Case 1:17-cv-00031-YK Document 103 Filed 03/28/19 Page 1 of 12
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
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`DESIGN BASICS, LLC,
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`Plaintiff
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`v.
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`MTF ASSOCIATES, INC., et al.,
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`Defendants
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`No. 1:17-cv-00031
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`(Judge Kane)
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`MEMORANDUM
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`Before the Court are Defendants Haubert Construction, LLC d/b/a Fogarty Homes,
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`Fogarty Homes, Inc., and Randall E. Haubert’s (the “Haubert Defendants”) motion for leave to
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`file an amended answer and affirmative defenses (Doc. No. 37), and Defendants MTF
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`Associates, Inc., Fogarty Homes, Inc., JF Development Corporation, John Fogarty Custom Built
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`Homes, Inc. d/b/a Distinctive Homes by Fogarty, and John T. Fogarty’s (the “Fogarty
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`Defendants”) motion for leave to file an amended answer and affirmative defenses (Doc. No.
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`41).1 For the reasons provided herein, the Court will deny both motions.
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`I. BACKGROUND
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`The instant dispute arises out of the alleged copyright infringement of residential home
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`designs and architectural plans. (Doc. No. 37 ¶ 1.) Plaintiff Design Basics, LLC (“Plaintiff”), is
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`a Nebraska limited liability company engaged in the business of creating, publishing, and
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`licensing architectural plans and designs. (Doc. No. 1 ¶ 3.) Plaintiff owns a large number of
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`copyright-protected architectural works. (Id. ¶ 12). Defendants are entities that Plaintiff alleges
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`infringed a portion of Plaintiff’s copyright-protected architectural works. (Id. ¶ 23).
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`1 The Court refers to the Haubert Defendants and the Fogarty Defendants as “Defendants.”
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`On January 5, 2017, Plaintiff filed a complaint in this Court, asserting four counts of non-
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`willful copyright infringement under 17 U.S.C. §106, four counts of willful copyright
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`infringement under 17 U.S.C. §106, and one count alleging a violation of the Digital Millennium
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`Copyright Act under 17 U.S.C. §1202. (Doc. No. 1 ¶¶ 36-58). On February 17, 2017, the
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`Fogarty Defendants filed an answer and asserted a crossclaim against the Haubert Defendants
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`seeking contribution and indemnification. (Doc. No. 10 ¶ 92.) The Haubert Defendants filed an
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`answer as to Plaintiff’s complaint (Doc. No. 1), and the Fogarty Defendants’ crossclaim (Doc.
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`No. 10), on February 17, 2017 (Doc. No. 12). In their answer, the Haubert Defendants also
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`asserted a crossclaim against the Fogarty Defendants seeking contribution and indemnification.
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`(Doc. No. 12 ¶ 28.) On March 3, 2017, the Fogarty Defendants filed an answer to the crossclaim
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`asserted by the Haubert Defendants. (Doc. No. 14.)
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`On April 18, 2018, during the course of the parties’ discovery, several of Plaintiff’s
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`principals were deposed. (Doc. No. 37 ¶ 5.) During these depositions, information related to the
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`Plaintiff’s enforcement of its copyrights through litigation was elicited. (Id. ¶ 8.) Additionally,
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`Paul Foresman, Plaintiff’s vice president and director of business development (“Mr.
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`Foresman”), testified that Plaintiff had previously paid a finder’s fee to its employees if it
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`secured a monetary settlement from copyright infringement the employee had identified. (Id. ¶
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`9.) Carl Cuozzo, one of Plaintiff’s senior designers, indicated that Plaintiff ceased paying its
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`employees finder’s fees in September of 2017. (Id. ¶ 16.) This change in policy occurred shortly
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`after the issuance of an opinion by the Seventh Circuit in a case to which Plaintiff was a party.2
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`(Id.) The parties completed fact discovery on September 4, 2018. (Doc. No. 47.)
