Case 1:05-cv-00459-WMS-HBS Document 41 Filed 05/16/08 Page 1 of 14
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF NEW YORK
`_____________________________________________
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`David William Moran,
` Plaintiffs,
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`v.
`
`Hon. Hugh B. Scott
`05-CV-459S
`
`Decision
`&
`Order
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`deSignet International, et al.,
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` Defendant.
`
`_____________________________________________
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`Before the Court is the plaintiff’s motion to compel discovery; joinder of parties and the
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`amendment of the complaint. (Docket No. 32).
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`Background
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`The plaintiff, David William Moran (“Moran”) commenced this action alleging breach of
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`contract and copyright infringement claims. Moran asserts that he created a design as “a family
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`crest” to be used on his wedding rings for he and his wife, as well as on rings for their children,
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`broaches for their mothers, money clips for their fathers and on the wedding cake. (Docket No.
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`32 at ¶ 5). Moran hired deSignet International (“deSignet”) to create the jewelry. According to
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` The plaintiff alleges that deSignet is an assumed name used for business purposes by
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`RARU.COM INC. (“RARU”). The plaintiff further alleges that RARU is wholly owned by Reg
`Medicott Schopp (“Schopp”). (Docket No. 1 at ¶ 15).
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`Moran, Reg Medicott Schopp (“Schopp”), asked to purchase the design from Moran, but Moran
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`refused to sell. The plaintiff asserts that Schopp promised not to use the design for anyone else.
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`(Docket No. 1 at ¶ 10). Moran claims that he subsequently discovered that deSignet’s website
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`offered rings for sale under the names “Waterford Knot,” “Kenmare Knot,” and “Kenmare with
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`Cross and Knot Bands” that are derivatives of Moran’s design. (Docket No. 1 at ¶¶ 41-46).
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`The defendants acknowledge that they had offered to waive the “set-up” charge if the
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`plaintiff would allow them to offer Moran’s design for sale and that Moran refused the offer.
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`(Docket No. 35 at ¶ 4). According to defendants, Schopp advised Moran that there was limited
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`copyright protection of many Celtic designs in light of the extensive public domain of such
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`designs. Id. The defendants also assert that the designs identified by Moran as derivative of his
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`design, are instead based upon different designs that are in the public domain. For example, the
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`Kenmare designs is “a copy of a knot long in the public domain originally from the Book of
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`Kells, an acient illustrated manuscript thought to be produced by Celtic monks in approximately
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`AD 800.”(sic) (Docket No. 35 at ¶ 7). Further, the defendants contend that Moran’s design is
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`not original, but instead was a derivative of a design contained in a 1991 book by Aidan Meehan.
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`(Docket No. 35 at ¶¶ 8-11). The defendants assert that the plaintiff was aware of the Meehan
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`design and that the plaintiff “deliberately and fraudulently misrepresented the origin of the
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`substance of his design.” (Docket No. 35 at ¶ 12).
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`Motion to Compel
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`The plaintiff seeks to compel discovery of documents and responses to interrogatories.
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`Initially, the plaintiff asserts that the defendants failed to provide the initial disclosure required
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`under Rule 26 of the Federal Rules of Civil Procedure. The plaintiff points out that significant
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`delay has transpired in this case, mostly attributable to the fact that the defendants have changed
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`counsel at least twice in this matter. Notwithstanding representations from the current and
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`former counsel for the defendants, the plaintiff asserts that he still has not been provided with the
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`Rule 26 disclosure. The defendant contends that Rule 26 disclosures have been made. The
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`plaintiff’s arguments regarding the Rule 26 disclosure focus on the defendants’ failure to
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`produce a copy of any insurance policy which might cover a copyright infringement claim
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`against the defendants. (Docket No. 32 at ¶¶16-17). The defendants do not dispute the fact that
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`information relating to any insurance policies was not produced with the initial Rule 26
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`materials. If not already produced, the defendants shall produce a copy of all such relevant
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`insurance policies to the plaintiff within 15 days of the date of this order.
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`The plaintiff also asserts that the defendants’ responses to the First Request for the
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`Production of Documents to Schopp and RARU are also insufficient. Moran claims that the
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`defendants produced three “folders” of documents but did not provide a cover letter or other
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`explanation of what was being produced and to which discovery requests the production was to
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`be attributed. (Docket No. 32 at ¶¶ 23-25). The plaintiff suggests that RARU’s production of
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`sales data information was insufficient in that only three untitled pages of data was provided.
