Ivymedia Corporation v. Ilikebus, Inc. et al

Filing 98

Judge Nathaniel M. Gorton: ENDORSED ORDER entered. MEMORANDUM AND ORDERIn accordance with the foregoing, plaintiffs motion to amend the complaint (Docket No. 80) is ALLOWED and defendants motion to strike (Docket No. 88) is DENIED.The current pre-trial schedule is modified as follows:02/28/2017 Additional discovery on the amendments to the complaint shall be completed;03/14/2017 Supplement to defendants memorandum in support of their motion for summary judgment due (10 pages or less);03/21/2017 Supplement to plaintiffs opposition to summary judgment motion due (10 pages or less);05/09/2017 Motions in limine due;05/16/2017 Responses to in limine motions, lists of witnesses and exhibits, due; Final pretrial conference set for 5/24/2017 03:00 PM in Courtroom 4 before Judge Nathaniel M. Gorton;Jury Trial set for 5/30/2017 09:00 AM in Courtroom 4 before Judge Nathaniel M. Gorton (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 case involves a copyright infringement dispute between
two competing businesses that provide online ticketing and
reservation services for bus companies.

Plaintiff IvyMedia

Corporation (“IvyMedia” or “plaintiff”) alleges that defendants
iLIKEBUS, Inc. (“iLIKEBUS”), Alan Zou and Tong Wei
(collectively, “defendants”) unlawfully copied its website’s
characteristics.

Pending before the Court are plaintiff’s

motion to amend the complaint and defendants’ motion to strike.
For the reasons that follow, the motion to amend will be allowed
and the motion to strike will be denied.
I.

Factual and Procedural Background:
IvyMedia, a Massachusetts corporation, offers a web-based

platform for customers to make reservations and purchase bus
tickets.

Its original website, www.IvyMedia.com, has been
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operating since March, 2002.

It also owns and operates the

website www.GotoBus.com which was launched in 2006.

IvyMedia

acts as an independent contractor for bus companies and receives
a commission based on each ticket sale made through its website.
Defendant iLIKEBUS is a Delaware corporation with its
principal place of business in Virginia.
iLIKEBUS and resides in Maryland.

Zou is a director of

Wei, the Chief Executive

Officer of iLIKEBUS, resides in Virginia.

Collectively,

defendants operate the website www.iLIKEBUS.com.
Ivymedia filed suit against defendants in May, 2015
claiming, inter alia, copyright infringement under 17 U.S.C.
§ 501, unfair competition in violation of the Lanham Act, 15
U.S.C. § 1125(a), and unjust enrichment.

Defendants responded

the following month with a motion to dismiss.

This Court

dismissed all of plaintiff’s claims with the exception of the
copyright infringement claim.

Defendants answered in due course

and the Court convened a scheduling conference and set a
deadline of January 31, 2016 for amended pleadings.
In September, 2016 the parties attempted to arbitrate their
dispute.

After arbitration failed, plaintiff moved to amend its

complaint.

Defendants opposed that motion and moved to strike

plaintiff’s reply to their opposition.

Later that same month,

defendants filed a motion for summary judgment.

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This memorandum

and order addresses plaintiff’s motion to amend and defendants’
motion to strike.
II.

Motion to Amend the Complaint
A. Legal Standard

After a court has set a deadline for amending the pleadings
at a scheduling conference, the “liberal amendment policy” in
Fed. R. Civ. P. 15 gives way to the “more stringent good cause
standard” in Fed. R. Civ. P. 16(b). O'Connell v. Hyatt Hotels of
Puerto Rico, 357 F.3d 152, 154 (1st Cir. 2004) (internal
quotations omitted).

In evaluating whether a party has shown

good cause, courts consider 1) “the diligence of the party
seeking the amendment” and 2) whether the opposing party would
be prejudiced if modification were allowed. Id. at 155.
“[I]ndifference by the moving party” weighs against a showing of
good cause. Id. (internal quotations omitted).
The rationale behind the good cause standard is that it
provides courts with the “devices necessary to manage [their]
docket[s]” and facilitates “effective case management.” Id.
(internal quotations omitted).

