Trust Safe Pay, LLC et al v. Dynamic Diet, LLC et al

Filing 96

Magistrate Judge M. Page Kelley: ORDER entered. MEMORANDUM AND ORDER: "For all of the reasons stated, Defendants' Motion to Dismiss for Failure to State a Claim (# 52 ) is ALLOWED as to Plaintiff's Copyright Claims, (# 72 , Counts I-I II), which are DISMISSED with prejudice. Plaintiff's remaining claims, (# 72 , Counts IV-VI), are hereby DISMISSED without prejudice. Defendants' request for attorney fees (# 79 at 28-29) is DENIED. Plaintiff's request for attorney& #039;s fees in its opposition to the motion to dismiss (# 83 at 25-26) is also DENIED. The documents attached to Plaintiffs Request for Judicial Notice (# 84 ) have beenconsidered as discussed above. Otherwise, the Request is DENIED."(Belmont, Kellyann)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS

TRUST SAFE PAY, LLC,
Plaintiff,

CIVIL ACTION NO. 17-10166-MPK1

v.

DYNAMIC DIET, LLC, KOSTAS
VADOKLIS, and VILMA VADOKLIS,
Defendants.

MEMORANDUM AND ORDER ON DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S
SECOND AMENDED (CORRECTED) COMPLAINT (#78).
KELLEY, U.S.M.J.
I. Introduction.
Defendants have moved to dismiss plaintiff’s claims in the Second Amended (Corrected)
Complaint (SACC) (#72),2 the fourth complaint plaintiff has filed since the initiation of this
action in California in 2016. In its opinion granting defendants’ previous motion to dismiss, this
court outlined various deficiencies in plaintiff’s pleading and gave plaintiff the opportunity to re-

1

On March 21, 2017, with the parties’ consent, this case was reassigned to the undersigned for
all purposes, including trial and the entry of judgment, pursuant to 28 U.S.C. § 636(c). (#42.)

2

Plaintiff filed a Second Amended Complaint on October 6, 2017 (#71), the deadline set by the
court (#70). Four days later, Plaintiff filed a “corrected” version, the SACC. (#72.) The bodies
and attachments of the two versions appear to be different. Although plaintiff, oddly, continues
to cite #71 for certain propositions (see, e.g., #83 at 13), the court considers the SACC (#72) the
operative complaint.

plead, with certain limitations. (#64 at 18 n.20 (“Any amendment shall be limited to the extent
necessary to comply with the deficiencies as identified in this Order. No further amendment is
allowed.”).) Plaintiff has re-pled its case, but has not remedied the deficiencies.3 Critically,
plaintiff has failed to state a claim for direct or indirect violation of copyright, the only federal
claims present. The court, therefore, GRANTS defendants’ motion to dismiss. The court
DISMISSES the copyright claims, (#72, Counts I-III), with prejudice, and the remaining state
law claims, (#72, Counts IV-VI), without prejudice.
II. The Facts.
The factual background is set forth in the court’s prior opinion. See, #64 at 2-5. This
litigation “stems from a friendship gone awry between plaintiff’s principal, Evelina
Juchneviciute, her partner and co-member of Trust Safe, Darius Kersulis, and the individual
defendants. The problems allegedly resulted in the individual defendants surreptitiously stealing
proprietary information relating to [diet product business] Trust Safe, which information was
then used to open and operate a competing company,” Dynamic Diet LLC (DDL). Id. at 2. The
claimed stolen information included an algorithm4 that allowed plaintiff to increase the
efficiency of its advertising by using identified search words, a “Keyword List,” to only advertise
to individuals who were likely to purchase plaintiff’s products. (#72 ¶¶ 15-25.)
Of particular relevance to the jurisdictional determination here, plaintiff is “a
Massachusetts limited liability company with its principal place of business in Idaho.” Id. ¶ 1.
3

The court has concluded that oral argument is not necessary to resolve this motion. Nothing
plaintiff could argue in a proposed sur-reply would change the result in this matter. See #93.
4

