Viesti Associates, Inc. v. McGraw-Hill Companies, Inc.

Filing 103

FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER RE: MOTION TO INTERVENE 83 FILED BY VARIOUS PHOTOGRAPHERS, by Magistrate Judge David L. West on 07/30/14. (nmarb, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge David L. West
______________________________________________________________________________
Civil Action No. 12-CV-00668-WYD-DW
VIESTI ASSOCIATES, INC.
Plaintiff,
v.
McGRAW-HILL GLOBAL EDUCATION HOLDINGS, LLC
and McGRAW-HILL SCHOOL EDUCATION HOLDINGS, LLC,
Defendants.

FINDINGS OF FACT, CONCLUSIONS OF LAW AND
ORDER RE: MOTION TO INTERVENE [DOC. #83]
FILED BY VARIOUS PHOTOGRAPHERS

FINDINGS OF FACT
Background
1.

This is a copyright infringement case brought by Plaintiff Viesti Associates, Inc.

(“VAI”), a stock photography agency based in Durango, Colorado. 1st Am. Compl. ¶ 2 (Doc.
No. 34). The suit was filed on March 16, 2012, Compl. (Doc. No. 1), and is the second such
action brought by VAI against MHE and its predecessor entities for copyright infringement. See
VAI v. McGraw-Hill Cos., No. 11-cv-01237-REB-DW (D. Colo. filed May 5, 2011).
2.

MHE publishes, among other things, educational textbooks and other materials

for the pre-K through 12th grade, college, university and professional schools. Doc. No. 34, ¶ 3;
Unopposed Mot. for Substitution of Parties (Doc. No. 63).

3.

Proposed Intervenors are photographers and stock photo agencies that each

originally entered into invoicing transactions with MHE for use of their photos in MHE’s
educational textbooks over the course of over two decades. Doc. No. 34, ¶ 15 (Dennis Cox LLC
& Liu Liqun), ¶ 16 (Victor Englebert), ¶ 18 (Robert Fried), ¶ 20 (Wolfgang Kaehler
Photography LLC & Wolfgang Kaehler), ¶ 21 (Jason Lauré), ¶ 23 (Laurence Parent
Photography, Inc. & Laurence Parent), ¶ 28 (Ulrike Welsch), ¶ 29 (Natural Exposures, Inc. &
Daniel J. Cox), ¶ 30 (Beryl Goldberg) & ¶ 31 (Native Stock Pictures LLC & Angel Wynn).
Each of these Proposed Intervenors issued his or her own invoices to MHE based on separate
invoice requests and communications from MHE, and each had different invoicing terms,
different courses of conduct, and unique business relationships with the MHE defendants over
the course of the more than two decades of transactions at issue in this dispute. Id.; Doc. No. 929. VAI did not issue and was not involved in any of the Proposed Intervenors’ invoicing
transactions with MHE that are the basis for the copyright infringement action here.
Copyright Interests at Issue & Relationship Between Plaintiff VAI and Proposed Intervenors
4.

VAI alleges to have copyright ownership in the photos originally created and

invoiced to MHE by the Proposed Intervenors through “assignment” agreements. Doc. No. 34,
¶ 11.
5.

VAI and the Proposed Intervenors communicated regarding the structure of this

litigation (and others VAI has pursued against similarly-situated textbook publishers),1 as well as
1

VAI v. Pearson Educ., Inc., 12-cv-02240-PAB-DW (D. Colo. filed Aug. 23, 2012); VAI
v. Pearson Educ., Inc., No. 11-cv-01687-PAB-DW, 2014 WL 1053772 (D. Colo. filed June 28,
2011); VAI v. Pearson Educ., Inc., No. 12-cv-01431-PAB-DW, 2014 WL 1055975 (D. Colo.
filed June 1, 2012); VAI v. McGraw-Hill Cos., No. 11-cv-01237-REB-DW (D. Colo. filed
May 5, 2011); VAI v. Houghton Mifflin Harcourt Publ’g Co., No. 10-cv-01802 (D. Colo. filed
2

Plaintiff VAI’s role as the sole party to this action, prior to and during the course of this
litigation. E.g., Doc Nos. 92-1, 92-2, 92-3; 90-4, 90-5, 90-7, 90-8, 90-11.
6.

