Christians of California, Inc. v. Clive Christian New York, LLP et al

Filing 166

MEMORANDUM AND ORDER re: 139 Notice (Other), filed by Christians of California, Inc. For the foregoing reasons, the plaintiff's motion for reconsideration (Docket no. 139) is granted. The Second Amended Complaint shall be filed within one week of the date of this order. (Signed by Magistrate Judge James C. Francis on 7/18/2014) Copies Mailed By Chambers. (djc) Modified on 7/18/2014 (djc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - -:
CHRISTIANS OF CALIFORNIA, INC.,
: 13 Civ. 0275 (KBF) (JCF)
a Colorado Corporation,
:
:
MEMORANDUM
:
AND ORDER
Plaintiff,
:
:
- against :
:
CLIVE CHRISTIAN NEW YORK, LLP, a
:
Foreign Limited Liability Company :
d/b/a CLIVE CHRISTIAN NYC, LLC,
:
CLIVE CHRISTIAN FURNITURE, LTD,
:
a Foreign Private Limited Company, :
and CLIVE CHRISTIAN, an individual,:
:
Defendants.
:
- - - - - - - - - - - - - - - - - -:
CLIVE CHRISTIAN NEW YORK, LLP, a
:
Foreign Limited Liability Company :
d/b/a CLIVE CHRISTIAN NYC, LLC,
:
CLIVE CHRISTIAN FURNITURE, LTD,
:
a Foreign Private Limited Company, :
and CLIVE CHRISTIAN, an individual,:
:
Counter Claimants, :
:
- against :
:
CHRISTIANS OF CALIFORNIA, INC.,
:
a Colorado Corporation,
:
:
Counter Defendant. :
- - - - - - - - - - - - - - - - - -:
JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE
This case arises out of a business dispute between the
plaintiff, Christians of California, Inc. (“CCI”), and defendants
Clive Christian New York, LLP, Clive Christian Furniture, Ltd, and

1

Clive Christian.

I denied the plaintiff’s motion for leave to

amend the Complaint to add a claim for copyright infringement
because, at that time, CCI did not have a registered copyright and
the

motion

was

thus

futile.

The

plaintiff

now

moves

for

reconsideration of that decision; the defendants oppose the motion.
For the following reasons, the motion to reconsider is granted and
the plaintiff’s motion for leave to amend is granted.
Background
The background and procedural history of this case were
discussed in the memorandum and order denying the motion to amend.
Christians of California, Inc. v. Clive Christian New York, LLP,
No. 13 Civ. 275, 2014 WL 2465273, at *1-2 (S.D.N.Y. May 30, 2014).
Briefly, the plaintiff alleged that the defendants utilized its
architectural and design plans (the “Zaragoza Plans”) in order to
steal a lucrative client, ultimately forcing the plaintiff out of
business.

The plaintiff claimed, in a Proposed Second Amended

Complaint (“Proposed 2d Am. Compl.”), that it had applied for a
copyright on the project plans and that the defendants’ actions
infringed its intellectual property rights. At the time the motion
for leave to amend the Complaint was filed, however, the plaintiff
claimed only that it “own[ed] a valid copyright to the Zaragoza
Plans that is (or will shortly be) registered” and acknowledged
that while it had “applied for and expect[ed] to shortly receive
2

certification of a valid copyright,” it had not received a final
determination

on

its

application

from

the

Copyright

Office.

(Memorandum of Law in Support of Plaintiff’s Motion for Leave to
File Second Amended Complaint and Jury Demand and Request for
Injunctive Relief (“Pl. Memo. Amend.”) at 4, 7).

I denied the

motion to amend on the ground that a party cannot assert an
infringement claim on the basis of a copyright that has not yet
been issued.
On May 27, 2014, plaintiff’s counsel received from the U.S.
Copyright Office the Certificate of Registration for the Zaragoza
Plans, effective November 8, 2013.