The details of the algorithm are explained more specifically in the SACC than in the prior
complaint. However, where plaintiff does not claim that the algorithm itself was copyrighted, the
algorithm is not relevant to the court’s analysis. The alleged theft of the algorithm forms the
basis of the allegation of, among other claims, misappropriation of trade secrets, which will be
for the Massachusetts state court to evaluate.
2

“Plaintiff is informed and believes, and thereon alleges that Kostas and Vilma are individuals
residing in Nantucket, Massachusetts.” Id. ¶ 2 “DDL is a corporation organized and existing
under the laws of the Commonwealth of Massachusetts, having a principal place of business at 7
West Creek Road, Nantucket, Massachusetts.” Id. ¶ 3.
According to plaintiff’s SACC, DDL “owns the website DynamicDiet.com/ (the ‘Site’)
through which DDL sells and promotes products that directly competes [sic] with Plaintiff’s
product.” Id. ¶ 52. DDL also owns a second “website DietInsight.org that purports to review and
compare competing diet supplements in order to assist consumers with deciding which diet
supplements to purchase. [. . .]” Id. ¶ 53. “Darius is the owner and operator of the diet review
website ConsumersCompare.org, which contains text that is subject to a copyright application
submitted to the U.S. Copyright Office (the “CC Work”).” Id. ¶ 55. Darius assigned ownership
in the CC work to plaintiff. Id. ¶ 56. “Evelina is the author and claimant of text contained on
Plaintiff’s website [sic] PureSlim1000.com and PS1000.com, which is the subject of a copyright
application filed with the U.S. Copyright Office (the “PS Work”).” Id. ¶ 57. Evelina assigned
ownership in the PS Work to plaintiff. Id. ¶ 58. “In or around December of 2016, Plaintiff filed
applications for registration for the PS Work and the CC Work (collectively “Plaintiff’s Works”).
See Copyright Office Emails, attached as Exhibit A hereto.” Id. ¶ 59 (emphasis in original).
Plaintiff alleges further that, “[u]pon information and belief, in early 2015, for a
commercial purpose, DDL knowingly, wrongfully and without permission copied and used a
portion of the CC Work as demonstrated by Exhibit B attached hereto (comparing Plaintiff’s
[website copies] pages 1-2 with DDL’s [website copies] pages 3-4).” Id. ¶ 60 (emphasis in
original). Plaintiff includes additional exhibits as well, purporting to compare portions of
plaintiff’s and DDL’s websites to demonstrate alleged copying of CC and PS Work. Id.¶¶ 61-68,

3

Exs. C-J. “Without authorization, the DDL used, republished, distributed and displayed to the
public worldwide Plaintiff’s Works on DDL’s Websites. DDL used Plaintiff’s Works with the
pre-existing knowledge that such original expression was owned by Plaintiff.” Id. ¶¶ 69- 70.
Based on these allegations, plaintiff claims defendant DDL violated plaintiff’s copyright, and the
individual defendants engaged in contributory and vicarious infringement. Id. Counts I-III.
Defendants’ motion to dismiss the SACC for failure to state a claim is presently before
the court. (##78, 79.) Plaintiff opposed the motion (#83) and objected to it (#85), and defendants
replied (#90).5
III. Standard of Review.
The appropriate standard of review was stated in the court’s prior opinion:
A Rule 12(b)(6) motion to dismiss challenges a party’s complaint for failing to
state a claim. In deciding such a motion, a court must “‘accept as true all wellpleaded facts set forth in the complaint and draw all reasonable inferences
therefrom in the pleader’s favor.’” Haley v. City of Boston, 657 F.3d 39, 46 (1st
Cir. 2011) (quoting Artuso v. Vertex Pharm., Inc., 637 F.3d 1, 5 (1st Cir. 2011)).
When considering a motion to dismiss, a court “may augment these facts and
inferences with data points gleaned from documents incorporated by reference
into the complaint, matters of public record, and facts susceptible to judicial
notice.” Haley, 657 F.3d at 46 (citing In re Colonial Mortg. Bankers Corp., 324
F.3d 12, 15 (1st Cir. 2003)).
In order to survive a motion to dismiss under Rule 12(b)(6), the plaintiff must
provide “enough facts to state a claim to relief that is plausible on its face.” See
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The “obligation to provide
the grounds of [the plaintiff’s] entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements of a cause of action will
not do.” Id. at 555 (internal quotation marks and alteration omitted). The
“[f]actual allegations must be enough to raise a right to relief above the
speculative level,” and to cross the “line from conceivable to plausible.” Id. at
555, 570.