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`2 Design Basics LLC v. Lexington Homes, Inc., 858 F.3d 1093 (7th Cir. 2017).
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`On October 11, 2018, the Haubert Defendants filed a motion for leave to file an amended
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`answer and affirmative defenses (Doc. No. 37), accompanied by a motion to compel discovery of
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`Plaintiff’s accounting of gross settlement revenues from copyright infringement claims filed
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`from 2009 to the present (Doc. No. 39). On October 18, 2018, the Fogarty Defendants filed a
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`motion for leave to file an amended answer and affirmative defenses. (Doc. No. 41.) Both
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`Defendants seek to amend their answers to assert the affirmative defense of copyright misuse.
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`(Doc. Nos. 37, 41.) Plaintiff filed an unopposed motion to stay the briefing schedule on October
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`19, 2018 (Doc. No. 42), as to the Haubert Defendants’ motion to compel (Doc. No. 39). Plaintiff
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`filed a brief in opposition (Doc. No. 47), to the Haubert Defendants’ motion (Doc. No. 37), on
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`October 25, 2018. Plaintiff filed a second brief in opposition (Doc. No. 50), to the Fogarty
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`Defendants’ motion (Doc. No. 41), on November 9, 2018.3 Defendants did not file reply briefs,
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`and the period in which to do so has elapsed. As a result, Defendants’ motions are ripe for
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`disposition.
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`II. LEGAL STANDARD
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`Under Rule 15(a) of the Federal Rules of Civil Procedure, “a party may amend the
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`party’s pleadings only by leave of court or by written consent of the adverse party; and leave
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`shall be freely given when justice so requires.” Fed. R. Civ. P. 15(a). While Rule 15 liberally
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`permits leave to amend be “freely given,” a district court may deny leave to amend if the
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`movant’s delay in seeking amendment is undue, motivated by bad faith, prejudicial to the
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`opposing party, or is futile. See Foman v. Davis, 371 U.S. 178, 182 (1962). It is within the
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`3 Additionally, the Haubert Defendants filed a motion for summary judgment (Doc. No. 54), and
`the Fogarty Defendants and Plaintiff each filed motions for partial summary judgment on
`November 13, 2018. (Doc. Nos. 57, 60). The Court issued an Order extending the time to file
`responsive briefs to February 1, 2019 to allow for the disposition of Defendants’ instant motions.
`(Doc. No. 65.)
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`sound discretion of the trial court to determine whether a party shall be granted leave to amend
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`pleadings. See id.
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`Futility of amendment occurs when the amended pleading does not state a claim upon
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`which relief can be granted. See In re Burlington Coat Factory Litig., 114 F.3d 1410, 1434 (3d
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`Cir. 1997). If the proposed amendment “is frivolous or advances a claim or defense that is
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`legally insufficient on its face, the court may deny leave to amend.” Harrison Beverage Co. v.
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`Dribeck Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (internal citations omitted). The Third
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`Circuit has held that “the trial court may properly deny leave when the amendment would not
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`withstand a motion to dismiss” under Federal Rule of Civil Procedure 12(b)(6). Massarsky v.
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`General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). Assertions that leave to amend an
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`answer would be futile are also reviewed under the “motion to dismiss” standard. See, e.g.,
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`Miller v. Beneficial Mgmt. Corp., 844 F. Supp. 990, 1001 (D.N.J. 1993). Under this standard,
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`the Court must accept as true the allegations in the proposed amended answer and construe those
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`allegations in the light most favorable to the moving party. Id.
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`In the Third Circuit, “prejudice to the non-moving party is the touchstone for the denial
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`of an amendment.” Lorenz v. CSX Corp., 1 F.3d 1406, 1413-14 (3d Cir. 1993) (quoting Cornell
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`& Co., Inc. v. Occupational Safety & Health Review Comm’n., 573 F.2d 820, 823 (3d Cir.