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`Further, Moran claims that it received information relating only to the sales of “Kenmare” rings,
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`but not the “Waterford” design or other designs containing “symbolic heart elements.” (Docket
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`No. 32 at ¶¶ 30-31). Finally, the plaintiff asserts that the defendants have failed to produce the
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`jewelry molds requested in discovery. (Docket No. 32 at ¶¶ 33-40).
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`It appears that just prior to oral argument on April 2, 2008, the defendants produced
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`additional documents responsive to the plaintiff’s demands. The plaintiff did not have an
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`opportunity to review those documents prior to argument. The Court directed that the plaintiff
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`review the documents and advise the Court of what discovery issues remained. In a post-
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`argument filing, the plaintiff contends that the defendants have still failed to organize or label
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`any production of documents. (Docket No. 39 at ¶ 6). Further, the plaintiff states that the
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`defendants have agreed to provide documents “responsive to 6 of plaintiff’s 24 document
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`requests” which remain outstanding, but which to date have not been received. (Docket No. 39 at
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`¶¶ 5). However, the papers do not identify which requests remain outstanding. The scope of
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`unresolved discovery issues is not clear from the record in this case. The motion to compel the
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`production of documents is denied without prejudice. Further, correspondence between the
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`parties dated May 9, 2008 reflects that almost all discovery issues have been resolved. If
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`necessary, the plaintiff may submit a renewed motion to compel which identifies specific
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`document requests that remain outstanding.
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`Similarly, the plaintiff moves to compel the production of several documents identified at
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`the depositions of Schopp, Kim Schopp and Robert Kopf. (Docket No. (Docket No. 32 at ¶ 57).
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`In his post-argument memorandum, the plaintiff asserts that the following remain outstanding: 7
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`of 13 of the documents from Schopp; 7 of 10 from the deposition of Kim Schopp; and 1 of 4
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`from the deposition of Kopf. (Docket No. 39 at ¶¶ 4). Once again, the plaintiff’s papers to not
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`specify which documents remain outstanding.
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`The plaintiff also seeks to compel further responses to interrogatories 3, 7, 8, 9, 10, 11,
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`12, 16, 17, 18 and 19. (Docket No. 39 at ¶ 10). Some of the interrogatories posed appear to call
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`for subjective interpretation. For example, in Interrogatory No. 7, the plaintiff asks the
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`defendants to “describe the similarities and differences” of various Celtic designs. Such
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`questions involving aesthetic interpretation may be better explored in depositions. The Court
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`has reviewed each of the challenged interrogatories:
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`Interrogatory No. 3 – The plaintiff contends that the defendants response is not complete
`because the defendants failed to identify who made the rubber molds, who was
`responsible for collection and payment, and who communicated with the customer. If the
`defendants have records from which this information can be obtained, the information
`should be provided to the plaintiff.
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`Interrogatory No. 7 – As discussed above, this question calls for a subjective response.
`The defendants’ response is sufficient.
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`Interrogatory No. 8 – The plaintiff asks the defendants to identify “all facts and
`documents that support [defendants] belief, as stated in ¶58 of [the] answer, that [the
`plaintiff’s] copyright has not been infringed.” The plaintiff argues that the defendants
`response to this interrogatory is incomplete because it fails to identify information
`referred to in ¶¶ 62, 65 and 66 of the Answer. Once again, it would seem that such
`clarification would be more appropriately explored in a deposition. In any event, the
`interrogatory does not ask the plaintiff about the information contained in any ¶ other
`than ¶58. The defendants’ response is sufficient.
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`Interrogatory No. 9 – In their Answer, the defendants asserted that the plaintiff’s
`copyright was invalid in that a necessary author of the work was not recited (¶ 59), and
`that plaintiff’s design was “taken from defendants’ prior artistic work ... and from well
`known public sources, including a 1997 book by Sheila Sturroch entitled Celtic
`Knotwork Designs” (¶ 62). The plaintiff asks the defendants to identify the authors of
`not recited (as referred to in (¶ 59), and the prior art referenced in ¶ 62). The defendants
`responded that “RARU believes that Mr. Moran copied his design from existing sources
`including the Strurroch and Meehan tests previously noted and produced.” If not already
`done, the defendants are directed to supplement this response by providing more specific
`references by author, publication and page number as to any design claimed to be the
`prior artistic work from which the plaintiff allegedly copied.