5

Plaintiff also filed a Request for Judicial Notice (#84), to which defendants objected (#89). The
court has reviewed the voluminous filings and exhibits and does not require oral argument on
any motion.
4

“A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for
the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing
Twombly, 550 U.S. at 556). However, the court is “‘not bound to accept as true a
legal conclusion couched as a factual allegation.’” Id. at 678 (quoting Twombly,
550 U.S. at 555). Simply put, the court should assume that well-pleaded facts are
genuine and then determine whether such facts state a plausible claim for relief.
Id. at 679.
(#64 at 5-6.)

IV. Discussion.6
A. Copyright Infringement – Count I.

“To establish copyright infringement under the Copyright Act, ‘two elements must be
proven: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work

6

Plaintiff continues to levy allegations against “Defendants,” when sometimes apparently
meaning individual defendants. See, e.g., #72 ¶ 46 (“In January 2015, Defendants organized
DDL [. . . .]”).
Plaintiff also continues to fail to acknowledge the implications of the fact that Dynamic Diet is
an LLC, despite the court’s prior instruction. See #64 at 6 n.8 (“Should Trust Safe choose to file
a repleader, the issues concerning Dynamic’s LLC status and the lack of specificity in the
amended complaint’s allegations must be addressed. Trust Safe’s bald assertion that “Defendants
. . . conspired and . . . act[ed] pursuant to said conspiracy” (#48 ¶ 6), does not ameliorate these
problems.”). Rather, plaintiff again attempts to avoid distinguishing among defendants:
Upon information and belief, each Defendant was the agent, servant,
representative and/or employee of each of the other Defendants, and that in doing
the things hereinafter alleged, each Defendant was acting within the course and
scope of the Defendant’s authority, with the permission, knowledge, consent and
ratification of each of the other Defendants.
Upon information and belief Defendants, and each of them, conspired and agreed
among themselves to the acts complained of herein and were, in doing the acts
complained of herein, acting pursuant to said conspiracy, and that each of the
Defendants sued herein is jointly and severally responsible and liable to Plaintiff
for the damages alleged herein.
Id. ¶¶ 8-9. Given this court’s decision on plaintiff’s copyright claims, the court need not address
whether the allegations against each defendant are sufficient, or evaluate the allegations of
conspiracy.
5

that are original.’” Johnson v. Gordon, 409 F.3d 12, 17 (1st Cir. 2005) (quoting Feist Publ’ns,
Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Plaintiff has not pled sufficiently either
element.
1. Ownership of a Valid Copyright.
Subsection (A) of 17 U.S.C. § 411 states that “no civil action for infringement of the
copyright in any United States work shall be instituted until preregistration or registration of the
copyright claim has been made in accordance with this title.” Plaintiff does not claim to own any
registered copyright. See #83 at 13-14 (“Plaintiff has three (3) copyright applications currently
before the Copyright Office.”). The question is, then, whether plaintiff has sufficiently pled
preregistration. Regarding this issue, the court previously stated:
The amended complaint asserts that “Plaintiff is the assignee of three (3)
applications for copyright registrations in works of visual art, which include[]
various web-pages of Plaintiff’s websites, application numbers 1-3998164856; 13998164250; 1-4018230311 . . . .” (#48 ¶ 41.) Trust Safe takes the position that
this allegation is sufficient to pass muster under § 411. See #59 at 10. While the
court need not decide the issue at this juncture – plaintiff’s claim fails on other
grounds, see infra Section 2 – it notes that a plaintiff relying on the “application
approach”7 must demonstrate that it “sent the requisite application (together
with deposit and fee) to the Copyright Office.” Alicea v. Machete Music, 744
F.3d 773, 779 (1st Cir. 2014) (internal citation omitted); see also Concordia
Partners, LLC v. Pick, No. 2:13-CV-415-GZS, 2013 WL 6817627, at *2 (D. Me.
Dec. 23, 2013) (“As Defendants acknowledge, Plaintiff has alleged that they have
applied for copyright registration and satisfied all of the necessary formalities to
obtain the registration certificates.”). Contrary to Trust Safe’s assertion that such
information is “readily verifi[able] . . . through the Copyright Office website[,]”
(#59 at 10), should plaintiff choose to replead its copyright infringement
claim, such a showing must be made in the repleader or via documents
attached to it.

