LANDYA McCAFFERTY, District Judge.
Design Basics, LLC brings a copyright infringement claim against R.J. Moreau Communities, LLC ("R.J. Moreau"), alleging that R.J. Moreau used its copyrighted designs to market, sell, and build residential homes. Currently before the court is Design Basics's motion to amend its complaint (doc. no. 16) to add Reginald Moreau and Jon Lariviere as defendants and to add allegations concerning additional infringements. R.J. Moreau objects (doc. no. 17).
Under Federal Rule of Civil Procedure 15(a), a plaintiff can amend its complaint "once as a matter of course" up to 21 days after a motion to dismiss or answer has been served.
If, however, the deadline for amending pleadings contained in a scheduling order has lapsed, a motion to amend a pleading is assessed under Federal Rule of Civil Procedure 16, which governs the modification of scheduling orders.
Design Basics brought a copyright infringement claim against R.J. Moreau on August 4, 2015 under 17 U.S.C. §§ 101, et seq. (the "Copyright Act"). The complaint alleges that R.J. Moreau infringed Design Basics's copyrights in its architectural designs and technical drawings by using those works to market, sell, and build residential homes for consumers. R.J. Moreau answered Design Basics's complaint on September 8, 2015.
Three days after the parties filed the discovery plan, the magistrate judge issued an endorsed order on the docket approving the plan as a pretrial scheduling order subject to certain modifications. That order provided, in pertinent part, that the "[p]roposed discovery plan . . . [was] [a]pproved and adopted as a pretrial scheduling order with the following modification[]: The deadline for disclosure of claims against unnamed parties is set for December 22, 2015."
On January 21, 2016, Design Basics moved to amend its complaint. The proposed amended complaint, which is attached to the motion as an exhibit,
R.J. Moreau argues that Design Basics's motion should be denied because it does not comply with the deadline in the pretrial scheduling order, which, it contends, prohibits Design Basics from adding new parties after December 22. R.J. Moreau also contends that the court should deny Design Basics's motion to amend because the new proposed claims would prejudice Moreau and Lariviere and would be futile.
R.J. Moreau argues that the scheduling order modified the parties' proposed January 21, 2016 deadline for Design Basics to join new parties by moving it to December 22, 2015. In support of this argument, R.J. Moreau points to the provision in the scheduling order that requires the "disclosure of claims against unnamed parties" by December 22, 2015. Design Basics, on the other hand, argues that the scheduling order did not alter the discovery plan's proposed deadline for it to add parties. It contends that the provision in the scheduling order setting a deadline for the "disclosure of claims against unnamed parties" applies only to claims under state law where the defendant contends that an unnamed party is responsible. The court agrees.
The local rules of this district require that "[t]he discovery plan referenced in Fed. R. Civ. P. 26(f) shall substantially conform to Civil Form 2, Discovery Plan." L.R. 26.1. Civil Form 2, which is a form discovery plan, contains the following provision:
The parties' discovery plan did not contain this deadline. To ensure substantial compliance with Civil Form 2, as required under L.R. 26.1, the scheduling order modified the parties' proposed discovery plan by including a corresponding "deadline for disclosure of claims against unnamed parties" on December 22.
Here, Design Basics is the plaintiff, and it brings only federal claims. Accordingly, the scheduling order did not alter the January 21 deadline in the parties' discovery plan for Design Basics to join additional parties. Because Design Basics moved to add Moreau and Lariviere by the January 21, 2016 deadline, its motion to amend the complaint complies with the deadlines in the scheduling order.
As discussed above, approval to file an amended pleading prior to the deadline in a scheduling order is freely given "when justice so requires."
R.J. Moreau contends the court should not allow Design Basics to amend its complaint because the addition of the vicarious infringement claims would prejudice Moreau and Lariviere and because the new claims would be futile.
R.J. Moreau argues that Moreau and Lariviere would be prejudiced because Design Basics is attempting to bring claims "long after the alleged acts occurred." Obj. (doc. no. 17) 1-2. R.J. Moreau further argues that because some of the acts at issue here occurred nearly a decade ago, Moreau and Lariviere "could be deprived of evidence critical to their defense." Surreply (doc. no. 21) 2. "The question of [a claim's] timeliness is governed by the applicable statute of limitations, subject to the relation back doctrines of Rule 15(c)."
R.J. Moreau also argues that the court should deny Design Basics's motion because the claims against Moreau and Lariviere would be futile. "To determine whether a proposed amended complaint would be futile, the court uses the standard for motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6)."
"Vicarious copyright infringement occurs when a defendant has both the right and ability to supervise the infringing activities and an obvious and direct financial interest in the exploitation of copyrighted materials."
The proposed amended complaint alleges that R.J. Moreau infringed Design Basics's copyrights by using its designs and technical drawings to market, sell, and build residential homes. It also alleges that Moreau and Lariviere were members of R.J. Moreau and had "primary responsibility for [R.J. Moreau's] operation and management" during the infringing activity. Mot. Amend Compl. (doc. no. 16-2) ¶¶ 3-4, 22. Therefore, it is reasonable to infer that both Moreau and Lariviere had the right and ability to supervise the alleged infringing activity.
In addition, the proposed amended complaint alleges that Moreau and Lariviere had "an obvious and direct financial interest" in R.J. Moreau.
For the foregoing reasons, Design Basics's motion to amend the complaint (doc. no. 16) is granted.
SO ORDERED.