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`Interrogatory 10 – The plaintiff seeks “all facts and documents” supporting the
`defendants’ contention that Moran was aware that defendants “advertised and sold
`custom Celtic knot work rings containing interwoven arrangements containing symbolic
`heart elements.” The defendants responded that the “belief is based on statements made
`by Plaintiffs.” The defendants are directed to identify the substance of the alleged
`statement by the plaintiff, and the circumstances (date, location, who was present) when
`the statement was made.
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`Interrogatory 11 – The plaintiff asks the defendants to identify all designs which are the
`basis of defendants’ contention that Moran’s design is not original. The defendants
`objected to the interrogatory as being overly broad, but cited to the Sturroch and Meehan
`texts, and further referred the plaintiff to the “button selection at Joann Fabrics.” The
`interrogatory is not overly broad, but asks the defendants to identify the basis of their
`claim that Moran’s design is not original. It may be that the information provided by the
`defendants is the only information upon which the defendants’ assertion is based. If the
`defendants’ contention that Moran’s design is not original is based upon other designs,
`the defendants are directed to supplement their response to identify any such additional
`designs.
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`Interrogatory 12 – The plaintiff asks the defendants to identify “the source of each
`element and symbol used in sculpting Goods for Plaintiff, referred to in [¶ 62 of
`defendants’ Answer], including those elements and symbols, if any taken from Plaintiff’s
`design.” The defendants objected to the interrogatory as “unclear” but referred to the
`design submitted by Moran and the Triquerra knot and the heart. The plaintiff asserts that
`this response is insufficient. Again, it may be that the only designs consulted by the
`defendants in producing the jewelry for Moran were the designs submitted by Moran and
`the Triquerra knot and heart. If the defendants utilized other designs in creating the
`jewelry for Moran, the defendants are directed to supplement their response to identify
`any such additional designs.
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`Interrogatory No. 16 – The plaintiff asks the defendants to identify the names, dates and
`subject matter of communications had with an attorney concerning the rights to the
`designs underlying this action, or the right to make derivatives of such designs. The
`defendants stated a general objection to the interrogatory to the extent it seeks privileged
`information, but then provided information regarding its communications with Harold
`Bulan, Esq. The plaintiff argues that the defendants may not assert the attorney-client
`privilege with respect to the opinion of counsel regarding rights, ownership or non-
`infringement of the designs in question. Again, the defendants response may be
`complete. If there is additional responsive information regarding advice from an attorney
`as to the rights to the designs underlying this action (or any derivatives), the defendants
`shall supplement their interrogatory response.
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`Interrogatory No. 17 – The plaintiff asks the defendants if a search of the copyright
`records was performed concerning the designs in this action. The defendants responded
`that “RARU does not know at this time if any search was done on its behalf. RARU did
`not perform a search.” In responding to this interrogatory, the defendants are required to
`determine whether they searched the copyright records, or caused a search of the
`copyright records on their behalf. The defendants are directed to supplement this
`response with information as to whether they caused a search of the copyright records
`within the relevant time frame relating to the designs underlying this action.
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`Interrogatory No. 18 – The plaintiff asks the defendants to state “the cost of fulfilling
`Plaintiff’s order, including any allocations of fixed costs.” The defendants responded
`with details of its pricing of each of the pieces of jewelry; the cost of specific services;
`and the cost of materials per pennyweight. In allocating costs, the defendants stated that
`“in most cases” materials are a of the cost, labor is a of the cost, and operating costs are
`the remaining a of the cost. The plaintiff objects to the response stating that he asked
`for the allocation “in this case” not “in most cases.” It is not certain that the defendants
`can extract the administrative costs of processing the plaintiff’s order with more
`specificity. If such information can be extracted, it should be provided. Otherwise, this
`response is sufficient.
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`Interrogatory No. 19 – The plaintiff asks the defendants to identify “all facts and
`documents concerning income and expenses from jewelry [defendants] sold which
`include designs which include interwoven arrangements containing symbolic heart
`elements separated into before March 3, 2000 and thereafter.” The defendants objected
`to the interrogatory as overly broad and burdensome. The Court agrees. The plaintiffs
`have not established the relevance of information other than that relating to the sale of
`jewelry containing the specific design to which the plaintiff claims copyright protection.
`The defendants need not respond to this interrogatory.
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`The plaintiff also seeks sanctions and costs with respect to making the motion to compel.