7

The application approach to § 411 deems the registration requirement satisfied “at the time the
copyright holder’s application is received by the Copyright Office.” Alicea v. Machete Music,
744 F.3d 773, 779 (1st Cir. 2014) (declining to decide “whether the application approach or the
registration approach should govern, as we conclude that the defendants were entitled to
summary judgment under either approach”).
6

(#64 at 7-8 (emphasis added).)
Despite the court’s instruction that plaintiff show it complied with all the application
requirements, plaintiff fails to plead that it submitted a complete application, paid the requisite
fee, and deposited the allegedly-protected materials,8 much less that it had done so prior to
initiating this litigation; nor does plaintiff provide documents sufficient to satisfy the
preregistration requirement. An incomplete application does not satisfy the preregistration
requirement for a copyright action. The First Circuit has made this clear. Alicea, 744 F.3d at 780
(affirming grant of summary judgment for defendants where “[m]ore than two years after filing
suit, the plaintiffs still had not established that their applications to the Copyright Office were
complete”). The Alicea court made note of the fact that email correspondence indicated that the
Copyright Office was still attempting to determine whether the deposited materials were
sufficient in September 22, 2011, and “[o]ver four months later, at a hearing before the district
court on the defendants’ summary judgment motion, no progress appeared to have been made [. .
. .]” Id. at 779.
The Alicea court cited Geoscan, Inc. of Texas v. Geotrace Techs., Inc., 226 F.3d 387, 393
(5th Cir. 2000). In Geoscan, the court affirmed the district court’s grant of summary judgment to
defendant on plaintiff’s copyright claims where:
[W]e hold that at the time of the filing of this suit in July 1998, although Scan had
filed an application, paid a fee, and made a deposit with the Copyright Office, the
deposit was not a complete copy of the original source code, thus Scan had not
fulfilled all the statutory formalities necessary to register its copyright and have
“ownership” in its software for the purposes of a copyright infringement claim.

8

Plaintiff’s “Request for Judicial Notice,” (#74), claims that “[t]he fees were paid and deposits
of the artworks were provided to the Copyright Office[.]” Id. at 2. This conclusory statement is
not supported by any documentation or copy of alleged deposited artworks. It is further belied by
the attachments to the SACC, which demonstrate that the deposit of materials was not complete
as of September 2016.
7