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`1978)). When considering prejudice, the hardship on the non-movant is the Court’s focus. See
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`Adams v. Gould Inc., 739 F.2d 858, 868 (3d Cir. 1984). The non-moving party must do more
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`than claim prejudice, however, “it must show that it was unfairly disadvantaged or deprived of
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`the opportunity to present facts or evidence which it would have offered had the . . . amendments
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`been timely.” Bechtel v. Robinson, 886 F.2d 644, 652 (3d Cir. 1989) (quoting Heyl & Patterson
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`Int’l, Inc. v. F.D. Rich Housing, 663 F.2d 419, 426 (3d Cir. 1981)). In deciding whether the non-
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`moving party is prejudiced by the delay in amendment, the Court considers whether allowing an
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`amendment would result in “additional discovery, cost, and preparation to defend against new
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`facts or new theories.” Cureton v. Nat’l Collegiate Athletic Ass’n, 252 F.3d 267, 273 (3d Cir.
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`2001). The Third Circuit has also held that prejudice exists when there is “undue difficulty in
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`prosecuting a lawsuit as a result of a change of tactics or theories on the part of the other party.”
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`Deakyne v. Comm’rs of Lewes, 416 F.2d 290, 300 (3d Cir. 1969).
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`In addition to prejudice, a movant’s undue delay is also a ground for denying leave to
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`amend, although the Third Circuit has held that the mere passage of time does not require that a
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`motion to amend a pleading be denied. See Adams, 739 F.2d at 868. At some point, however,
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`the movant’s delay “will become ‘undue,’ placing an unwarranted burden on the [C]ourt, or will
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`become ‘prejudicial,’ placing an unfair burden on the opposing party.” Adams, 739 F.2d at 868.
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`Delay may become undue when a movant has had previous opportunities to amend. See Lorenz
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`v. CSX Corp., 1 F.3d 1406, 1414 (3d Cir. 1993). In weighing whether the movant has unduly
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`delayed in filing a motion to amend a pleading, therefore, the Court’s focus is on the movant’s
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`motives for not amending. See Adams, 739 F.2d at 868.
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`III. DISCUSSION
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`A.
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`Arguments of the Parties
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`In their motions (Doc. Nos. 37, 41), Defendants both seek leave to file an amended
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`answer for the identical purpose of asserting the affirmative defense of copyright misuse. In
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`support of their motions, Defendants advance nearly the same arguments in favor of amending.
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`(Doc. Nos. 38, 48.) Specifically, Defendants address the four grounds upon which district courts
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`may deny leave to amend: (1) undue delay; (2) prejudice to Plaintiff; (3) bad faith or dilatory
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`motive; and (4) futility of amendment. See Foman, 317 U.S. at 182.
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`The Haubert Defendants state that the period between the depositions of Plaintiff’s
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`principals and the filing of their motion (Doc. No. 38), does not constitute undue delay because it
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`“presents no burden upon this [Court] to allow [the Haubert Defendants] time to file an amended
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`pleading” (id. at 9).4 The Fogarty Defendants similarly state that they have not “unduly delayed
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`in filing this [m]otion because amendment would not create a burden upon Plaintiff or this
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`Court.” (Doc. No. 48 at 9.) The Fogarty Defendants further argue that they did not discover that
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`Plaintiff filed numerous copyright infringement suits and paid its employees finder’s fees until
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`the Seventh Circuit’s decision in Design Basics LLC, 858 F.3d 1093 (7th Cir. 2017), and the
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`depositions of Plaintiff’s principals on April 8, 2018. (Id.) The Haubert Defendants make the
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`same argument, stating that, while the Haubert Defendants had the information obtained in
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`Design Basics LLC, on the date the opinion was issued, that information could not be confirmed
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`until Plaintiff’s principals were deposed. (Doc. No. 38 at 8.)
