IMPACT APPLICATIONS, INC. v. CNS VITAL SIGNS et al

Filing 37

ORDER adopting 31 Report and Recommendations of Magistrate Judge Robert C. Mitchell as the Opinion of the District Court; granting 20 Motion to Dismiss for Failure to State a Claim; granting[ 22] Motion to Dismiss for Failure to State a Claim a nd plaintiffs claims are dismissed without prejudice; IT IS FURTHER ORDERED that Plaintiff is to file a motion to amend its complaint by November 25, 2013; IT IS FURTHER ORDERED that Defendants are to respond by December 9, 2013; IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate Judge Robert C. Mitchell is hereby adopted as the Opinion of the District Court. Signed by Chief Judge Joy Flowers Conti on 11/5/2013. (smc )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
IMPACT APPLICATIONS, INC.,
Plaintiff,

)
)
)
vs.
)
)
CNS VITAL SIGNS and PEARSON (US), )
Defendants.
)

Civil Action No. 13-580

MEMORANDUM ORDER
JOY FLOWERS CONTI, Chief District Judge.
Plaintiff Impact Applications, Inc. (“plaintiff”), commenced this action on April 22,
2013. The case was referred to a United States Magistrate Judge for pretrial proceedings in
accordance with Magistrate Judges Act, 28 U.S.C. § 636(b)(1) and Local Rules of Court 72.C
and 72.D.
Defendants CNS Vital Signs and Pearson (US) (collectively “defendants”) filed a motion
to dismiss [ECF Nos. 20, 22] on July 1, 2013.

The magistrate judge’s Report and

Recommendation [ECF No. 31] filed September 26, 2013 recommended that defendants’ motion
to dismiss be granted, and plaintiff’s claims be dismissed without prejudice to amend the
complaint consistent with the standards set forth in Twombly/Iqbal. See Rep. and Rec. [ECF No.
31] at 11-12. Service of the Report and Recommendation was made on all parties. The parties
were informed that in accordance with the Magistrate Judges Act, 28 U.S.C. § 636(b)(1)(B) and
(C), and Local Rule of Court 72.D.2, they had fourteen (14) days, until October 15, 2013, to file
any objections. Defendants object to the Report and Recommendation on the basis that allowing
plaintiff to amend its complaint would be futile. See Defs.’ Obj. [ECF No. 32]. Plaintiff filed a
response to defendants’ objections claiming that the complaint does not lay out the entirety of
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plaintiff’s case against defendants. Pl.’s Resp. to Obj. [ECF No. 34] at 3.
For the reasons set forth in the Report and Recommendation, this court finds that the
complaint does not adequately state enough facts to support a claim for copyright infringement
pursuant to 17 U.S.C. § 501 or trademark infringement pursuant to 15 U.S.C. § 1114. Federal
Rule of Civil Procedure provides that “the court should freely give leave [to amend a complaint]
when justice so requires.” Fed. R. Civ. P. 15(a). A court, however, need not grant leave to
amend where it is “apparent from the record that ‘(1) the moving party has demonstrated undue
delay, bad faith or dilatory motives, or (2) the amendment would be futile, or (3) the amendment
would prejudice the other party.’” U.S. Fire Ins. Co. v. Kelman Brothers, D.C. No. 2-11-cv00891, 2013 WL 5303261, at *7 (3d Cir. Sept. 23, 2013) (quoting Lake v. Arnold, 232 F.3d 360,
373 (3d Cir. 2000)).
Because a district court has wide discretion in allowing plaintiffs to amend their
complaints, the court, in the interest of justice, will permit plaintiff to amend its complaint to
bring proper copyright and trademark infringement claims against defendants to the extent that
amendment would not be futile. The magistrate judge recommended dismissal because the
complaint was devoid of any facts to support plaintiff’s claims. It is not apparent from the record
that amendment would be futile because the court does not have before it a proposed amended
complaint to make such a determination. As such, plaintiff shall file a motion to amend its
complaint and attach a proposed amended complaint as an exhibit for the court to determine
whether, if amended, plaintiff’s claims would be sufficient to state a claim.
Accordingly, after a de novo review of the pleadings and documents in this case, together
with the Report and Recommendation, and pleadings thereto, the following order is entered:
AND NOW, this 5th day of November, 2013, IT IS HEREBY ORDERED that

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Defendants’ Motion to Dismiss [ECF Nos. 20, 22] are granted and plaintiff’s claims are
dismissed without prejudice;
IT IS FURTHER ORDERED that Plaintiff is to file a motion to amend its complaint by
November 25, 2013;
IT IS FURTHER ORDERED that Defendants are to respond by December 9, 2013;
IT IS FURTHER ORDERED that the Report and Recommendation of Magistrate Judge
Robert C. Mitchell is hereby adopted as the Opinion of the District Court.
By the Court,
/s/ Joy Flowers Conti
The Honorable Joy Flowers Conti
United States Chief District Judge

cc: all counsel of record via CM/ECF electronic filing

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