Id. Other courts are in agreement that only a complete application satisfies the registration
requirement. See, e.g., Sungard Data Sys., Inc. v. Edward S. Devlin, No. 95-3109, 1995 WL
447644, at *4 (E.D. Pa. July 28, 1995) (“Here, SunGard provided the court with a copyright
application purportedly registered with the Copyright Office. [. . .] However, there is nothing on
the application proving that the Copyright Office received the application, that the required
number of copies of the work were filed, or that the fee was filed in proper form. [. . .]”); cf.
Gable-Leigh, Inc. v. N. Am. Miss, No. CV 01-01019 MMM(SHX), 2001 WL 521695, at *4 (C.D.
Cal. Apr. 13, 2001) (finding preregistration requirement met where plaintiff “provided copies of
the materials deposited, the overnight mail receipt, and the check for the registration fee
endorsed by the Register of Copyrights” and “the Copyright Office received her copyright
registration” before the lawsuit commenced).
Plaintiff does claim that “[i]n or around December of 2016, Plaintiff filed applications for
registration for the PS Work and the CC Work (collectively “Plaintiff’s Works”).” (#72 ¶ 59.)
This would arguably be too late to form the basis of copyright claims in this case. Plaintiff filed
suit on October 24, 2016 (#1.) Under 17 U.S.C. § 411 (A), “no civil action for infringement of
the copyright in any United States work shall be instituted until preregistration or registration
of the copyright claim has been made in accordance with this title” (emphasis added).
In the opposition to defendants’ motion to dismiss, plaintiff claims “the dates referenced
in the SAC[9] regarding the date of the copyrights [sic] applications was made in error; the dates
of the applications were prior to this litigation as they were done in September.” (#83 at 13.)
Concurrent with its opposition, plaintiff filed a “Request for Judicial Notice of confirmations of

9

In its briefing, plaintiff refers to the Second Amended Complaint without clarifying whether the
reference is to the corrected version. The court will assume that it is.
8

the filing of copyright applications.” (#84.) This Request proves too little too late, coming well
after the deadline for amending the complaint and consisting of evidence insufficient to bolster
the SACC.
The Request attaches what purports to be “copyright application confirmations” dated
September 2016; the same documents are attached as exhibits to Evelina’s affidavit in support of
plaintiff’s opposition (#83-1).10 The source of these “confirmations” is unclear. It is not apparent
whether they are copies of mailed materials, printouts from a public or private website, or
something else. As defendants point out, the copies are not certified. (#89 at 3.) These
“confirmations” do not establish that any fees were paid, or which materials were submitted for
copyright protection.11 They contain no attachments. The “confirmations” are silent as to the
content of the deposited material and, therefore, as to the completeness of the applications.
Furthermore, as discussed below, plaintiff’s other documents establish that, even if applications
were submitted in September 2016, they were incomplete.
Exhibit A to the SACC consists of emails between Evelina and the United States
Copyright Office, dated between December 5, 2016 and May 31, 2017. (#72-1.) 12 The emails
discuss what kind of content is copyrightable, and Evelina’s submission of materials. Id. It is

10

Evelina’s affidavit states that the copyright applications “have been assigned to Trust Safe
Play [sic], LLC” (#83-1 at 1), but does not attach copies of any assignment or give any details as
to the date or form of such assignment. The Request states that the “applications are dated
September 2015,” #84 at 2, but this is apparently a typo as the documents attached are plainly
dated September 2016.
11

The Request asks the court to take notice that “[t]he fees were paid and deposits of the
artworks were provided to the Copyright Office” but does not give any support for these
contentions other than the “receipts.”

12

The December 5, 2016 email is from the Copyright Office to Evelina, and appears to be
replying to a message from Evelina, which is not included in the Exhibit. Id. at 8.
9

clear that, as of December 2016, Evelina had not submitted a complete copy of the website
materials she intended to copyright to the Copyright Office. Id. at 8, email from Evelina to
Copyright Office (Dec. 5, 2016) (“I will work on all this and submit it as soon as I have it put
together.”) (emphasis added); id. at 7, email from Evelina to Copyright Office (Dec. 8, 2016) (“I
am trying to get everything organized and looking through deposited materials that I submitted to
Legal Zoom I want to make sure everything else was received. It was a lot of back and forth
depositing, them rejecting some materials and at the end they do not let you know what exactly
they are depositing.”); id. at 7, email from Copyright Office to Evelina (Dec. 9, 2016) (“So I
should wait until I hear back from you about the correct copy?”); id. at 6, email from Evelina to
Copyright Office (Dec. 30, 2016) (“[T]hank you for your patience, here is a link to upload the
missing content for the Pureslim1000 site for copyright registration.”) (emphasis added). At
least as of March 2017, the Copyright Office was still attempting to confirm the content of
Evelina’s submission. See id. at 2, email from Copyright Office to Evelina (Mar. 24, 2017) (“To
sum up, we will register the following[. . . .] Do you agree to all of that?”).
An incomplete application is insufficient. As the court stated in Lafarga v. Magazine,
A complete copyright application consists of three components: a deposit (i.e., a
copy of the copyrightable work), an application, and a fee. [. . .] Here, Mr.
Lafarga pleads that he mailed one check along with the application. [. . .] He
makes no mention, however, of depositing the copyrighted work, which is
required by the statute. [. . .] [T]he Court finds that Mr. Lafarga did not plead
either a completed application or receipt of that application, and thereby did not
plead copyright ownership.
No. SACV111501DOCMLGX, 2014 WL 12573551, at *3-4 (C.D. Cal. July 18, 2014) (internal
citations omitted). The same is true here. Plaintiff’s own documentary evidence makes clear that
any application received by the Copyright Office prior to the filing of this litigation, if such
application was received, was incomplete. Plaintiff has not shown that a complete copyright