(Memorandum of Law in Support

of Plaintiff’s Motion for Reconsideration of the Court’s Order
Denying Without Prejudice Plaintiff’s Motion for Leave to File its
Second Amended Complaint and Jury Demand and Request for Injunctive
Relief (“Pl. Memo.”) at 3; Certificate of Registration, attached as
Exh. B to Pl. Memo.).

Plaintiff’s counsel immediately shared that

Certificate with opposing counsel, but did not inform the Court
prior to May 30, 2014, when I issued the Memorandum and Order
denying the motion for leave to amend.

On June 3, 2014, the

plaintiff filed the instant motion for reconsideration in light of
the newly certified copyright registration.1

1

This case was transferred to the Honorable Katherine
Forrest, U.S.D.J., on May 29, 2014, who then vacated the order of
3

Discussion
A.

Motion for Reconsideration
1.

Legal Standard

Motions for reconsideration are governed by Local Civil Rule
6.3 of the Southern District of New York (“Local Rule 6.3”) and are
committed

“to

the

sound

discretion

of

the

district

court.”2

Mendell ex rel. Viacom, Inc. v. Gollust, 909 F.2d 724, 731 (2d Cir.
1990).

That rule permits a party to submit “a memorandum setting

forth concisely the matters . . . which counsel believes the court
has overlooked” that merit reconsideration.

Local Rule 6.3.

A motion for reconsideration “is generally not favored and is
properly granted only upon a showing of exceptional circumstances.”
Marrero Pichardo v. Ashcroft, 374 F.3d 46, 55 (2d Cir. 2004)
(internal

quotation

marks

omitted);

see

also

In

re

Health

Management Systems, Inc. Securities Litigation, 113 F. Supp. 2d
613, 614 (S.D.N.Y. 2000) (“[A motion for reconsideration is an]
extraordinary remedy to be employed sparingly in the interests of
finality and conservation of scarce judicial resources.” (internal
quotation marks omitted)).

The standard for such motions is thus

reference except as to a pending motion for a protective order and
this motion for reconsideration.
2

Although the plaintiff relies upon Rule 59(e) of the Federal
Rules of Civil Procedure, the standard is identical to that of
Local Rule 6.3. See, e.g, Arnold v. Geary, 981 F. Supp. 2d 266,
268-69 (S.D.N.Y. 2013).
4

“strict, and reconsideration will generally be denied unless the
moving party can point to controlling decisions or data that the
court overlooked -- matters, in other words, that might reasonably
be expected to alter the conclusion reached by the court.” Shrader
v. CSX Transportation Inc., 70 F.3d 255, 257 (2d Cir. 1995) (“[A]
motion to reconsider should not be granted where the moving party
seeks solely to relitigate an issue already decided.”); accord In
re Harbinger Capital Partners Funds Investor Litigation, No. 12
Civ. 1244, 2013 WL 7121186, at *2 (S.D.N.Y. Dec. 16, 2013); see
also Nakshin v. Holder, 360 F. App’x 192, 193 (2d Cir. 2010) (“The
threshold
high.”).

for

prevailing

on

a

motion

for

reconsideration

is

A motion to reconsider “should be granted only when the

[proponent]

identifies

an

intervening

change

of

law,

the

availability of new evidence, or the need to correct a clear error
or prevent manifest injustice.”

Kolel Beth Yechiel Mechil of

Tartikov, Inc. v. YLL Irrevocable Trust, 729 F.3d 99, 104 (2d Cir.
2013) (internal quotation marks omitted); see also Indergit v. Rite
Aid Corp., No. 08 Civ. 9361, 2014 WL 2741314, at *1 (S.D.N.Y. June
17, 2014) (“To prevail, the movant must demonstrate either (i) an
intervening change in controlling law; (ii) the availability of new
evidence; or (iii) the need to correct clear error or prevent
manifest injustice.”).
A party may not advance new “facts, issues, or arguments that
5

were previously available but not presented to the court,” id., and
a motion for reconsideration is generally “not the proper venue for
the submission of new material,” Systems Management Arts, Inc. v.
Avesta Technologies, Inc., 106 F. Supp. 2d 519, 520–21 (S.D.N.Y.
2000).