Both VAI and Proposed Intervenors have known that MHE challenged VAI’s

standing to bring its aggregated claims of copyright infringement on the Proposed Intervenors’
photos since early on in this litigation. E.g., Answer to 1st Am. Compl. at 20 (“Plaintiff’s claims
are barred . . . by its lack of standing to assert a claim for copyright infringement due to invalid
transfer, assignment, or other defect in ownership of the applicable copyright in the particular
work or works”) (Doc. No. 37); Joint Proposed Scheduling Order at 4 (“Essentially, this case
involves aggregated claims by at least 21 different licensors . . . [and MHE will demonstrate the]
absence of standing by this plaintiff with respect to many of the photographs placed in issue
because the plaintiff does not hold effective rights for purposes of this suit.) (Doc. No. 27);
Scheduling Order, at 3-5 (Doc. No. 29); see also Def.s’ Resp. in Opp’n to Pl.’s Mot. for Partial
Summ. J. at 2, 11-13, in VAI v. McGraw-Hill Cos., No. 11-cv-01237-REB-DW (D. Colo. 2012)
(Doc. No. 86).
7.

Each of the Proposed Intervenors have known about their potential interest in

pursuing claims in their own names since at least than March 2012 when this case was filed, and
correspondence between VAI and the Proposed Intervenors indicates that many, if not all, of
them likely knew of their potential claims much earlier. E.g., Doc Nos. 92-1, 92-2, 92-3; 90-4,
90-5, 90-7, 90-8, 90-11.

July 29, 2010); VAI v. Houghton Mifflin Harcourt Publ’g Co., No. 09-cv-02933, (D. Colo. filed
Dec. 15, 2009); VAI v. Houghton Mifflin Harcourt Publ’g Co., No. 09-cv-01093 (D. Colo. filed
May 11, 2009); VAI v. Houghton Mifflin Harcourt Publ’g Co., No. 09-cv-00743 (D. Colo. filed
Apr. 2, 2009).
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8.

Around January 2012, VAI, through its principal Joe Viesti, communicated with

the stock agencies and photographers from whom he purportedly acquired copyright rights in
photos, including the Proposed Intervenors, and had them execute “Addendum” assignment
agreements because “[a]nother company’s case was thrown out and forced to pay the
defendent’s [sic] legal fees, because their assignment form was not strong enough.” Doc. No.
92-1.
9.

Around April 2011, VAI communicated with Laurence Parent, one of the

Proposed Intervenors here, explaining that the structure of the litigation involved making VAI
the sole plaintiff against the publishers, including MHE, and that VAI was taking on “great
financial risk” in pursuing these claims on Proposed Intervenors’ behalf. Doc No. 92-3. In
particular, this communication made clear that both VAI and the Proposed Intervenors
understood that there was a potential for the litigation to get “thrown out of[] court.” Id.; see
also Doc. No. 92-1.
10.

Other communications between 2009 and 2013 make clear that VAI and the

Proposed Intervenors exchanged documents and entered into purported “assignment” agreements
as part of a “formula to give [VAI] legal standing” to bring copyright lawsuits against the
publishers on behalf of the photographers and stock agencies. Doc. No. 90-13 (Viesti Dep. at
248:14-19, 246:20-247:1, 251:21-252:2); see also Doc Nos. 92-1, 92-2, 92-3; 90-4, 90-5, 90-7,
90-8, 90-11.
11.

VAI acknowledges that this Court, on March 19, 2014, directly held – in a case

involving a similarly-situated textbook publisher and the identical agreements as those at issue
here – that VAI lacks standing under the Copyright Act to litigate claims of copyright
4

infringement based on its purported “assignment” agreements with the photographers, including
the Proposed Intervenors here. Doc. 83, at 1, 11 & n.1; see VAI v. Pearson Educ., Inc.
(Pearson I), No. 11-cv-01687-PAB-DW, 2014 WL 1053772 (D. Colo. Mar. 19, 2014) (involving
Proposed Intervenor Natural Exposures, Inc. and its principal Daniel J. Cox and their purported
assignment of copyright rights in photos to VAI); VAI v. Pearson Educ., Inc. (Pearson II),
No. 12-cv-01431-PAB-DW, 2014 WL 1055975 (D. Colo. Mar. 19, 2014) (involving Proposed
Intervenor Wolfgang Kaehler and his purported assignment of copyright rights in photos to
VAI).
12.