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`Defendants next argue that Plaintiff will not be prejudiced if the Court grants leave to
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`amend Defendants’ respective answers. (Doc. No. 38 at 9.) The Haubert Defendants state that
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`Plaintiff has been aware of the Seventh Circuit’s holding in Design Basics LLC for over one year
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`and that, therefore, Plaintiff would anticipate that the opinion “would be [used] against it” in
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`other suits to which it is a party. (Doc. No. 38 at 9.) The Haubert Defendants further aver that
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`Plaintiff “will not be forced to expend additional resources outside of the discovery that has
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`already been conducted because Plaintiff seemingly maintains all of the records it would need to
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`refute copyright misuse claims, including the direct testimony of its principals on that issue.”
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`4 The Haubert Defendants allege incorrectly that four months elapsed between April 18, 2018,
`the date of Plaintiff’s principals’ depositions, and the filing of their motion (Doc. No. 37), on
`October 11, 2018. (Doc. No. 38 at 9). The Court observes that this period is five months and 23
`days.
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`(Id. at 9-10.) The Fogarty Defendants advance a similar argument, stating that Plaintiff will not
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`face undue prejudice because “it will not be forced to expend additional resources in addition to
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`the discovery that has already occurred,” and that “Plaintiff is presumably already in possession
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`of all the records it would need to contest a copyright misuse claim.” (Doc. No. 48 at 9.)
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`Defendants both argue that their motions are not futile because the Third Circuit has held
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`that copyright misuse is an acceptable affirmative defense and they can successfully state a claim
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`for copyright misuse. (Doc. No. 38 at 9, Doc. No. 48 at 9.) Specifically, the Haubert
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`Defendants’ allege that, in establishing a scheme that incentivized Plaintiff’s employees to find
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`violations of its copyrights and then pursued litigation in defense of those copyrights, Plaintiff is
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`“attempting to use its copyrights as a sword rather than a shield,” which “is directly at odds with
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`the intellectual property clause in the Constitution and the Copyright Act itself.” (Doc. No. 38 at
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`9.) Similarly, the Fogarty Defendants allege that, in filing lawsuits “with the intent of exacting
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`settlement payments from the alleged infringers,” Plaintiff is using its copyright “to restrain,
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`rather than promote, creative expression.” (Doc. No. 48 at 7.)
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`In opposing Defendants’ motions, Plaintiff filed two briefs that advance largely identical
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`arguments.5 (Doc. Nos. 47, 50.) First, Plaintiff argues that Defendants have unduly delayed in
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`filing of their motions in that more than five months have elapsed between the depositions of
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`Plaintiff’s principals on April 18, 2018 and the filing of Defendants’ motions in October of 2018.
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`(Doc. No. 47 at 6, 7.) Plaintiff argues that the information obtained during the depositions is not
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`“newly discovered information.” (Id. at 7.) Plaintiff also states that Defendants do not provide
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`5 Plaintiff indicates in its later-filed brief (Doc. No. 50), that because the Fogarty Defendants’
`brief “essentially mirrors” the Haubert Defendants’ brief, as well as the fact that the “posture of
`the case has not significantly changed,” Plaintiff’s brief “essentially mirrors” Plaintiff’s earlier-
`filed brief (Doc. No. 47). The Court observes that the briefs are substantively identical.
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`an explanation as to why they did not seek leave to amend at an earlier stage in the parties’
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`litigation. (Id.; Doc. No. 50 at 6, 7.) Plaintiff avers that Defendants have had multiple
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`opportunities to amend their answer to include the affirmative defense of copyright misuse, yet
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`they waited until after the close of discovery and initial expert disclosures, and just prior to the
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`filing of dispositive motions to seek leave to amend. (Doc. No. 47 at 8, 9.)