Local Rule 6.3 thus states that “[n]o affidavits shall be

filed by any party unless directed by the Court.” (Local Rule 6.3);
see also Boarding School Review, LLC v. Delta Career Education
Corp., No. 11 Civ. 8921, 2013 WL 6670586, at *1 (S.D.N.Y. Oct. 16,
2013) (“Local Rule 6.3 does not afford a losing party the right to
submit any affidavits or new evidence.”).

Furthermore, the court

“[should] not consider facts not in the record to be facts that the
court overlooked.” Rafter v. Liddle, 288 F. App’x 768, 769 (2d Cir.
2008) (internal quotation marks omitted).
2.
The

Application

parties

disagree

over

whether

the

newly-obtained

Certificate of Registration constitutes “new evidence” that was not
previously available, the consideration of which would “prevent
manifest injustice” (Memorandum of Law in Support of Plaintiff’s
Motion for Reconsideration of the Court’s Order Denying Without
Prejudice Plaintiff’s Motion for Leave to File Its Second Amended
Complaint and Jury Demand and Request for Injunctive Relief (“Pl.
Memo.” at 8), or whether it is an attempt to introduce “new facts”
that were previously available but not presented to the Court and
6

that

have

declaration

not

been

submitted

(Defendants’

with

Memorandum

a

supporting

of

Law

in

affidavit

or

Opposition

to

Plaintiff’s Motion for Reconsideration (“Def. Memo.” at 2, 8-10).
In this case, submission of the Certificate of Registration with a
motion

for

reconsideration

is

proper,

as

it

provides

new

evidentiary support for the plaintiff’s already argued factual
position -- that it “owns a valid copyright to the Zaragoza Plans
that is (or will shortly be) registered” (Pl. Memo. Amend. at 7) -rather than asserting a new (and unexpected) fact that was never
before the Court. Furthermore, this new evidence would necessarily
change the outcome of the prior ruling, which rested entirely on
the futility of the motion to amend absent a determination by the
Copyright

Office

on

the

plaintiff’s

application.

Thus,

reconsideration is reasonably expected to “alter the conclusion
reached” in the original decision.

Shrader, 70 F.3d at 257.

The plaintiff erred by prematurely filing its motion to amend,
by failing to attach any evidence of an approved or pending
copyright application, and by failing to notify the court promptly
of receipt of the registration (Def. Memo. at 4-5, 8, 10).3

3

The plaintiff argues that it intended to submit the
certificate as “supplemental authority prior to the Court issuing
its Order” but obviously did not do so in time. (Reply in Support
of Plaintiff’s Motion for Reconsideration of the Court’s Order
Denying Without Prejudice Plaintiff’s Motion for Leave to File its
Second Amended Complaint and Jury Demand and Request for Injunctive
7

However, it now argues that it “filed its motion as one for
reconsideration to prevent the waste of time, energy, and resources
that would result from fully re-briefing its motion to amend”
(Reply at 1).

I agree that reconsideration is the appropriate way

to deal with this matter.
defendants

do

not

argue

In opposing the instant motion, the
that

any

prejudice

would

arise

from

reconsidering the prior decision rather than considering a renewed
motion to amend, nor that it would be necessary to have further
briefing on the renewed motion to amend.

Indeed, they devote only

a short paragraph at the end of the opposition memo to “assert all
of [the] previously stated additional arguments for why [the]
[p]laintiff’s copyright claim should not be allowed” (Def. Memo. at
11), suggesting that they had a sufficient opportunity to brief
these issues in response to the original motion to amend and that
the changed circumstances have not otherwise altered their position
on the proposed amended claims.
Although motions for reconsideration are to be granted in only
exceptional circumstances, in this case granting the plaintiff’s
motion

rather

than

requiring

renewal

of

the

motion

to

amend

expedites a determination on the merits and furthers the interests
of finality and conservation of judicial resources.