The deadline for joinder of parties and/or amendment of pleadings in this matter

was August 27, 2012. Doc. No. 29 at 9.
13.

Proposed Intervenors filed their motion to intervene, Doc. No. 83, on March 31,

2014, 17 days after close of fact discovery, almost 2 years after VAI filed the Complaint, and
three weeks prior to the summary judgment deadline in this case. See Order re: [Doc. #74] (Doc.
No. 76).
14.

MHE has filed a motion for summary judgment on VAI’s lack of standing under

the Copyright Act, asserting that VAI is barred from pursuing the claims at issue in this dispute
both under principles of issue preclusion, as well as on the merits of the asserted bases for
copyright ownership by VAI. See Defs.’ Mot. for Summ. J. (Doc. No. 89). That motion is fully
briefed and is pending before the Court. An identically-situated motion for summary judgment
is also pending before this Court in VAI v. Pearson Education, Inc., 12-cv-02240-PAB-DW (D.
Colo. Apr. 10, 2014) (Doc. No. 71).

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15.

None of the Proposed Intervenors has been subject to party discovery obligations

under the Federal Rules of Civil Procedure during the course of this litigation.
16.

There has been only limited and incomplete third-party discovery obtained by

MHE from a handful of the Proposed Intervenors.
17. If this Court grants MHE’s motion for summary judgment on VAI’s lack of
standing in this case, the Court would then dismiss all of VAI’s claims, including all of the
claims that the Proposed Intervenors rely upon in their motion to intervene. In other words, if
summary judgment is granted on MHE’s motion, none of the Proposed Intervenors’ claims, as
pursued by Plaintiff VAI, would remain in this litigation.
18. Since filing the motion to intervene here, the Proposed Intervenors have filed
their own action against MHE in the federal court in the Eastern District of Pennsylvania,
asserting identical or virtually identical copyright infringement claims against MHE on the same
photos and the same textbooks as those that are at issue in this dispute. See Englebert v.
McGraw-Hill Global Education Holdings, LLC, 5:14-cv-02062 (E.D. Pa. filed Apr. 8, 2014).
MHE has filed an Answer to the Proposed Intervenors’ party complaint in that action. Id. (Doc.
No. 7). The district court in Philadelphia has stayed that case pending the resolution of the
Proposed Intervenors’ motion to intervene in this case. Id. (Doc No. 21entered July 8, 2014)
(submitted to this Court by the Proposed Intervenors through their Notice of Supplemental
Authority ( Doc. No. 101)).

6

CONCLUSIONS OF LAW
1.

Section 501(b) of the Copyright Act provides that the Court “shall permit the

intervention of any person having or claiming an interest in the copyright” that is implicated in
an action for infringement. 17 U.S.C. § 501(b).
2.

Rule 24 of the Federal Rules of Civil Procedure governs intervention by non-

parties in an existing litigation. The prerequisites of Rule 24 apply even where intervention is
granted unconditionally as a matter of right by statute. NAACP v. New York, 413 U.S. 345, 36566 (1973) (“Intervention in a federal court suit is governed by Fed. Rule Civ. Proc. 24”); Iridium
India Telecom Ltd. v. Motorola, Inc., 165 F. App’x 878, 879-80 (2d Cir. 2005) (“Rule 24(a) by
its own terms requires that, even if an applicant has an ‘unconditional right’ [to intervene] . . .
the application must still be ‘timely’”).
3.

Rule 24(a) provides that “[o]n timely motion, the court must permit anyone to

intervene who . . . is given an unconditional right to intervene by a federal statute.” Fed. R. Civ.
P. 24(a); Jicarilla Apache Tribe v. Hodel, 821 F.2d 537, 539 (10th Cir. 1987) (“One of the
prerequisites to intervention as a matter of right is that it be timely.” (quotation omitted)); see
also NAACP, 413 U.S. at 365-66 (“Whether intervention be claimed of right or as permissive, it
is at once apparent, from the initial words of both Rule 24(a) and Rule 24(b), that the application
must be ‘timely.’ If it is untimely, intervention must be denied.”).
4.