Trial courts are granted “great

latitude in carrying out case-management functions.” Jones v.
Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993).

Courts

often consider efficiency and case management when deciding a
motion to amend. See Smith & Nephew, Inc. v. Surgical Sols.,
Inc., 353 F. Supp. 2d 135, 138 (D. Mass. 2004); Abbott Labs. v.
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Inverness Med. Tech., No. 98-cv-10674-GAO, 2002 WL 1906533, at
*3 (D. Mass. Aug. 19, 2002).
B. Application
Plaintiff moves to amend the complaint by adding the
registration number of its 2005 copyright, TX 6-211-055.

It

also seeks to add that it holds another copyright, registration
No. TXu 1-954-672, which is a supplement to its 2005 copyright
that became effective in July, 2015.

In support of its motion,

plaintiff draws the Court’s attention to emails showing that it
waited to file the motion to amend because of negotiations with
defense counsel and that defense counsel was aware of both
registrations by at least June, 2016.

Defendants respond that

plaintiff has failed to show good cause and that defendants
would be prejudiced if the Court allowed plaintiff’s motion.
Plaintiff has met the good cause standard for amending the
complaint.

The emails demonstrate that, rather than showing

indifference, plaintiff delayed filing its motion to amend
because defendants’ counsel requested that it wait until
arbitration was completed. See O'Connell, 357 F.3d at 155.
After the arbitration failed, plaintiff’s counsel attempted to
obtain defense counsel’s assent to the motion before filing.

In

light of the pending arbitration and the repeated attempts to
accommodate defendants’ counsel, plaintiff’s actions demonstrate
that it diligently pursued the amendment.
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As for the second consideration, defendants will not be
prejudiced if the amendment is allowed.

Defendants’ counsel

have long been aware of the copyrights at issue.

Furthermore,

the amendments are minor and do not change the sole remaining
count alleged, copyright violation. See Villanueva v. United
States, 662 F.3d 124, 127 (1st Cir. 2011).

The Court will also

briefly extend the deadlines in this case to accommodate the
amended complaint.

Thus, allowing the modification will not

prejudice defendants.
Finally, allowing the motion to amend will lead to the most
efficient resolution of the controversy between the parties.

If

plaintiff is not permitted to amend the complaint, it may file a
second case to reflect its supplemental copyright claim.
Resolving the alleged copyright infringement with respect to
both the original and supplemental copyright is the most
efficient use of this Court’s resources. See Smith & Nephew,
Inc., 353 F. Supp. 2d at 138; Abbott Labs., 2002 WL 1906533, at
*3.
The effort to accommodate opposing counsel, the relatively
minor nature of the amendment and docket management concerns
together provide good cause to allow amendment of the complaint.
Accordingly, the Court will allow plaintiff’s motion to amend.

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III. Motion to Strike
Defendants move to strike plaintiff’s reply brief with
respect to the motion to amend on grounds that plaintiff filed
it without requesting leave of Court. LR, D. Mass 7.1.
Sanctions are not appropriate and the motion to strike will be
denied because both parties have filed replies without
requesting leave.

The parties are, however, cautioned to

request leave before filing reply briefs in the future.

ORDER

In accordance with the foregoing, plaintiff’s motion to
amend the complaint (Docket No. 80) is ALLOWED and defendants’
motion to strike (Docket No. 88) is DENIED.
The current pre-trial schedule is modified as follows:
02/28/2017

Additional discovery on the amendments to
the complaint shall be completed;

03/14/2017

Supplement to defendants’ memorandum in
support of their motion for summary judgment
due (10 pages or less);

03/21/2017

Supplement to plaintiff’s opposition to
summary judgment motion due (10 pages or
less);

05/09/2017

Motions in limine due;

05/16/2017

Responses to in limine motions, lists of
witnesses and exhibits, due;

05/24/2017

Final pretrial conference;
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05/30/2017

Jury trial commences

So ordered.

/s/ Nathaniel M. Gorton
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Nathaniel M. Gorton
United States District Judge
Dated January 11, 2017

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