Relief (“Reply”) at 2).
8

I therefore

grant

the

plaintiff’s

motion

to

reconsider

and

turn

to

the

underlying question of leave to amend the pleadings.
B.

Amendment of Pleadings
1.

Legal Standard

A motion to amend is generally governed by Rule 15(a) of the
Federal Rules of Civil Procedure, which states that “[t]he court
should freely give leave when justice so requires.”
P. 15(a)(2).

Fed. R. Civ.

Notwithstanding the liberality of the general rule,

“it is within the sound discretion of the court whether to grant
leave to amend.”

John Hancock Mutual Life Insurance Co. v.

Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994).
However, “if the motion [to amend] is filed after the deadline
imposed

by

the

district

court

in

its

scheduling

order,”

the

plaintiff must show “good cause” for failure to timely file.
Werking v. Andrews, 526 F. App’x 94, 96 (2d Cir. 2013) (citing Fed.
R. Civ. P. 16(b)(4)); see also Gullo v. City of New York, 540 F.
App’x 45, 46-47 (2d Cir. 2013); Grochowski v. Phoenix Construction,
318 F.3d 80, 86 (2d Cir. 2003) (“Where a scheduling order has been
entered, the lenient standard under Rule 15(a), which provides
leave to amend ‘shall be freely given,’ must be balanced against
the requirement under Rule 16(b) that the Court's scheduling order
‘shall not be modified except upon a showing of good cause.’”
(quoting Fed. R. Civ. P. 15, 16)).
9

In order to show good cause, the moving party must demonstrate
that, “despite having exercised diligence” in its efforts to adhere
to the court’s scheduling order, “the applicable deadline [to
amend] could not reasonably have been met.”

Huber v. National

Railroad Passenger Corp., No. 10 Civ. 9348, 2012 WL 6082385, at *3
(S.D.N.Y.

Dec.

4,

2012)

(citing

Rent-A-Center,

Inc.

v.

47

Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003)); see
also Werking, 526 F. App’x at 96.

“A party is not considered to

have acted diligently where the proposed amendment is based on
information that the party knew, or should have known, in advance
of the motion deadline.”

Guity v. Uniondale Union Free School

District, No. 12 CV 1482, 2014 WL 795576, at *2 (E.D.N.Y. Feb. 27,
2014).

The court may also consider prejudice to the nonmoving

party, the length of delay in filing the amendment, and the
explanation provided by the moving party.

Baez v. Delta Airlines,

Inc., No. 12 Civ. 3672, 2013 WL 5272935, at *5 (S.D.N.Y. Sept. 18,
2013); see also Wheeler v. Citibank, No. 11 Civ. 4721, 2012 WL
1995148, at *5 (S.D.N.Y. June 1, 2012).

The party moving to amend

“bears the burden of demonstrating a satisfactory explanation for
the delay.”

Baez, 2013 WL 5272935, at *5.

“After the moving party demonstrates [good cause] under Rule
16, the Rule 15 standard applies to determine whether the amendment
is proper.”

Wheeler, 2012 WL 1995148, at *5;
10

Roland v. McMonagle,

No. 12 Civ. 6331, 2014 WL 2861433, at *3 (S.D.N.Y. June 24, 2014)
(“Even if the movant [shows good cause], the court may deny the
motion based upon other factors such as prejudice to the opposing
party.”); Beckett v. Incorporated Village of Freeport, No. 11 CV
2163, 2014 WL 1330557 (E.D.N.Y. March 31, 2014) (“Once Plaintiff
has established ‘good cause’ to modify the scheduling order under
Rule 16(b)(4), Plaintiff must then satisfy the requirements of Rule
15(a) to be granted leave to amend.” ).

Under Rule 15, motions to

amend should be denied only for reasons such as “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of the
amendment, [or] futility of amendment.”