The Tenth Circuit has held that timeliness under Rule 24 is “determined in light

of all circumstances,” including:
(a)
(b)
(c)
(d)

length of time since the applicant knew of his interest in the case,
prejudice to the existing parties,
prejudice to the applicant, and
existence of any unusual circumstances.
7

Ute Distrib. Corp. v. Norton, 43 F. App’x 272, 276 (10th Cir. 2002) (quoting Sanguine,
Ltd. v. U.S. Dep’t of the Interior, 736 F.2d 1416, 1418 (10th Cir. 1984)).
A.

Proposed Intervenors Have Known About Their Copyright Interests in
This Litigation

5.

The test for timeliness is when the Proposed Intervenors were on notice that (a)

their interests were at issue in this case, and (b) those interests would be the subject of a
challenge by MHE as to VAI’s standing to pursue the claims. E.g., Choike v. Slippery Rock
Univ. of Penn., 297 F. App’x 138, 141-2 (3d Cir. 2008) (“‘To the extent the length of time an
applicant waits before applying for intervention is a factor in determining timeliness, it should be
measured from the point at which the applicant knew, or should have known, of the risk to its
rights.’”(citation omitted)); Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223,
1232 (10th Cir. 2010) (courts “measure delay from when the movant was on notice that its
interests may not be protected by a party already in the case” ).
6. The risk that Plaintiff VAI may not having standing to pursue the infringement
claims based upon Proposed Intervenors’ copyright rights in the photos at issue arose prior to
filing of the complaint in this litigation because decisions under the Copyright Act have
unequivocally held that only the legal or beneficial owners of one of the exclusive rights under
Section 106 of the Copyright Act have standing to pursue copyright infringement actions.
Righthaven LLC v. Wolf, 813 F. Supp. 2d 1265, 1273 (D. Colo. 2011) (holding that “assignment
of the bare right to sue is . . . ineffectual” and does not confer “standing to institute an action for
copyright infringement”); see Goss v. Zueger, 2014 WL 901446, at *3 (D. Colo. Mar. 7, 2014)
(“[A] party asserting standing to sue for copyright infringement in the District of Colorado as a
legal owner under 17 U.S.C. § 501(b) must have the ‘exclusive’ right to do at least one of the
8

activities in [§ 106]” (citing Righthaven, 813 F. Supp. 2d at 1272); see also Silvers v. Sony
Pictures Entm’t, Inc., 402 F.3d 881, 890 (9th Cir. 2005) (en banc); Eden Toys, Inc. v. Florelee
Undergarment Co., 697 F.2d 27, 32 & n.3 (2d Cir. 1982) (noting the Copyright Act does not
“permit[] holders of rights under copyrights to choose third parties to bring suits on their
behalf”).
7. Even before this Court’s rejections of VAI’s claims for standing in Pearson I and
Pearson II, courts throughout the country had rejected VAI’s counsel’s efforts to improperly
aggregate copyright infringement claims through ineffectual assignment agreements and other
purported forms of transfer of the bare right to sue. E.g., Minden Pictures, Inc. v. John Wiley &
Sons, Inc., --- F. Supp. 2d ---, 2014 WL 295854 (N.D. Cal. Jan. 27, 2014); Minden Pictures, Inc.
v. John Wiley & Sons, Inc., 2013 WL 1995208 (N.D. Cal. May 13, 2013); Minden Pictures, Inc.
v. Pearson Educ., Inc., 929 F. Supp. 2d 962 (N.D. Cal. 2013); Visuals Unlimited, Inc. v. John
Wiley & Sons, Inc., No. 11 143 Y 00658 13, Case Order No. 5 (AAA Aug. 14, 2013); see also
Doc. No. 89 at 4.
8. Further, as the Tenth Circuit has recognized, if a non-party has actual notice of the
litigation implicating its interests and instead remains silent for years, as each of the Proposed
Intervenors has, as “a conscious tactical judgment,” such delay is a bar to intervention, even
intervention as a matter of right. Hodel, 821 F.2d at 539 (affirming untimeliness determination
and approving district court’s finding that the applicant’s delay was “a conscious tactical
judgment” based on a desire not “to be exposed to an open-ended series of legal costs”).
9. Because the Proposed Intervenors knew for more than two years of not just the
possibility, but the likelihood, that their agreements with VAI would be deemed ineffective to
9