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`It appears that the defendants substantially complied in good faith with the plaintiff’s discovery
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`demands. Some of the unresolved issues may fairly be attributable to requests which were
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`arguably over broad or subject to a variety of interpretation. It appears that other information
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`was withheld pending the parties negotiation of a confidentiality agreement (which was
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`submitted for Court approval by cover letter dated April 30, 2008). The Court declines to award
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`sanctions or costs at this time.
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`Motions to Amend Pleadings
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`Both parties seek to amend the pleadings in this case. Pursuant to Rule 15(a) of the
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`Federal Rules of Civil Procedure:
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`A party may amend the party’s pleading once as a matter of course
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`at any time before a responsive pleading is served, or if the
`pleading is one to which no responsive pleading is permitted and
`the action has not been placed on the trial calender, the party may
`so amend it at any time within 20 days after it is served. Otherwise
`a party may amend the party’s pleading only by leave of court or
`by written consent of the adverse party; and leave shall be freely
`given when justice so requires.
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`Although it is within the Court’s discretion to grant or deny the amendment of a pleading
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`under the second sentence of Rule 15(a), the Supreme Court in Foman v. Davis, 371 U.S. 178
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`(1962) stated:
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`Rule 15(a) declares that leave to amend ‘shall be freely given when
`justice so requires;’ this mandate is to be heeded. If the underlying
`facts or circumstances relied upon by a plaintiff may be a proper
`subject of relief, he ought to be afforded an opportunity to test his
`claim on the merits. In the absence of any apparent or declared
`reason--such as undue delay, bad faith or dilatory motive on the
`part of the movant, repeated failure to cure deficiencies by
`amendments previously allowed, undue prejudice to the opposing
`party by virtue of allowance of the amendment, futility of
`amendment, etc.--the leave sought should, as the rules require, be
`‘freely given.”
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`Foman, 371 U.S. at 178. See also Oliver Schools, Inc. v. Foley., 930 F2d. 248 (2dCir. 1991).
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`Although leave to amend need not be granted where a proposed amendment would be “futile,”
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`the Second Circuit has held that the standard against which the proposed amendment is measured
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`is not high. In Ricciuti v. N.Y.C. Transit Authority, 941 F.2d. 119 (2d Cir. 1991), the Court
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`stated:
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`When the plaintiff has submitted a proposed amended complaint,
`the district judge may review that pleading for adequacy and need
`not allow its filing if it does not state a claim upon which relief can
`be granted. The adequacy of the proposed amended complaint,
`however, is to be judged by the same standards as those governing
`the adequacy of a filed pleading. Rule 8(a) requires "a short and
`plain statement of the claim showing that the pleader is entitled to
`relief," ... Thus, the court should not dismiss the complaint for
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`failure to state a claim "unless it appears beyond doubt that the
`plaintiff can prove no set of facts in support of his claim which
`would entitle him to relief," ... and it should not deny leave to file
`a proposed amended complaint unless that same rigorous standard
`is met.
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`Ricciuti, 941 F.2d. at 123 (citations omitted).
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`“To establish a claim of copyright infringement, a plaintiff must establish (1) ownership
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`of a valid copyright and (2) unauthorized copying or a violation of one of the other exclusive
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`rights afforded copyright owners pursuant to the Copyright Act.” Twentieth Century Fox Film
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`Corp. v. Cablevision Systems Corp., 478 F.Supp.2d 607, 617 (S.D.N.Y.,2007) citing Byrne v.
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`British Broad. Corp., 132 F.Supp.2d 229, 232 (S.D.N.Y.2001); Twin Peaks Prods. v. Publ'ns
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`Int'l. Ltd., 996 F.2d 1366, 1372 (2d Cir.1993)); Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499
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`U.S. 340, 361 (1991). The plaintiff seeks to amend the complaint to add several individuals as
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`direct and indirect infringers. The law frames such liability as contributory and vicarious
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`infringement. To establish contributory (direct) infringement, the plaintiff must show that the
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`proposed individual defendants “authorized the [infringing] use.” Softel, Inc. v. Dragon Medical
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`and Scientific Communications, Inc., 118 F.3d 955, 971 ( 2d Cir. 1997) citing Sony Corp. v.
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`Universal City Studios, Inc., 464 U.S. 417, 437 (1984); see also J & J Sports Productions, Inc. v.
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`Rodrigues, 2007 WL 1726462, *8 (E.D.N.Y.,2007)(same); Kingvision Pay-Per-View, Ltd. v.