Foman v. Davis, 371 U.S.

178, 182 (1962); see also McCarthy v. Dun & Bradstreet Corp., 482
F.3d 184, 200 (2d Cir. 2007) (“A district court has discretion to
deny leave for good reason, including futility, bad faith, undue
delay, or undue prejudice to the opposing party.”); Blagman v.
Apple, Inc., No. 12 Civ. 5453, 2014 WL 2106489, at *2 (S.D.N.Y. May
19, 2014).

“Mere delay, however, absent a showing of bad faith or

undue prejudice, does not provide a basis for a district court to
deny the right to amend.” State Teachers Retirement Board v. Fluor
Corp., 654 F .2d 843, 856 (2d Cir. 1981).
While

prejudice

to

the

opposing
11

party

is

an

important

consideration, only undue prejudice justifies denial of leave to
amend.

See A.V. by Versace, Inc. v. Gianni Versace S.p.A., 87 F.

Supp. 2d 281, 299 (S.D.N.Y. 2000).

“Prejudice arises when the

amendment would ‘(i) require the opponent to expend significant
additional resources to conduct discovery and prepare for trial;
(ii) significantly delay the resolution of the dispute; or (iii)
prevent the plaintiff from bringing a timely action in another
jurisdiction.”

Soroof Trading Development Co. v. GE Microgen,

Inc., 283 F.R.D. 142, 147 (S.D.N.Y. 2012) (quoting Block v. First
Blood Associations, 988 F.2d 344, 350 (2d Cir. 1993)).

“Whether a

party had prior notice of a claim and whether the new claim arises
from the same transaction as the claims in the original pleading
are central to this determination.”

Blagman, 2014 WL 2106489, at

*3 (citing Monahan v. New York City Department of Corrections, 214
F.3d 275, 284 (2d Cir. 2000)).
proposed

amendment

expenditures
However,

of

time

would
and

“[a]llegations

expenditure

of

result
money.

that

additional

Prejudice may also arise if the

an

time,

in

significant

Monahan,
amendment
effort,

[themselves] constitute undue prejudice.”

214

F.3d

will
or

additional
at

284.

require

money

do

the
not

A.V. by Versace, Inc.,

87 F. Supp. 2d at 299 (internal quotation marks omitted).

Thus,

the fact that the opposing party will have to undertake additional
discovery, “standing alone, does not suffice to warrant denial of
12

a motion to amend a pleading.”

United States ex. Rel. Maritime

Administration v. Continental Illinois National Bank & Trust Co. of
Chicago, 889 F.2d 1248, 1255 (2d Cir. 1989).
2.

Application
i.

Good Cause

The plaintiff had good cause for failing to timely file the
motion to amend the complaint to add the copyright claim. Contrary
to the defendants’ assertions that the plaintiff missed “multiple
opportunities to try to assert a claim for copyright infringement”
since

the

original

Complaint

was

filed

(Def.

Memo.

at

2;

Defendants’ Memorandum of Law in Opposition to Plaintiff’s Motion
for Leave to File Second Amended Complaint and Jury Demand and
Request for Injunctive Relief (“Def. Memo. Amend.”) at 6, 12), as
the

prior

decision

made

clear,

the

plaintiff

could

not

have

asserted such a claim until its application had been ruled on by
the Copyright Office. In fact, the plaintiff’s motion to amend was
premature, not late, as it was filed before the copyright was
registered.
Even

with

the

plaintiff’s

alleged

attempts

to

exercise

diligence by expediting the Copyright Office’s consideration of its
application (which ultimately took some six months) (Pl. Memo. at
10), it could not reasonably have met the scheduling order deadline
because the application was filed after the deadline had already
13

passed. Perhaps the plaintiff could have submitted the application
earlier so that this claim would have ripened prior to the deadline
to amend set forth in the scheduling order; CCI argues, somewhat
unpersuasively, that two depositions taken after the deadline to
amend “confirmed” that the author of the Zaragoza Project plans
began working for the defendants after the plans were allegedly
stolen and that “it became clear” that the contractor had disclosed
those plans to the defendants, but that “[n]one of these facts were
available prior to the May 31, 2013, deadline [to amend].”