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`Plaintiff next argues that it would be prejudiced if the Court were to grant Defendants’
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`motions. (Doc. No. 47 at 9.) Specifically, Plaintiff avers that it will have no opportunity to seek
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`discovery in defense of Defendants’ allegations of copyright misuse since fact discovery closed
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`on September 4, 2018. (Id.) Plaintiff states that had Defendants moved for leave to amend soon
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`after the depositions of Plaintiff’s principals, Plaintiff would have had an opportunity to conduct
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`discovery related to the alleged copyright misuse. (Id.) Specifically, Plaintiff avers that had
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`Defendants raised this affirmative defense earlier, Plaintiff “would have had the chance to serve
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`written interrogatories, admissions, and/or requests for production; ask related and pointed
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`questions during depositions; and/or addressed these issues within expert reports.” (Doc. No. 50
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`at 7, 8.) Plaintiff argues that it has lost the opportunity to address the allegations of copyright
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`misuse because Defendants waited until after the close of fact discovery to file the instant
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`motions. (Doc. No. 47 at 9.)
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`Lastly, Plaintiff argues that amendment of Defendants’ answers to include a copyright
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`misuse affirmative defense would be futile because Defendants have failed to state a claim for
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`copyright misuse. (Id. at 11.) Plaintiff further argues that the Haubert Defendants “have made
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`no claim that [Plaintiff] is asserting rights beyond those granted in it copyright registrations” and
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`that the Haubert Defendants “do not challenge the validity and/or scope of [Plaintiff’s] copyright
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`registrations whatsoever.” (Id. at 12.) Plaintiff makes the identical argument with regard to the
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`Fogarty Defendants. (Doc. No. 50 at 11.)
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`B. Whether Defendants Should be Granted Leave to File Amended Answers
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`The Court will deny Defendants’ motions for leave to amend as Defendants fail to allege
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`facts necessary to support a reasonable inference of copyright misuse. Copyright misuse is based
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`upon the equitable principle that courts “may appropriately withhold their aid where the plaintiff
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`is using the right asserted contrary to the public interest.” FMC Corp. v. Control Sols., Inc., 369
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`F. Supp. 2d (E.D. Pa. 2005) (quoting Morton Salt v. G. S. Suppiger Co., 314 U.S. 488, 492
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`(1942)). “Misuse is not cause to invalidate the copyright or patent, but instead ‘precludes its
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`enforcement during the period of misuse.’” Video Pipeline, Inc., v. Buena Vista Home Ent’mt,
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`Inc., 342 F.3d 191, 204 (3d Cir. 2003) (citing Practice Mgmt. Info. Corp. v. Am. Med. Assoc.,
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`121 F.3d 516, 520 n. 9 (9th Cir. 1997)).
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`The doctrine of copyright misuse is “principally aimed at avoiding anticompetitive
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`conduct that contravenes the goal of copyright law – ‘to stimulate artistic creativity for the
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`general public good.’” Malibu Media, LLC v. Doe, No. 4:15-cv-2281, 2018 WL 5841866, at
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`*10 (M.D. Pa. Nov. 8, 2018) (citing Video Pipeline, 342 F.3d at 204). Misuse exists where a
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`copyright holder has engaged in some form of anti-competitive behavior. See Practice Mgmt.,
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`121 F.2d at 521 (finding copyright misuse where license to use copyrighted good prohibited
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`licensee from using competing goods); see also Lasercomb, Am., Inc. v. Reynolds, 911 F.2d 970,
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`979) (finding that a copyright holder misused its copyright by including in licensing agreements
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`a provision that neither the licensee company nor its officers or its employees could develop
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`competing goods for the ninety-nine year term of the agreement).
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`As noted above, the Haubert Defendants’ allege that, in establishing a scheme that
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`incentivized Plaintiff’s employees to find violations of its copyrights and then pursued litigation
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`in defense of those copyrights, Plaintiff is “attempting to use its copyrights as a sword rather than
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`a shield,” which “is directly at odds with the intellectual property clause in the Constitution and
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`the Copyright Act itself.” (Doc. No. 38 at 9.) Similarly, the Fogarty Defendants allege that, in
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`filing lawsuits “with the intent of exacting settlement payments from the alleged infringers,”
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`Plaintiff is using its copyright “to restrain, rather than promote, creative expression.” (Doc. No.