grant VAI standing, they were “on notice that [their] interests may not be protected by a party
[VAI] already in the case.” Oklahoma ex rel. Edmondson v. Tyson Foods, Inc., 619 F.3d 1223,
1232 (10th Cir. 2010); see also Hodel, 821 F.2d at 539.
10. This factor weighs heavily in favor of finding that Proposed Intervenors’ motion
is untimely. See Hodel, 821 F.2d at 539; see also In re SEC, 296 F. App’x 637, 639 (10th Cir.
2008) (affirming trial court finding that intervention was untimely where proposed intervenor
knew of lawsuit and its potential impact for more than a year); Gaedeke Holdings VII, Ltd. v.
Mills, 2013 WL 2532501, at *2-3 (W.D. Okla. June 10, 2013) (finding that delay of more than
two years meant the proposed intervenor “has not satisfied the timeliness requirement”); APG
Enters., Inc. v. Money & More, Inc., 2011 WL 6328656, at *1 (D. Utah Nov. 2, 2011) (rejecting
intervention as of right because the proposed intervenors waited “well over a year and a half”
after claims accrued), report & recommendation adopted by 2011 WL 6328615 (D. Utah Dec.
16, 2011); Harris v. Heubel Material Handling, Inc., 2011 WL 1231155, at *2 (D. Kan. Mar. 29,
2011) (finding Rule 24(a) intervention untimely because “over sixteen months elapsed between
when the prospective interveners were informed of the litigation and when they filed their
motion”); Georgacarakos v. Wiley, 2009 WL 1608984, at *3-5 (D. Colo. Apr. 6, 2009) (denying
intervention where motion was filed “nearly two years after the litigation commenced”).
B.

MHE Would Be Prejudiced by Any Intervention at This Stage of the Litigation

11. Proposed Intervenors have not participated fully as parties in the course of the
almost two years of discovery that has taken place in this litigation, and there is evidence that
some of the Proposed Intervenors have failed to or otherwise did not fully attend to their duties
with respect to the third-party discovery practice that MHE did undertake.
10

12. Motions to intervene that are filed at or after the close of discovery wherein a
party, such as MHE here, has not had a full and fair opportunity to obtain discovery from the
Proposed Intervenors, are typically untimely and impose a prejudice onto the defendant. E.g.,
Werner Invs., LLC v. Am. Family Mut. Ins. Co., 2013 WL 2903400, at *2 (D. Colo. June 14,
2013) (denying motion to intervene where discovery had closed and thus the “intervention would
necessitate further discovery” that would prejudice the defendant); Georgacarakos, 2009 WL
1608984, at *5 (finding motion untimely where “discovery ended . . . the day before the within
motion was filed . . . and . . . [a]lthough [intervenor] attests that he waives any right to file
motions or conduct discovery in this case, Defendants may desire to re-open discovery to seek
information from him, which could further unduly delay this case”).
13. MHE has been hampered by VAI’s litigation tactics and MHE has not had party
discovery from the Proposed Intervenors. Thus, intervention now – after the close of discovery
and after the filing of a dispositive motion that may dispose of the entirety of Proposed
Intervenors’ asserted claims – would unduly delay this case. E.g., Georgacarakos, 2009 WL
1608984, at *5.
14. Not only would intervention delay resolution of this case, this delay would be
distinctly prejudicial to MHE because it obviates the defense strategies and defense preparations
that have been based, to date, on MHE’s understanding that only VAI would be a plaintiff in this
case, and that as such, MHE need not expend resources on developing evidence in response to
the individual photographers acting as plaintiffs. E.g., Hodel, 821 F.2d at 539; D.F. Freeman
Contractors, Inc. v. St. Paul Fire & Marine Ins., Co., 2003 WL 21250670, at *4 (D. Kan. May
28, 2003); see also Fleming v. Lind-Waldock & Co., 922 F.2d 20, 26 (1st Cir. 1990) (“We agree
11

