Ivymedia Corporation v. Ilikebus, Inc. et al

Filing 60

Judge Nathaniel M. Gorton: ENDORSED MEMORANDUM & ORDER entered 1) plaintiffs motion for leave to amend the complaint (Docket No. 47 ) is DENIED,2) defendants motion for leave to amend the answer (Docket No. 48 ) is DENIED,3) defendant s motion to amend the scheduling order (Docket No. 49 ) is DENIED, and4) the joint motion to amend the scheduling order (Docket No. 58 ) is ALLOWED.The case will proceed with IvyMedias claim of copyright infringement. The pre-trial sc hedule is amended as follows:all fact discovery shall be completed by June 15, 2016; plaintiffs experts, if any, shall be designated and Rule 26 reports exchanged on or before June 30, 2016;defendants experts, if any, shall be designated and Rule 26 reports exchanged on or before July 31, 2016; expert depositions shall be completed by August 31, 2016; dispositive motions shall be filed by September 30, 2016; oppositions to dispositive motions shall be filed by October 31, 2016;the final pretrial conference will be held on Thursday, February 2, 2017 at 3:00 p.m.; and trial shall commence on Monday, February 6, 2017 at 9:00 a.m.If the parties choose to continue the Alternative Dispute Resolution hearing, they may make such a request to Senior Judge Edward F. Harrington. (Caruso, Stephanie)

United States District Court
District of Massachusetts
IVYMEDIA CORPORATION,
Plaintiff,
v.
ILIKEBUS, INC., ALAN ZOU, TONG
WEI AND JOHN DOE,
Defendants.

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Civil Action No.
15-11918-NMG

MEMORANDUM & ORDER
GORTON, J.
This is a copyright infringement dispute between two
competing companies that provide online ticketing and
reservation services for bus companies.

Plaintiff IvyMedia

Corporation (“IvyMedia” or “plaintiff”) alleges that defendants
iLIKEBUS, Inc. (“iLIKEBUS”), Alan Zou (“Zou”), Tong Wei (“Wei”)
and John Doe (collectively, “defendants”) unlawfully copied its
website features for use on their website to poach its clients.
Pending before the Court are two motions to amend the
pleadings and two motions to amend the deadlines in the
scheduling order.

For the reasons that follow, 1) plaintiff’s

motion to amend the complaint will be denied, 2) defendants’
motion to amend the answer will be denied, 3) defendants’ motion
to amend the scheduling order will be denied and 4) the joint
motion to amend the scheduling order will be allowed.
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I.

Background and procedural history
IvyMedia initiated the instant action against iLIKEBUS,

Zou, Wei and Doe in May, 2015.

Its complaint alleged violations

of the Copyright Act, the Lanham Act, the Anticybersquatting
Consumer Protection Act (“the ACPA”) and three state law
violations.

Defendants moved to dismiss the complaint.

In July, 2015, the Court allowed, in part, and denied, in
part, defendants’ motion to dismiss.

The Court found that the

copyright claim was “tenuous” but survived dismissal.

The Court

then dismissed the Lanham Act claim as duplicative of the
copyright claim, the ACPA claim for failure to state a claim and
the state law claims as preempted by the federal Copyright Act.
Shortly thereafter, defendants filed an answer that did not
assert any counterclaims.
The Court convened a scheduling conference in September,
2015 and instructed the parties to file amendments or
supplements to their pleadings, if any, on or before January 31,
2016.

IvyMedia moved to amend its complaint to add nine new

claims on January 20, 2016 and defendants moved to amend their
answer to add two antitrust counterclaims on the last day for
filing such amendments.

Defendants also moved to extend the

scheduling deadlines by six months to allow for discovery on the
new claims and counterclaims which drastically altered the
composition of the case.
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In April, 2016, the parties jointly moved to extend the
scheduling deadlines by one month in order to complete
depositions with respect to IvyMedia’s copyright claim.
II.

Plaintiff’s motion to amend the complaint
In its motion to amend the complaint, IvyMedia seeks
1) to bolster its remaining
additional facts,

copyright

claim

with

2) to revive its previously dismissed a) Lanham Act
claim of false designation of origin, b) common law
claim of unfair competition and c) Chapter 93A claim
with additional facts,
3) to
raise
three
new
Lanham
Act
claims
of
misappropriation, false advertising and passing off,
and
4) to assert new state law claims of false advertising,
breach of contract and breach of the implied covenant
of good faith and fair dealing.
IvyMedia’s motion will be denied because the amendment
would be futile.