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`48 at 7.) These allegations do not, however, support a reasonable inference of copyright misuse.
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`While Defendants’ allegations suggest that Plaintiff engaged in an aggressive litigation
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`strategy in defense of its copyrights, Defendants do not allege facts that suggest that this strategy
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`constituted anti-competitive behavior. Plaintiff’s copyright claim is not “likely to interfere with
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`creative expression to such a degree that [it] affect[s] in any significant way the policy interest in
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`increasing the public store of creative activity.” Video Pipeline, 342 F.3d at 206. Further, the
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`copyright misuse defense fails where a plaintiff merely seeks to enforce its copyright, and
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`nothing more. See Arista Records, Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 428-29 (D.N.J.
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`2005) (“the fact of enforcing a valid copyright, without more, simply cannot constitute copyright
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`misuse.”). Defendants have only alleged that Plaintiff is seeking to enforce its own copyrights
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`and nothing more. Accordingly, the Court concludes that Defendants’ motions for leave to
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`amend do not state a claim for copyright misuse and thus amendment would be futile.
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`Having found that leave to amend would be futile, the Court will not take up Plaintiff’s
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`arguments regarding prejudice and undue delay. The Court next addresses the Haubert
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`Defendants’ motion to compel.
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`C.
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`The Haubert Defendants’ Motion to Compel
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`On October 11, 2018, in addition to their motion for leave to file an amended answer and
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`affirmative defenses (Doc. No. 37), the Haubert Defendants filed a motion to compel discovery
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`of Plaintiff’s accounting of gross settlement revenues from copyright infringement claims filed
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`from 2009 to the present (Doc. No. 39). In their motion to compel, the Haubert Defendants state
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`that “a complete accounting of Plaintiff’s gross settlement revenues from 2009 to present is both
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`relevant and germane to the affirmative defense of copyright misuse.” (Id. at 5.)
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`Motions to compel discovery must be filed within the time allowed for discovery itself.
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`See Finizie v. Shineski, 351 Fed. Appx. 668, 672 (3d Cir. 2009) (affirming district court’s denial
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`of motion to compel that was filed at least two weeks “after discovery had closed.”); Rossetto v.
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`Pabst Brewing Co., 217 F.3d 529, 542 (7th Cir. 2000) (finding no merit to contention that district
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`court’s denial of discovery motion was error where the motion was filed two months after the
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`date set by the court for the completion of discovery and the plaintiffs gave no excuse for delay);
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`Frazier v. SCI Medical Dispensary Doctor + 2 Staff Members, 1:07-0194, 2009 WL 136724, at
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`*2 (M.D. Pa. Jan. 6, 2009) (“A motion to compel after the close of discovery is not timely and
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`will be denied absent special circumstances.”); Days Inn Worldwide, Inc. v. Sonia Investments,
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`237 F.R.D. 395, 398 (N.D. Tex. 2006) (holding that motion to compel must be filed before close
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`of discovery); Banks v. CBOCS West, Inc., No. 01 C 0795, 2004 WL 723767, at *2 (N.D. Ill.
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`Apr. 1, 2004) (holding that motion to compel filed two months after the close of discovery was
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`untimely). The Haubert Defendants filed their motion to compel on October 11, 2018, more than
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`a month after the close of fact discovery on September 4, 2018. Furthermore, the Haubert
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`Defendants provide no explanation for their delay in filing their motion. Given that the Haubert
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`Defendants’ motion was filed after the close of fact discovery in the instant litigation and is thus
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`not timely, the Court will deny the Haubert Defendants’ motion to compel (Doc. No. 39).
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`IV. CONCLUSION
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`For the foregoing reasons, the Court will deny Defendants’ motions to amend (Doc. Nos.
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`37, 41). The Court will also deny the Haubert Defendants’ motion to compel (Doc. No. 39). An
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`Order consistent with this Memorandum follows.
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