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`Castillo Restaurant Corp., 2007 WL 841804, *7 (E.D.N.Y.,2007) . To establish vicarious
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`(indirect) liability, the plaintiff must allege that the proposed defendants had a “right and ability
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`to supervise [that] coalesce[d] with an obvious and direct financial interest in the exploitation of
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`copyrighted materials.” Softel, 118 F.3d. at 971 quoting Shapiro, Bernstein & Co. v. H.L. Green
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`Co., 316 F.2d 304, 307 (2d Cir.1963)(“[E]ven in the absence of actual knowledge that the
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`copyright monopoly is being impaired ... the purposes of copyright law may be best effectuated
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`by the imposition of liability upon the beneficiary of the exploitation”). See also Yash Raj Films
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`(USA), Inc. v. Bobby Music Co. & Sporting Goods, Inc., 2006 WL 2853874, *4
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`(E.D.N.Y.,2006)(As the sole owner of Bobby Music, Akhtar had both a direct financial interest
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`in the store's activities, and had the right and ability to supervise the contractor's activities, such
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`that Akhtar could be held vicariously liable.); Capitol Records, Inc. v. Wings Digital Corp., 218
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`F.Supp.2d 280, 285 (E.D.N.Y.2002) (finding that defendant could be held liable for vicarious
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`liability where complaint alleged that he “was the sole shareholder who managed and financially
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`benefitted from the production and sale of the acts of copyright infringements”); Peer Int'l Corp.
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`v. Luna Records, Inc., 887 F.Supp. 560, 565 (S.D.N.Y.1995) (“Individuals who have the right
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`and ability to supervise infringing copyright and a direct financial interest in such activities are
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`not shielded from liability even though they have no actual knowledge of the infringement.”);
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`Shady Records, Inc. v. Source Enterprises, Inc., 2005 WL 14920, *23 (S.D.N.Y.,2005)
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`(Directors and officers may not be held liable based solely on a theory of control of the corporate
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`entity, but “[a]ny individual, including a corporate officer, who has the ability to supervise
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`infringing activity and has a financial interest in that activity, or who personally participates in
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`that activity, is personally liable for that infringement.”).
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`Moran seeks to name Kimberly Schopp, Robert Kopf (“Kopf”), and Roman Jurga
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`(“Jurga”) as both contributory and vicarious infringers. (Docket No. 32 at ¶¶60-77). Further, the
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`plaintiff proposes to add Elizabeth Cali (“Cali”) and Michael Schopp as vicarious infringers.
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`(Docket No. 32 at ¶¶78-83). With respect to Kimberly Schopp, Moran alleges that she
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`participated in the infringing conduct by photographing and posting infringing items for sale
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`online and by performing certain bookkeeping functions relating to the sale of allegedly
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`infringing products. The plaintiff also alleges that Kimberly Schopp is vicariously liable as an
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`officer and shareholder of RARU, who allegedly has control over the activities of the
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`corporation and directly benefits from the sales. (Docket No. 32 at ¶ 60, 64). Kopf is also
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`alleged to be an officer and shareholder of RARU. Further, the plaintiff asserts that Kopf
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`actually made the allegedly infringing design (Docket No. 32 at ¶¶ 67-68). According to the
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`plaintiff Jurga is also an officer and shareholder in RARU who was responsible for molding and
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`casting the allegedly infringing jewelry. (Docket No. 32 at ¶¶ 72-77). With respect to both Cali
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`and Michael Schopp, Moran alleges that they are shareholders, and possibly directors, of RARU
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`and that they have “control over the activities of [RARU] and directly benefit from the sales and
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`profits of the corporation.” (Docket No. 32 at ¶¶ 78-79; 81-82). The defendants assert that “none
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`of the proposed new defendants is in any kind of a supervisory position” and that none “had any
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`knowledge of any alleged infringement.” (Docket No. 35 at ¶ 20). At this stage, in making a
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`determination as to the sufficiency of the proposed Amended Complaint, the Court is constrained
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`to presume the facts alleged by the plaintiff as true. As noted above, knowledge of the infringing
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`activity is not necessarily required for vicarious liability. Shady Records, Inc. v. Source
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`Enterprises, Inc., 2005 WL 14920, *23 (S.D.N.Y.,2005). Whether the newly proposed
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`individual defendants possessed the ability “to authorize” the allegedly infringing activity or had
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`sufficient supervisory control over the activities of the corporation is certainly open to question.
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`The Court cannot say, based upon the record, that “it appears beyond doubt that the plaintiff can
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`prove no set of facts in support of his claim which would entitle him to relief.” Ricciuti, 941
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`F.2d. at 123.