10

application has ever been received by the Copyright Office. Plaintiff does not satisfy the
preregistration or registration requirements, and therefore fails to state a claim for copyright
infringement. See Alicea, 744 F.3d at 779.
2. Copying of Constituent Elements.
The mere allegation that a defendant copied the work of a plaintiff is insufficient, on its
own, to establish a claim for copyright infringement. See Johnson, 409 F. 3d at 18 (“copying
does not invariably constitute copyright infringement”) (citing Feist, 499 U.S. at 361).
To show actionable copying “involves two steps: (a) that the defendant actually
copied the work as a factual matter, . . . and (b) that the defendant’s copying of
the copyrighted material was so extensive that it rendered the infringing and
copyrighted works ‘substantially similar.”’ Situation Mgmt. Sys., Inc. v. Asp.
Consulting LLC, 560 F.3d 53, 58 (1st Cir. 2009) (citation and quotation marks
omitted). “The plaintiff bears the burden of proof as to both elements.” Johnson v.
Gordon, 409 F.3d 12, 17 (1st Cir. 2005).
McGee v. Benjamin, No. CIV.A. 08-11818-DPW, 2012 WL 959377, at *5 (D. Mass. Mar. 20,
2012) (alteration in original); Calden v. Arnold Worldwide LLC, No. CIV.A. 12-10874-FDS,
2012 WL 5964576, at *4 (D. Mass. Nov. 27, 2012).
The court cannot analyze plaintiff’s contention of actual copying because it unclear
which, if any, portions of plaintiff’s websites were or are subject to copyright protection.
Therefore, while plaintiff, via extensive (sometimes challenging to decipher) attachments to the
SACC, attempts to show defendants’ copied portions of plaintiff’s websites, plaintiff has not
established that these portions are protected. Moreover, it is unclear, from plaintiff’s exhibits,
whether the items highlighted make the websites “substantially similar.” Johnson, 409 F.3d at 18
(“The substantial similarity requirement focuses holistically on the works in question and entails
proof that the copying was so extensive that it rendered the works so similar that the later work
represented a wrongful appropriation of expression.”) (citations omitted).

11

B. Contributory and Vicarious Infringement – Counts II and III.
As explained above, Trust Safe fails to make a prima facie showing of direct copyright
infringement by defendants: it is unclear whether plaintiff has satisfied the preregistration
requirement; Trust Safe has not identified adequately the protected material or defendants’
infringement of it; and the court is unable to determine whether there is substantial similarity
between the parties’ materials. Given these deficiencies in the SACC, Trust Safe’s claims of
secondary liability crumble. See Greenspan v. Random House, Inc., 859 F. Supp. 2d 206, 219 (D.
Mass. 2012), aff’d sub nom. Greenspan v. Random House, Inc., No. 12-1594, 2012 WL 5188792
(1st Cir. Oct. 16, 2012) (“Absent an actionable claim for direct copyright infringement, the
claims for contributory or vicarious infringement must also fail.”) (citing Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 930–31 (2005)).
C. Remaining Claims are State Law Claims.
Plaintiff argues that the court has jurisdiction over the claims under federal law, which
would be federal copyright law, and supplemental jurisdiction over the state law claims. (#72 ¶ 4
(citing “28 U.S.C. §§ 1331 and 1367”).) Having dismissed the copyright claims in the case, the
court must reassess its jurisdiction.13 The First Circuit has recently addressed the court’s authority
to exercise supplemental jurisdiction over remaining state law claims when all federal claims have
been dismissed:
[T]he Supreme Court has instructed that “in the usual case in which all federal-law
claims are eliminated before trial, the balance of factors to be considered under the
pendent jurisdiction doctrine—judicial economy, convenience, fairness, and
comity—will point toward declining to exercise jurisdiction over the remaining

