to the contract it induced. See Wall v. CSX Transp., Inc.,
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`471 F.3d 410 (2d Cir. 2006) and WIT Holding Corp. v. Klein, 282 A.D.2d 527, 528 (2d Dep’t
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`2001).
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`Intrepidus lacks standing to assert the fraud claim pleaded in the Amended
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`Complaint, which relates to the original decision to create Seductive Approach. Nor does the
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`Amended Complaint even proffer facts supporting an inference that Bivins was lying from the
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`outset of the negotiations that resulted in the creation of Seductive Approach. Plaintiff Intrepidus
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`brought this action on behalf of Seductive Approach, not on its own behalf. As pleaded, the fraud
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`claim alleges that Engelbert or Intrepidus, and not Seductive Approach, was misled by Bivins
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`during the negotiations that resulted in the creation of Seductive Approach. Seductive Approach,
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`the entity that was created as a result of those negotiations, cannot assert fraud claims on behalf of
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`Engelbert or Intrepidus.
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`Furthermore, Plaintiff’s complaint and evidentiary proffers are insufficient to
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`establish the first element of a fraud or fraud in the inducement claim. Plaintiff does not proffer
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`facts supporting the bald assertion that Bivins was lying during those negotiations and, therefore,
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`does not show that Bivins made a material false representation.
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`For the foregoing reasons, Plaintiff’s motion for default judgment with respect to
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`the sixth and seventh causes of action is denied.
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`CONCLUSION
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`Plaintiff’s request for injunctive relief on its copyright infringement cause of action
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`is granted. Bivins and Monse, and all persons and entities acting in concert with them who are
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`given notice of this order, are hereby permanently enjoined from using the works registered under
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`copyright registration numbers TX008029811, TX0008036360, TX0008036365, and
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`TX0008036351 in any way.
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`The Court hereby declares that Seductive Approach LLC is the sole rightful owner
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`of the works registered under U.S. copyright registrations TX008029811, TX0008036360,
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`TX0008036365, and TX0008036351, and that Defendants’ actions described in the Amended
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`Complaint constitute the unlawful infringement of Seductive Approach’s rights in those works.
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`Plaintiff’s motion for judgment in its favor on its conversion and misappropriation
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`causes of action is granted and the case is referred to Magistrate Judge Pitman for an inquest as to
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`damages in connection with those causes of action. Plaintiff’s counsel is directed to contact Judge
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`Pitman’s chambers to schedule proceedings.
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`Plaintiff’s motion for judgment by default is denied, and the Amended Complaint is
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`dismissed, in all other respects.
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`This Opinion and Order resolves Docket Entry No. 69.
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`SO ORDERED.
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`Dated: New York, New York
`April 28, 2017
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`__ /s/ Laura Taylor Swain
`LAURA TAYLOR SWAIN
`United States District Judge
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