Photographic Illustrators Corporation v. Bulbtronics Inc.

Filing 37

Magistrate Judge Judith G. Dein: ORDER entered. MEMORANDUM OF DECISION AND ORDER allowing 23 Plaintiff's Motion to Dismiss Counterclaims I and III. (Dambrosio, Jolyne)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

PHOTOGRAPHIC ILLUSTRATORS CORP., )
)
Plaintiff,
)
v.
)
)
BULBTRONICS INC.,
)
)
Defendant.
)

CIVIL ACTION
NO. 13-10037-JGD

MEMORANDUM OF DECISION AND ORDER ON PLAINTIFF’S
MOTION TO DISMISS FIRST AND THIRD COUNTERCLAIMS
June 26, 2013
DEIN, U.S.M.J.
I. INTRODUCTION
This matter is before the court on the plaintiff’s motion to dismiss the first and
third counterclaims asserted by Bulbtronics, specifically a claim for tortious interference
with a business relationship (Count I) and violation of Mass. Gen. Laws ch. 93A. (Count
III). For the reasons detailed herein and in court during oral argument, the motion to
dismiss (Docket No. 23) is ALLOWED. The two counterclaims are dismissed without
prejudice. The defendant is to file any amended counterclaims within fourteen (14) days
after the scheduled mediation is completed, if the matter is not settled.
II. STATEMENT OF FACTS
The plaintiff, Photographic Illustrators Corporation (“PIC”), has brought an action
against Bulbtronics Inc. (“Bulbtronics”) alleging, inter alia, that Bulbtronics violated

PIC’s copyrights by reproducing and distributing PIC’s copyrighted photographic images
on Bulbtronics’ website without permission. Bulbtronics denies all liability, alleging,
inter alia, that it had permission to use the images from PIC’s licensee, Osram Sylvania.
In addition to denying liability, Bulbtronics has asserted several counterclaims against
PIC, namely a claim of tortious interference with Bulbtronics’ business relationship with
Osram Sylvania (Count I), a claim for a declaratory judgment for non-infringement
(Count II), and a claim that PIC violated Mass. Gen. Laws ch. 93A. (Count III). PIC has
moved to dismiss the first and third counterclaim pursuant to Fed. R. Civ. P. 12(b)(6) for
failure to state a claim upon which relief can be granted. (Docket No. 23).
The substantive factual allegations asserted by Bulbtronics are contained in ¶ 11 of
the counterclaims. Therein, Bulbtronics alleged as follows:
11.
On information and belief, PIC, in bad faith, contacted Osram
Sylvania regarding whether Osram Sylvania had authorized or
permitted third party use of images for use by resellers of Osram
Sylvania products. Notwithstanding the fact Osram Sylvania did not
notify PIC that Bulbtronics was not authorized or not permitted to
use the images, and PIC had agreed that Sylvania could license and
authorize third-party use of images for use by resellers of Osram
Sylvania products, PIC interfered with Bulbtronics and Osram
Sylvania’s business relationship.
(Docket No. 20). With respect to its 93A claim, Bulbtronics has alleged as follows:
18.
PIC’s wrongful actions, conduct, and methods, as described
herein, constitute unfair and/or deceptive acts and/or practices in the
conduct of trade or commerce, in violation of G.L. c. 93A.

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(Id. at ¶ 18) During oral argument on PIC’s motion to dismiss, Bulbtronics represented to
the court that it believed that there were a number of additional relevant facts that it
would plead in support of its claims if given the opportunity to do so.
III. ANALYSIS
When ruling on a motion to dismiss brought under Fed. R. Civ. P. 12(b)(6), the
court must accept as true all well-pleaded facts, and give the plaintiff the benefit of all
reasonable inferences. See Cooperman v. Individual Inc., 171 F.3d 43, 46 (1st Cir.
1999). Dismissal is only appropriate if the pleadings, so viewed, fail to support “‘a
plausible entitlement to relief.’” Rodriguez-Ortiz v. Margo Caribe, Inc., 490 F.3d 92, 95
(1st Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 559, 127 S. Ct. 1955,
1967, 167 L. Ed. 2d 929 (2007)). Nevertheless, “[w]hile a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff’s
obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires more than labels
and conclusions, and a formulaic recitation of the elements of a cause of action will not
do[.]” Twombly, 550 U.S. at 555, 127 S. Ct. at 1964-65 (internal citations and
punctuation omitted).
Two underlying principles must guide the court’s assessment as to the adequacy of
the pleadings to support a claim for relief. Maldonado v. Fontanes, 568 F.3d 263, 268
(1st Cir. 2009). “‘First, the tenet that a court must accept as true all of the allegations
contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice.’
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Such conclusory statements are ‘not entitled to the assumption of truth.’” Id. (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 664, 129 S. Ct. 1937, 1940, 173 L. Ed. 2d 868 (2009))
(internal citations omitted). “Second, only a complaint that states a plausible claim for
relief survives a motion to dismiss.” Id. (citing Twombly, 550 U.S. at 556, 127 S. Ct. at
1966). “This second principle recognizes that the court’s assessment of the pleadings is
‘context-specific,’ requiring ‘the reviewing court to draw on its judicial experience and
common sense.’ ‘[W]here the well-pleaded facts do not permit the court to infer more
than the mere possibility of misconduct, the complaint has alleged – but it has not
show[n] – that the pleader is entitled to relief.’” Id. (quoting Twombly, 550 U.S. at 556,
127 S. Ct. at 1966) (internal quotations and citation omitted; alterations in original).
In the instant case, the challenged counterclaims fail because the factual
allegations are merely conclusory assertions of wrongdoing. The “threadbare” recitals of
wrongdoing are insufficient. However, in light of the representations that Bulbtronics has
additional relevant information, which it would include in an amended pleading, the
motion to dismiss is allowed without prejudice to Bulbtronics filing amended
counterclaims. See Transwitch Corp. v. Galazar Networks, Inc., 377 F. Supp. 2d 284,
290 (D. Mass. 2004) (Leave to amend under Fed. R. Civ. P. 15 “‘is freely given when
justice so requires’ absent an adequate basis to deny amendment such as futility, bad
faith, undue delay or a dilatory motive.”), and cases cited.
IV. CONCLUSION

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For the reasons detailed herein, the plaintiff’s Motion to Dismiss Counterclaims I
and III (Docket No. 23) is ALLOWED. The two counterclaims are dismissed without
prejudice. The defendant is to file any amended counterclaims within fourteen (14) days
after the scheduled mediation is completed, if the matter is not settled.

/ s / Judith Gail Dein
Judith Gail Dein
United States Magistrate Judge

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