Sarvis v. Polyvore, Inc.

Filing 51

Judge Nathaniel M. Gorton: ORDER entered. MEMORANDUM AND ORDER: "For the foregoing reasons, 1) Plaintiff's Motion for Leave to File Amended Complaint (Docket No. 37 ) is ALLOWED; 2) Plaintiff's Motion for Leave to File a Reply to De fendant's Opposition (Docket No. 44 ) is DENIED AS MOOT; 3) Plaintiff's Motion to Strike (Docket No. 45 ) is DENIED AS MOOT; and 4) Plaintiff's Motion to Reconsider Dismissal of Plaintiff's Count for Polyvore's Vicarious Infringement (Docket No. 46 ) is DENIED. So ordered. "(Moore, Kellyann)

United States District Court
District of Massachusetts
ROBERT SARVIS,
Plaintiff,
v.
POLYVORE, INC.,
Defendant.

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Civil Action No.
12-12233-NMG

MEMORANDUM & ORDER
GORTON, J.
Pro se plaintiff Robert Sarvis (“Sarvis”) alleges that
defendant Polyvore, Inc. (“Polyvore”) infringes copyrighted
images that have been assigned to him by the artist Sheila Wolk.
In September, 2013, this Court adopted the Report and
Recommendation of Magistrate Judge Marianne B. Bowler to dismiss
his claim of vicarious infringement but permit Sarvis to seek
leave to amend his other claims of infringement.
Sarvis has since moved 1) for leave to file a Second
Amended Complaint, 2) for leave to file a reply brief to respond
to arguments raised in Polyvore’s opposition to his motion to
amend, 3) to strike a sentence in Polyvore’s opposing memorandum
and 4) for reconsideration of the dismissal of his claim of
vicarious infringement.

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I.

Motion for Leave to File Second Amended Complaint
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its

complaint once as a matter of course either before the other
party files a responsive pleading or 21 days thereafter. Fed. R.
Civ. P. 15(a)(1).

All other amendments require the written

consent of the opposing party or leave of court. Fed. R. Civ. P.
15(a)(2).

The court “should freely give leave when justice so

requires.” Id.

Although Rule 15 has been construed liberally,

amendment is not warranted if it would be futile or reward undue
or intended delay. See Resolution Trust Corp. v. Gold, 30 F.3d
251, 253 (1st Cir. 1994).
The Court will allow the motion and permit Sarvis to file
his Second Amended Complaint.

At this early stage, the Court

does not find that amendment would be futile but otherwise takes
no position on the merits of the claims in the proposed Second
Amended Complaint.

It notes only that, on its face, the

proposed Second Amended Complaint addresses the deficiencies
identified by Magistrate Judge Bowler.

For instance, Sarvis has

attached an affidavit from Sheila Wolk and a copy of the
Assignment dated September 10, 2012 to prove that he is the
actual assignee of the subject copyrighted work.

He has also

included new facts concerning contest entries, winner lists and
Polyvore’s search functionality.

While Polyvore contends that

the proposed amendments are futile because Sarvis cannot prevail
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on his amended claims as a matter of law, the Court declines to
address the highly technical arguments raised by Polyvore until
they are squarely before the Court in a motion to dismiss or
other dispositive motion.
II.

Motion to Reconsider Dismissal of Claim of Vicarious
Infringement
Sarvis also moves the Court to reconsider its dismissal of

his vicarious infringement claim.

A motion for reconsideration

is an “extraordinary remedy” granted only when the movant
demonstrates that the court committed a “manifest error of law”
or that newly discovered evidence that was not previously
available has come to light. Palmer v. Champion Mortg., 465 F.3d
24, 30 (1st Cir. 2006) (quoting Charles Alan Wright et al.,
Federal Practice and Procedure § 2810.1 (2d ed. 1995)).

Sarvis

makes no such showing here and instead advances arguments that
have already been considered and rejected by Magistrate Judge
Bowler and this Court. See id. (“[A motion for reconsideration]
is normally not a promising vehicle for revisiting a party’s
case and rearguing theories previously advanced and rejected.”).
As a result, his motion will be denied.

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ORDER
For the foregoing reasons,
1)

Plaintiff’s Motion for Leave to File Amended Complaint
(Docket No. 37) is ALLOWED;

2)

Plaintiff’s Motion for Leave to File a Reply to
Defendant’s Opposition (Docket No. 44) is DENIED AS
MOOT;

3)

Plaintiff’s Motion to Strike (Docket No. 45) is DENIED
AS MOOT; and

4)

Plaintiff’s Motion to Reconsider Dismissal of
Plaintiff’s Count for Polyvore’s Vicarious
Infringement (Docket No. 46) is DENIED.

So ordered.
/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated June 30, 2014

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