Market Studies LLC v. Technical Analysis Incorporated

Filing 62

ORDER granting 48 Technical Analysis, Inc.'s Motion to Strike Plaintiff's Jury Demand. Signed by Judge James A Teilborg on 10/22/12.(TLJ)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Market Studies, LLC, a limited liability)
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company
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Plaintiff,
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vs.
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Technical Analysis, Inc., a Washington)
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corporation
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Defendant.
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No. CV 11-01895-PHX-JAT
ORDER

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Pending before the Court is Defendant’s motion to strike Plaintiff’s jury demand.
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(Doc. 48). For the following reasons, Defendant’s motion is granted.
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I.

Background

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On September 26, 2011, Plaintiff Market Studies, LLC filed a complaint against
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Defendant Technical Analysis, Inc. in this Court alleging copyright infringement, unfair
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competition, unjust enrichment, and trademark infringement. (Doc. 1) The original complaint
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did not include a jury demand. Just over six months later, Plaintiff moved to amend its
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complaint. In the proposed Amended Complaint, Plaintiff withdrew its copyright claim and
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added a claim for improper interference with a business relationship. (Doc. 43 at 6). There
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was no jury demand included in Plaintiff’s proposed Amended Complaint (Doc. 28). After
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the Court granted Plaintiff leave to amend, Plaintiff filed its Amended Complaint with a jury
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demand included on April 10, 2012. (Doc. 45). Defendant now moves to strike the jury
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demand in the Amended Complaint as untimely. In response, Plaintiff argues that a jury trial

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is appropriate because Plaintiff properly invoked its Constitutional right to a jury trial in its

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Amended Complaint. Plaintiff argues that Defendant’s Answer to the Amended Complaint

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was the last pleading filed, and Plaintiff had fourteen days thereafter to make a jury demand.

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In addition, Plaintiff argues that its intentional interference with a business relationship

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claim, which asserts that Plaintiff had a business expectancy that Defendant knew of and

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improperly interfered with, and the first four counts included in its Amended Complaint

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require evidence that was not necessary to prove the claims in the original complaint and

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raise new causes of action that warrant a jury trial.

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II.

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“On any issue triable of right by a jury, a party may demand a jury trial by: (1)

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serving the other parties with a written demand—which may be included in a pleading—

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not later than 14 days after the last pleading directed to the issue is served.” Fed. R. Civ.

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P. 38(b)(1). The filing of an amended complaint revives the right to a jury trial only if

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that complaint raises new issues not raised by prior pleadings, and then only as to those

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new claims. Lutz v. Glendale Union High School, 403 F.3d 1061, 1066 (9th Cir. 2005);

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see also Fed. R. Civ. P. 38(d) (“A party waives a jury trial unless its demand is properly

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served and filed.”). “‘[T]he presentation of a new theory does not constitute the

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presentation of a new issue on which a jury trial should be granted [as of right] under . . .

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Rule 38(b).’ Rather, Rule 38(b) is concerned with issues of fact.” Id. (internal quotation

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and citations omitted). Thus, if the issues in the original complaint and the amended

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complaint turn on the same “matrix of facts,” then a party is not entitled to a trial by jury.

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Las Vegas Sun, Inc. v. Summa Corp., 610 F.2d 614, 620 (9th Cir. 1979).

Legal Standard

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Further, a district court has discretion to order a jury trial on a motion by a party

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who has not filed a timely demand for one. Fed. R. Civ. P. 39(b). This discretion is

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narrow and does not permit a court to grant relief when the failure to make a jury demand

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is the result of oversight or inadvertence. Lewis v. Time, Inc., 710 F.2d 549, 556-57 (9th

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Cir. 1983); see Rutledge v. Electric Hose & Rubber Co., 511 F.2d 668, 675 (9th Cir.
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1975) (although relief under the rule is in the discretion of the district court, relief should

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rarely be granted in default of a proper request for it).

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III.

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The main dispute between the Parties is whether Plaintiff’s newly-added intentional

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interference with a business relationship claim and Plaintiff’s original trademark

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infringement, unfair competition, and unjust enrichment claims arise from the same matrix

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of facts.

Analysis

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Plaintiff’s original claims were copyright infringement, unjust enrichment, unfair

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competition, and trademark infringement. The copyright infringement and unjust enrichment

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claims were based upon Defendant’s willful and unlicensed use of computer code and

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intangible property in which Plaintiff had a protected interest. Plaintiff alleged losses on

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these claims in the form of damage to Plaintiff’s reputation, goodwill, and lost profits that

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have allegedly been diverted from Plaintiff to Defendant. Similarly, the unfair competition

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claim is predicated on the same allegations of conduct, and Plaintiff argues that these actions

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could potentially result in the mistaken idea amongst customers, potential customers, and the

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public that Defendant’s goods and services are affiliated with Plaintiff’s goods and services.

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Finally, the trademark infringement claim was founded on Defendant’s willful and

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unlicensed use and marketing of Plaintiff’s registered trademarks, including “DeMark

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Indicators,” “Sequential,” “Setup,” “Countdown,” and “Combo,” leading to confusion in the

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marketplace regarding the association of Defendant with Plaintiff. Taken together, these legal

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theories are based on facts that relate to Defendant’s unauthorized use of Plaintiff’s business

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reputation and goodwill and the resultant damages.

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In its newly-added claim, Plaintiff alleges that Defendant knew of and intentionally

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interfered with Plaintiff’s business expectancy. This argument is squarely constructed around

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Defendant’s alleged publication of “the Traders’ Tips[,] knowing the publications contained

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inaccurate and misleading representations of the DeMark Indicators.” (Doc. 28 at ¶ 52).

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Plaintiff relies on facts that relate to Plaintiff’s business expectancy, Defendant’s knowledge

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of that expectancy, and Defendant’s intentional interference with the business expectancy
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that caused damage to the Plaintiff. Plaintiff asserts that these are new factual allegations that

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present new issues. However, though shrouded in different language, these claims merely

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amount to the presentation of a new theory, not a new issue. Like Plaintiff’s contentions in

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the original complaint, Plaintiff relies on facts that relate to Defendant’s unauthorized use of

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Plaintiff’s business reputation and goodwill and the resultant damages to make its intentional

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interference argument. Accordingly, all of Plaintiff’s claims arise from the same matrix of

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facts, and Plaintiff’s addition of its improper interference with a business relationship claim

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is simply a new legal theory that does not entitle Plaintiff to the revival of its right to a jury

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trial.

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Further, Plaintiff has not provided the Court with any evidence that its original

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failure to request a jury demand resulted from anything other than oversight or

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inadvertence. Accordingly, the Court cannot exercise its discretion to grant Plaintiff a

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jury trial.

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IV.

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Based on the foregoing,

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IT IS ORDERED that Technical Analysis, Inc.’s Motion to Strike Plaintiff’s Jury

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CONCLUSION

Demand (Doc. 48) is granted.
DATED this 22nd day of October, 2012.

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