with the district court that defendants would be seriously prejudiced if intervention were allowed
five years after the commencement of Fleming’s actions . . . . [Intervention] would also negate
the preparation and time spent by the defendants on their motions for dismissal and/or summary
judgment. We hold the definite impression that Breech’s intervention motions were a “last
gasp” attempt by the intervenor and Fleming to erase the handwriting on the wall.” ); Kassover
v. Computer Depot, Inc., 691 F. Supp. 1205, 1209-10 (D. Minn. 1987) (intervention where
discovery was nearly closed and defendants were preparing for summary judgment motion
“would be grossly unfair to the defendants;” plaintiff “offers no further justification” for the
motion “[b]eyond the desire to shore up a crumbling lawsuit”), aff’d, 902 F.2d 1571 (8th Cir.
1990).
C.
15.

Proposed Intervenors’ Motion Is Not the Appropriate Vehicle to Cure VAI’s
Potentially Defective Claims
A “motion for intervention under Rule 24 is not an appropriate device to cure a

situation in which plaintiff[] may have stated causes of action that [it has] no standing to
litigate.” McClune v. Shamah, 593 F.2d 482, 486 (3d Cir. 1979) (affirming denial of
intervention, even where intervention may be “as a matter of right” because “it is axiomatic that
‘intervention will not be permitted to breathe life into a ‘nonexistent’ lawsuit’” (citation
omitted)).
16. This principle is well-established and has been recognized by the Supreme Court,
as well as courts throughout the country. United States ex rel. Tex. Portland Co. v. McCord, 233
U.S. 157, 163-64 (1911) (“[I]ntervention could not cure [plaintiff’s lack of standing] in the
original suit.”); Hildebrand v. Dentsply Int’l, 2011 WL 4528343, at *4 (E.D. Pa. Sept. 30, 2011)
(“[S]tanding to bring an action cannot be achieved via intervention by parties that were not
12

originally included in the litigation.” (citation omitted)); Disability Advocates, Inc. v. N.Y. Coal.
for Quality Assisted Living, Inc., 675 F.3d 149, 160 (2d Cir. 2012) (“[O]ur recognition that ‘the
right to intervene presupposes an action duly brought,’ reflects the Supreme Court’s long-held
understanding that where a ‘cause of action has not accrued to the party who undertook to bring
the suit originally . . . intervention cannot cure the vice in the original suit.’” (quoting Pianta v.
H.M. Reich Co., 77 F.2d 888, 890 (2d Cir. 1935), and McCord, 233 U.S. at 163-64)); Naartex
Consulting Corp. v. Watt, 542 F. Supp. 1196 (D.D.C. 1982) (“A motion for intervention under
Rule 24 is ordinarily not a proper device ‘to cure a situation in which plaintiffs may have stated
causes of action that they have no standing to litigate’”(citation omitted)), aff’d, 722 F.2d 779
(D.C. Cir. 1983).
17. If this Court grants MHE’s motion for summary judgment, none of the claims on
Proposed Intervenors’ photos would remain in this action, and as such, Rule 24 is not a proper
device to cure or otherwise save VAI’s lawsuit.2
18. This Court therefore concludes that, in light of all these circumstances, Proposed
Intervenors’ motion to intervene under Rule 24(a) is untimely and therefore must be denied.
19. Because Proposed Intervenors’ motion is untimely under Rule 24(a), it is equally
untimely and inappropriate as a matter of permissive intervention. See City of Tulsa v. Tyson
Foods, Inc., 2008 WL 185701, at *4 (N.D. Okla. Jan. 18, 2008) (“[I]f a court finds a motion to
2

In the event that this Court were to deny MHE’s motion for summary judgment, then no
further need for intervention by the Proposed Intervenors would exist. VAI would then be free
to prosecute the Proposed Intervenors’ claims in VAI’s name. Nevertheless, because this Court
has not yet ruled on MHE’s motion for summary judgment, the decision here denying the
Proposed Intervenors’ motion to intervene is without prejudice as to a later motion to intervene if
the Court later determines that VAI’s claims remain viable and the Proposed Intervenors then
determine that they wish to intervene in their own right.
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be untimely under intervention as of right, likewise the motion cannot be timely under
permissive intervention.”).
D.