13

There is no basis for diversity jurisdiction here. See 28 U.S.C. § 1332. Both plaintiff and
defendants are Massachusetts citizens; plaintiff is incorporated in Massachusetts, the individual
defendants reside in Massachusetts, and defendant Dynamic Diet is a Massachusetts LLC. See
#72 ¶¶ 1-3.
12

state-law claims.” Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7, 108 S.
Ct. 614, 98 L.Ed.2d 720 (1988); see also 28 U.S.C. § 1367(c)(3).
In accord with that guidance, moreover, we have held that, when all federal claims
have been dismissed, it is an abuse of discretion for a district court to retain
jurisdiction over the remaining pendent state law claims unless doing so would
serve “the interests of fairness, judicial economy, convenience, and comity.” See
Desjardins v. Willard, 777 F.3d 43, 45-46 (1st Cir. 2015) (citation omitted); RiveraDíaz v. Humana Ins. of Puerto Rico, Inc., 748 F.3d 387, 392 (1st Cir. 2014). We
have also held that, under this standard, it can be an abuse of discretion—if no
federal claim remains—for a district court to retain jurisdiction over a pendent state
law claim when that state law claim presents a substantial question of state law that
is better addressed by the state courts. Desjardins, 777 F.3d at 45-46.
Wilber v. Curtis, 872 F.3d 15, 23 (1st Cir. 2017). See also, Miller v. Town of Wenham
Massachusetts, 833 F.3d 46, 56 (1st Cir. 2016); Desjardins v. Willard, 777 F.3d 43, 45–46 (1st
Cir. 2015) (vacating dismissal of state claims and remanding them to state court where “the
federal claims that formed the basis for removal here have been dismissed ‘well before trial,’ and
the remaining state law claims . . . “raise substantial questions of state law that are best resolved
in state court’”) (citation omitted).
Despite lengthy motion practice, this case is in its procedural infancy. Discovery has not
commenced; it is “well before trial.” Moreover, plaintiff’s claims depend on an interpretation of
state law as to misappropriation of trade secrets, fraud, and unfair and deceptive business
practices under Massachusetts General Laws chapter 93A. This interpretation is appropriately
left to the state court. Therefore, the court declines to exercise jurisdiction over plaintiff’s state
law claims, Counts IV-VI of the SACC, and DISMISSES the claims without prejudice.

13

V. Conclusion.
For all of the reasons stated, Defendants’ Motion to Dismiss for Failure to State a Claim
(#52) is ALLOWED as to Plaintiff’s Copyright Claims, (#72, Counts I-III), which are
DISMISSED with prejudice.14 Plaintiff’s remaining claims, (#72, Counts IV-VI), are hereby
DISMISSED without prejudice. Defendants’ request for attorney fees (#79 at 28-29) is DENIED.
Plaintiff’s request for attorney’s fees in its opposition to the motion to dismiss (#83 at 25-26) is
also DENIED. The documents attached to Plaintiff’s Request for Judicial Notice (#84) have been
considered as discussed above. Otherwise, the Request is DENIED.

July 27, 2018

/s / M. Page Kelley
M. Page Kelley
United States Magistrate Judge

14

The court’s prior order stated that “amendment shall be limited to the extent necessary to
comply with the deficiencies as identified in this Order. No further amendment is allowed.” (#64
at 18 n.20.)
14