(Reply

Memorandum of Law in Support of Plaintiff’s Motion for Leave to
File Second Amended Complaint and Jury Demand and Request for
Injunctive Relief (“Reply”) at 3-4). But even if the plaintiff had
known all of this information prior to the deadline, that in no way
imposed

an

additional

requirement

to

file

for

copyright

registration at that time. The scheduling order and the good cause
requirement for altering it are simply administrative tools to
facilitate efficient case management, not substantive deadlines for
when a claim expires. The plaintiff correctly notes that it raises
the

copyright

claim

limitations to do so.
Thus,

while

the

well

within

the

three

year

statute

of

(Pl. Memo. Amend. at 6).
delay

may

complicate

discovery

and

the

existing case management schedule, the plaintiff sought out a
copyright registration at a reasonable point in time and has moved
14

to add a claim within the statute of limitations.

It made its

motion as early as it possibly could have; indeed, too early.

The

plaintiff had good cause not to file what would have been a futile
motion prior to the scheduling order deadline, and good cause to
file the current motion several months after that deadline expired.
ii.

Undue Delay

The plaintiff could not have filed its motion to amend any
earlier than it did, given that the registration had not yet been
approved.

For the same reasons the plaintiff had good cause in

waiting to file this motion until it did, it did not act with undue
delay.
iii.

Bad Faith or Dilatory Motive

The defendants argue that CCI is engaging in what amounts to
a “petty round of tit-for-tat,” as it “is only trying to add a
claim for copyright infringement because [the] [d]efendants were
allowed to assert claims against [the] [p]laintiff for trademark
infringement and unjust enrichment.”

(Def. Memo. Amend. at 2, 7,

13). The plaintiff denies this “tactical” motivation and reasserts
that information uncovered during discovery contributed to the
decision to bring a copyright claim and the delay in filing.
(Reply Amend. at 8).

The defendants’ argument is conjectural and

unsupported; they have failed to establish that the plaintiff’s
delay in seeking copyright registration or moving to amend the
15

complaint was done in bad faith or as a delay tactic.
iv.

Undue Prejudice to the Opposing Party

The defendants allege that the proposed copyright claim is
unexpected and they have not had a “fair opportunity to investigate
and prepare a legal defense,” that copyright issues were not
“directly addressed” in any discovery or depositions, and that
third party discovery of at least two witnesses would have to be
reopened for further investigation into the proposed copyright
claim.
the

(Def. Memo. Amend. at 13-14).

defendants,

who

brought

their

The plaintiff counters that
own

intellectual

property

counterclaims that required additional limited discovery (at least
some of which took place after notice of the plaintiff’s copyright
claim was given), have taken an additional Rule 30(b) deposition
and “propounded several sets of written discovery regarding [the]
[p]laintiff’s

proposed

coypright

Plaintiff’s timely answered.”
The

proposed

copyright

infringement

claim,

which

(Pl. Memo. at 10).
claim

arises

out

of

the

same

transaction as the other claims, and is consistent with the
plaintiff’s other claims that the defendants stole a client and
project from CCI.

As discussed in greater detail below, the

defendants note that CCI’s contract with the Zaragozas discussed a
potential transfer of rights to the plans, further suggesting that
the parties had notice of some potential intellectual property
16

claims arising out of the underlying dispute.

And while the

defendants

amendment

have

demonstrated

that

granting

the

may

require some additional expenditures of time and money to reopen
discovery, and may result in some delay of the scheduled trial
dates, they have not shown that these burdens would be significant
or could not be ameliorated.

The amendment may prejudice the

defendants, but it does not constitute undue prejudice that would
outweigh the interest in resolving all related claims arising from
the disputed acts.
v.