None of the proposed claims would survive

dismissal under the Fed. R. Civ. P. 12(b)(6) standard.
The four Lanham Act claims are duplicative of the copyright
claim because they arise out of IvyMedia’s allegations that
defendants unlawfully “copied” and “misappropriated” certain
features of IvyMedia’s website.

None of the Lanham Act claims

states a claim because IvyMedia does not allege sufficient facts
to support other instances of “copying” or assert that
defendants misused its trademark of “GOTOBUS”.

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The state law claim of false advertising and the common law
claim of unfair competition are preempted by the Copyright Act
because they are based upon the same conduct at issue in the
copyright claim.

Both of the contract claims fail to state a

claim because IvyMedia does not allege that the terms of its
User Agreement were reasonably communicated to, or accepted by,
defendants, i.e., that there was a valid contract between the
parties.

The Chapter 93A claim appears to be “tacked on” and

presents no new factual allegations.
Thus, none of IvyMedia’s new claims would survive dismissal
and it would be futile for it to amend the complaint.
Accordingly, its motion to amend the complaint will be denied.
III. Defendants’ motion to amend the answer
Defendants seek to amend the answer in order to add two new
antitrust counterclaims.

That motion will also be denied.

Although defendants allege sufficient facts under the Rule
12(b)(6) standard to support such counterclaims, their motion
appears to be a disingenuous response to plaintiff’s motion to
amend the complaint and comes at the last possible minute.
Furthermore, defendants could have included the counterclaims in
their July, 2015 answer long before the conclusion of the
discovery period.
With respect to the counterclaim of monopolization,
defendants could have factually alleged in their answer that
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IvyMedia 1) possessed monopoly power in the relevant market,
i.e., the market of online booking services for low cost bus
operators on the Eastern Seaboard, and 2) deliberately acquired
or maintained its monopoly power through anti-competitive
conduct such as threatening to cease doing business with bus
operators who also did business with its competitors.
With respect to the counterclaim of attempted
monopolization, defendants could have factually alleged in their
answer that IvyMedia 1) engaged in anti-competitive acts such as
the exclusive dealing described above, 2) acted with the
specific intent to destroy its competition and monopolize the
market and 3) had a dangerous probability of achieving monopoly
power in the relevant market.
If defendants wish to pursue their antitrust claims (which
arise from facts other than those alleged by IvyMedia in support
of its copyright claim), they can file a complaint against
IvyMedia in a separate action rather than adding complex
counterclaims and a six-month delay to this case.
Accordingly, defendants’ motion to amend will be denied.
IV.

Defendants’ motion to amend the scheduling order
Defendants move to amend the scheduling order by extending

all deadlines by six months in order to conduct discovery on the
new claims and counterclaims.

A six-month extension is

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unwarranted given the current posture of the case.

That motion

will be denied.
ORDER
For the foregoing reasons,
1) plaintiff’s motion for leave to amend the complaint
(Docket No. 47) is DENIED,
2) defendants’ motion for leave to amend the answer (Docket
No. 48) is DENIED,
3) defendants’ motion to amend the scheduling order (Docket
No. 49) is DENIED, and
4) the joint motion to amend the scheduling order (Docket
No. 58) is ALLOWED.
The case will proceed with IvyMedia’s claim of copyright
infringement.

The pre-trial schedule is amended as follows:

 all fact discovery shall be completed by June 15, 2016;
 plaintiff’s experts, if any, shall be designated and Rule
26 reports exchanged on or before June 30, 2016;
 defendants’ experts, if any, shall be designated and Rule
26 reports exchanged on or before July 31, 2016;
 expert depositions shall be completed by August 31, 2016;
 dispositive motions shall be filed by September 30, 2016;
 oppositions to dispositive motions shall be filed by
October 31, 2016;
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 the final pretrial conference will be held on Thursday,
February 2, 2017 at 3:00 p.m.; and
 trial shall commence on Monday, February 6, 2017 at
9:00 a.m.
If the parties choose to continue the Alternative Dispute
Resolution hearing, they may make such a request to Senior Judge
Edward F. Harrington.
So ordered.

/s/ Nathaniel M. Gorton
Nathaniel M. Gorton
United States District Judge
Dated: May 5, 2016

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