Frans Lanting, Inc. v. McGraw-Hill Global Education Holdings, LLC et al

Filing 43

ORDER to Submit Supplemental Declaration re 30 MOTION to Amend/Correct 1 Complaint. Plaintiff shall file its supplemental declaration by 9:00 a.m. on May 31, 2016. Signed by Magistrate Judge Donna M. Ryu on 5/25/2016. (dmrlc3, COURT STAFF) (Filed on 5/25/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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FRANS LANTING, INC.,

Case No. 15-cv-05381-DMR

Plaintiff,
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v.

ORDER TO SUBMIT SUPPLEMENTAL
SUBMISSION

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United States District Court
Northern District of California

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MCGRAW-HILL GLOBAL EDUCATION
HOLDINGS, LLC, et al.,

Re: Dkt. No. 30

Defendants.
Plaintiff Frans Lanting, Inc. has filed a Revised Motion to Amend the Complaint. [Docket

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No. 30.] Plaintiff seeks to remove certain claims from the original Complaint that have been

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shown to be noninfringing. Plaintiff also seeks to add seventy-two claims of copyright

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infringement based on licenses issued to Defendants McGraw-Hill Education Global Education

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Holdings, LLC and McGraw-Hill School Education Holdings, LLC (collectively “Defendants” or

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“MHE”) by Plaintiff’s stock photography licensing agency, Corbis Corporation.

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Defendants do not oppose the removal of claims, but oppose the addition of the new

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proposed claims based, in part, on their argument that Plaintiff unduly delayed in seeking

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amendment of the new claims based on the Corbis licenses. Defendants assert that “[t]here is no

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question that Plaintiff’s counsel has had in its possession a substantial number of the Corbis

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invoices now pleaded in this case since well before the Complaint here.” Opposition to Motion to
Amend at 2 (emphasis in original). Defendants contend that Plaintiff’s counsel has been litigating
cases involving many of the same invoices from Corbis for more than three years and that at least
one case, Lefkowitz v. MHE, No. 1:13-cv-05023-KPF (S.D.N.Y.), has addressed the liability of
Defendants on a number of the invoices at issue in Plaintiff’s proposed amendments.
Plaintiff concedes that it had some, but not all of the Corbis invoices at the time of the
filing of the Revised Motion for Leave to Amend. Reply at 9 (citing Declaration of A. Kerr

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[Docket No. 30-3], ¶¶2-3).
In assessing undue delay under Rule 15, the inquiry focuses on whether the plaintiff knew

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of the facts or legal bases for the amendments at the time the operative pleading was filed and

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nevertheless failed to act promptly to add them to the pleadings. See AmerisourceBergen Corp. v.

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Dialysist W., Inc., 465 F.3d 946, 953 (9th Cir. 2006).
From Plaintiff’s Motion for Leave to Amend, Reply and declarations, the court is unable to

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discern when Plaintiff became aware of the facts or legal bases for the proposed amendments

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based on the Corbis invoices for the seventy-two photos, which is central to the undue delay

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analysis. Therefore, Plaintiff is instructed to file a declaration by 9:00 a.m. on May 31, 2016

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United States District Court
Northern District of California

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stating when it became aware of the facts or legal bases for its claims of copyright infringement
for each of the seventy-two Photographs covered by the Corbis invoices in Plaintiffs proposed
amendments, whether Plaintiff has the Corbis invoice for each of the Photographs, when Plaintiff
received access to those invoices, and whether Plaintiff was aware of the facts or legal bases for
each of these claims at the time that it filed its original Complaint in this matter on November 24,
2015.

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IT IS SO ORDERED.
Dated: May 25, 2016
______________________________________
Donna M. Ryu
United States Magistrate Judge

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