Futility

The defendants argue that the amended pleading fails because
(1) the plaintiff sold the copyrighted design plans to the Zaragoza
clients and thus no longer has any claim to them (Def. Memo. Amend.
at 9-10) and (2) the pleading does not properly identify “with any
particularity” which portions of the plans were copyrighted and
what acts infringed that copyright (Def. Memo. Amend. at 10-11).
As to the first allegation, the plaintiffs counter that even
if sale of the plans was contemplated upon completion of the
project, in this case the plans were not sold because the work
under contract was for “design commencement” only.
at 7).

(Reply Amend.

This is clearly a disputed fact -- drawing inferences in

the plaintiff’s favor, the parties contracted to begin design work
but did not reach an agreement regarding transfer of ownership of
17

the plans, and thus the copyright claim is not futile on ownership
grounds.
Furthermore, the proposed Second Amended Complaint provides
sufficient

detail

to

establish

copyright infringement.

the

elements

of

a

claim

for

“A properly plead copyright infringement

claim must allege 1) which specific original works are the subject
of the copyright claim, 2) that plaintiff owns the copyrights in
those works, 3) that the copyrights have been registered in
accordance with the statute, and 4) by what acts during what time
the defendant infringed the copyright.”

Young-Wolff v. McGraw-

Hill, No. 13 Civ. 4372, 2014 WL 349711, *2 (S.D.N.Y. Jan. 31, 2014)
(internal quotation marks omitted).
The proposed complaint states that the Zaragoza Plans “were a
compilation
architectural
“substantial

of
and

several
design

amounts

of

technical
plans”
original

drawings
and

that

material

plaintiff’s] own skill, labor and judgment.”
Compl., ¶¶ 29, 96, 103).

comprised
they

created

of

contained
by

[the

(Proposed 2d Am.

This description of the set of documents

and the nature of their content gives the defendants fair notice of
the claim against them and the copyrighted materials at issue.
The plaintiff also sufficiently alleges the infringing acts,
namely, that the defendants “utilized the plans prepared by [the
plaintiff] to sell and manufacture furniture, wall and ceiling
18

finishes, and other materials for the Project,” and that they
“appropriat[ed] as their own the Zaragoza Plans, and cop[ied]
constituent elements of the original Zaragoza Plans” in order to
use the plaintiff’s material “as the basis of their own plans to
complete the [Zaragoza] Project.” (Proposed 2d Am. Compl., ¶¶ 38,
109,

112).

constituting

“Although
copyright

a

plaintiff

must

infringement

with

describe
some

the

acts

specificity,

copyright claims are not subject to particularity in pleading,” and
the plaintiff has met its burden in the proposed pleadings.
Blagman v. Apple Inc., No. 12 Civ. 5453, 2013 WL 2181709, at *3
(S.D.N.Y. May 20, 2013) (internal quotation marks omitted)); see
also Schneider v. Pearson Education, Inc., No. 12 Civ. 6392, 2013
WL 1386968, at *3 (S.D.N.Y. April 5, 2013) (plaintiff need not
plead precise or excessive details of alleged infringing acts).
The defendants have thus failed to sustain their burden of
showing that the proposed amended claim would be futile.
Conclusion
For

the

foregoing

reasons,

the

plaintiff’s

reconsideration (Docket no. 139) is granted.

motion

for

The Second Amended

Complaint shall be filed within one week of the date of this order.

19

SO ORDERED.

JAMES C. FRANCIS IV
UNITED STATES MAGISTRATE JUDGE

Dated:

New York, New York
July 18, 2014

Copies mailed this date:
Gregg S. Rich, Esq.
Jerad A. West, Esq.
Lambdin & Chaney, LLP
4949 South Syracuse St. # 600
Denver, CO 80237
Christopher J. Caputo, Esq.
Lynn K. Neuner, Esq.
Linda H. Martin, Esq.
Simpson Thacher & Bartlett LLP
425 Lexington Avenue
New York, NY 10017

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