The Proposed Intervenors’ Remaining Bases for Injecting Themselves into
This Litigation Are Improper Under the Law

20.

Because Proposed Intervenors’ motion to intervene is untimely, it would be

similarly inappropriate to permit them to be joined in this action at this juncture.
21. Also, MHE has demonstrated that each of the Proposed Intervenors had his or
her own invoicing relationship with MHE over the course of the two decades at issue. As a
result, apart from being untimely and causing undue delay to the efficient resolution of this
litigation, such joinder now would be improper as it would result in a misjoinder. E.g. Senisi v.
John Wiley & Sons, Inc., No. 13 Civ. 3314, slip op. at 11 (S.D.N.Y. Mar. 28, 2014) (ordering
severance of misjoined claims, finding that the joinder of multiple photographers’ separate
claims was improper, where, as here, the parties “did not take any photographs together and each
allegedly licensed his or her photographs to [the publisher] through multiple stock photography
agencies or through individual direct licensing agreements . . . over a time span of at least twenty
years[, and] [e]ven those claims based on publications that contain more than one allegedly
infringing photograph have different transaction histories”); Patrick Collins, Inc. v. John Does,
2013 WL 1660673, at *4 (S.D. Cal. Apr. 16, 2013) (severing claims where “individual facts and
defenses” would predominate and “joinder would likely confuse and complicate the issues”). It
is also unnecessary as the Proposed Intervenors have already commenced, and MHE has already
answered, their own litigation on the very same claims. See Englebert, 5:14-cv-02062 (E.D.
Pa.).

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22. Because Rule 17(a) does not permit a “‘real party in interest’ to ‘ratify’ an action
brought by a party that does not have statutory standing [in the first instance],” Proposed
Intervenors are not permitted to ratify this action brought solely by Plaintiff VAI by virtue of
their motion to intervene. E.g., Minden, 2014 WL 295854, at *11-12 (“To allow a copyright
owner to ‘ratify’ the filing of an action would be to effectively allow after-the-fact assignment of
the bare right to sue”) (citing cases); see Fed. Treas. Enters. Sojuzplodoimport v. SPI Spirits
Ltd., 726 F.3d 62, 83-84 (2d Cir. 2013) (holding that allowing a non-party to enlarge standing by
using Rule 17 would constitute a violation of the Rules Enabling Act, which prohibits the use of
the Rules to enlarge a substantive right under the Copyright Act).
23. Further, because the evidence suggests that VAI’s decision at the outset of this
case not to name the Proposed Intervenors as party-plaintiffs was not an “honest” mistake, but
rather part of a larger stratagem by VAI, its counsel, and the Proposed Intervenors themselves,
Rule 17 does not apply. E.g. Lans v. Gateway 2000, Inc., 84 F. Supp. 2d 112, 122 (D.D.C. 1999)
(Rule 17 ratification does not apply where “failure to sue in the name of [the proper party] was
not “an honest and understandable mistake”), aff’d sub nom., Lans v. Digital Equip. Corp., 252
F.3d 1320 (Fed. Cir. 2001); Live Entm’t, Inc. v. Digex, Inc., 300 F. Supp. 2d 1273, 1277 (S.D.
Fla. 2003) (same).
WHEREFORE, based on the parties’ briefing, the record of this matter as a whole, and
the oral argument held on July 28, 2014, the Motion to Intervene [Doc. #83] DENIED.
DATED: July 30, 2014
BY THE COURT:
s/David L. West
United States Magistrate Judge
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NOTICE: Pursuant to Fed. R. Civ. P. 72(a), “[w]ithin 14 days after being
served with a copy of the magistrate’s order, a party may serve and file
objections to the order; a party may not thereafter assign as error a defect in the
magistrate judge’s order to which objection was not timely made. The district
judge to whom the case is assigned shall consider such objections and shall
modify or set aside any portion of the magistrate judge’s order found to be clearly
erroneous or contrary to law.” See 28 U.S.C. § 636(b)(1)(A) (“a judge of the court
may reconsider any pretrial matter under this subparagraph (A) where it has been
shown that the magistrate’s order is clearly erroneous or contrary to law.”).

16