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`The motion to amend the complaint is granted. Inasmuch as the newly proposed
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`defendants have already been subjected to deposition, it does not appear that the addition of
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`these individuals as parties will necessitate a significant extension of discovery in this case. The
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`motion to amend the answer to add an affirmative defense that the copyright was granted upon
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`fraudulent information is similarly granted. An Amended Complaint shall be filed by the
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`plaintiff within 15 days of the date of this order. The defendants shall file an answer, or
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`otherwise move, as to the Amended Complaint within 15 days of the filing of the Amended
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`Complaint.
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`Remaining Issues
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`At or shortly after a mediation session, the plaintiff produced a document referred to by
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`the parties as “Saa 5." The defendants attached a copy of the document to their response to the
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`instant motion to compel. (Docket No. 35 at Exhibits D and E). The plaintiff contends that the
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`document was produced in connection with a mediation session and may not be used for any
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`other purpose by the defendants. The defendants contend that the document was identified at a
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`mediation session and should have been produced in response to a prior discovery request; that
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`the plaintiff acknowledged that the defendants were entitled to the document in discovery; that
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`no reservation or limitation of the use of the document was discussed or agreed upon; and that
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`the plaintiff produced a copy of the document the day after the end of the mediation session.
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` The plaintiff contends that the motion should be denied as “redundant” inasmuch as
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`the affirmative defenses already pled would cover the alleged intentional conduct which is the
`basis of the newly proposed defense. (Docket No. 37 at ¶ 28). Inasmuch as the plaintiff is to file
`an Amended Complaint, the defendants must file a new answer. Moreover, the plaintiff has
`failed to articulate any prejudice to the proposed amendment.
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`(Docket No. 40 at ¶¶ 18-19). Neither party presented authority in support of their respective
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`positions. During oral argument, the plaintiff acknowledged that the defendants would have
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`been entitled to obtain the document in a discovery request, but that no discovery request calling
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`for the production of this document was articulated by the defendants. Thus, the parties dispute
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`whether the defendants made a prior discovery request for which Saa 5 would have been
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`responsive. Under the circumstances in this case, inasmuch as the plaintiff acknowledges that
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`the document was discoverable, and it does not appear that the parties discussed or agreed to any
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`limited or restricted use of the document prior to its production, the defendants may use the
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`document for any purpose in connection with this litigation.
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`The plaintiff had sought an order declaring that it is fair use for plaintiff’s attorneys to
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`use any software provided by defendant which enables plaintiff to review digital material
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`produced by defendants. It is not apparent as to whether this remains at issue. In any event,
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`pursuant to 17 U.S.C. §107, the Court finds that use of the software for the necessary and
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`limited purpose of accessing information disclosed during the discovery phase by a party in
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`litigation falls within the fair use exception. “The fair use of a copyrighted work ... for purposes
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`such as criticism, comment, news reporting, teaching ..., scholarship, or research, is not an
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`infringement of copyright.” 17 U.S.C. § 107. Fair use exists as an affirmative defense to
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`copyright infringement. Louis Vuitton Malletier, S.A. v. Haute Diggity Dog, LLC, 464
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`F.Supp.2d 495 (E.D.Va.2006); Tavory v. NTP, Inc., 495 F.Supp.2d 531, 538 (E.D.Va.,2007). In
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`making this determination, the Court examines: (1) the purpose and character of the use; (2) the
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`nature of the copyrighted work; (3) the amount and substantiality of the portion used in relation
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`to the copyrighted work as a whole; and (4) the effect of the use upon the potential market for or
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`value of the copyrighted work. 17 U.S.C. § 107 . Upon due consideration of these factors, the
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`Court finds that the litigation-related need for use of the software – to access information
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`produced by the defendants is quite limited and would have no effect upon the potential market
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`for or value of the copyrighted work.
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`The plaintiff also seeks to strike certain language from the defendants’ response as
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`constituting an “ad hominem attack.” The plaintiff points to the defendants’ allegations that the
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`plaintiff “has not been truthful” and “has deliberately and fraudulently misrepresented the origin
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`of” his design. (Docket No. 37 at ¶ 45). This language serves as the basis of the defendants’
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`proposed affirmative defense. The motion to strike is denied.
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`So Ordered.
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`Buffalo, New York
`May 16, 2008
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` / s / Hugh B. Scott
`United States Magistrate Judge
`Western District of New York
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