United States District Court, S.D. Florida
AMENDED ORDER ON PLAINTIFF'S MOTION FOR LEAVE TO
FILE AMENDED COMPLAINT
G. TORRES, United States Magistrate Judge
matter is before the Court on Plaintiff's Motion for
Leave to File an Amended Complaint and Add Parties, filed on
March 13, 2018. [D.E. 34]. Defendant filed a response in
opposition to the Motion on March 14, 2018, and the Reply
followed on March 21. [D.E. 35, 36]. After a review of the
Motion, Defendant's Response, and upon Plaintiff's
Motion for Reconsideration [D.E. 40], we hold that
Plaintiff's Motion should be GRANTED in
part and DENIED in part.
initially filed suit in the District Court for the Central
District of California. [D.E. 1]. The Complaint names as the
defendant ESSENTIAL MEDIA GROUP, LLC (“Defendant,
” “Essential Media, ” or
“EMG”), a limited liability company organized and
operating in the State of Florida. Id., ¶ 2.
Plaintiff 43 NORTH BROADWAY, LLC (“Plaintiff”), a
New York corporation, brought suit under the provisions of
the Copyright Act of 1976, 17 U.S.C. §§ 101 et
seq., claiming that Defendant unlawfully and without
Plaintiff's permission used and claimed ownership of the
copyrighted song “Baby, I'm Gonna Love You.”
Id. ¶¶ 1, 7. The Complaint asserts a
single cause of action, seeking damages from Essential Media
for direct infringement of the copyrighted work. [D.E. 1, p.
on the parties' stipulation, the Central District of
California transferred the case to this Court on December 14,
2017. [D.E. 15]. Defendant answered the Complaint on January
8, 2018. [D.E. 25]. On March 13, 2018, Plaintiff sought to
amend its Complaint and add certain parties to the lawsuit,
and that matter is now before this Court. [D.E. 34].
Plaintiff seeks to add Paul Klein, Rama Barwick, and Sharon
Klein, individuals allegedly managing Defendant's
operation at the time the infringing conduct took place.
Id., ¶ 4-5. According to the Motion, the
individuals to be added had knowledge, profited, and
internally induced EMG's direct infringement.
Id. Plaintiff therefore also asks that a second
cause of action for secondary copyright infringement against
those same individuals be added to the Complaint.
opposes the Motion, arguing that amendment would be futile
because the Amended Complaint fails to plead the necessary
elements of a secondary liability claim under the Copyright
Act - namely, that the individual officers not only profited
from the alleged infringement, but also had the right to and
ability to supervise the direct infringer. Id., p.
2. For the reasons stated below, we will allow Plaintiff to
amend the Complaint to add the individuals to Count I, but
deny the request to add a second count to the Complaint.
otherwise specified, a party may amend its pleading
“only with the opposing party's written consent or
the court's leave.” Fed.R.Civ.P.
15(a)(2).[1" name="FN1" id=
"FN1">1] The Rule goes on to state that
“[t]he court should freely give leave when justice so
requires.” Id.; Patel v. Georgia Dept.
BHDD, 485 Fed.Appx. 982 (11th Cir. 2012). Despite this,
a court may deny leave to amend on numerous grounds,
including the futility of the amendment. Maynard v. Bd.
of Regents of Div. of Univ. of Florida Dept. of Educ. ex rel.
Univ. of S. Florida, 1281');">342 F.3d 1281, 1287 (11th Cir.
2003). Futility justifies the denial of leave to amend where
the complaint, as amended, would still be subject to
dismissal. Burger King Corp. v. Weaver, 169 F.3d
1310, 1320 (11th Cir. 1990) (citations omitted).
Count I - Direct Infringement
is correct that corporate officers can be held liable for a
corporation's infringing activity. See Southern Bell
Tel. and Tel. Co. v. Associated Tel. Directory
Publishers, 1');">756 F.2d 801, 811 (11th Cir. 1985). This
would be applicable to claims of direct infringement, which
Plaintiff alleges took place in Count I. For this reason, the
Motion to Amend the Complaint as to this Count will be
GRANTED. See id.
Count II - Secondary Infringement
arguments about asserting a claim for secondary infringement,
however, remain meritless, and so we will deny the request to
amend the Complaint to add a second count against the
Defendants. There are two types of copyright infringement:
direct and secondary. Direct copyright infringement requires
proof that the plaintiff: (1) owns a valid copyright; and (2)
the defendant copied protected elements of that work that are
original. Disney Enterprises, Inc. v. Hotfile Corp.,
1303');">798 F.Supp.2d 1303, 1307 (S.D. Fla. 2011) (citing
Saragama India Ltd. v. Mosley, 1284');">635 F.3d 1284, 1290
(11th Cir. 2011)). “Copying” includes infringing
on any of the exclusive rights set forth in 17 U.S.C. §
106 - the right to reproduce, distribute, publicly display,
perform, or create derivative works of the copyrighted
materials. 17 U.S.C. § 106(1) - (6).
liability applies when a defendant is held responsible for a
third party's acts of infringement, even though the
defendant did not engage in direct infringement themselves.
See Sony Corp. of Am. v. Universal City Studios,
Inc., 17');">464 U.S. 417, 435 (1984). There are two types of
secondary infringing activity: contributory and vicarious.
Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,
13');">545 U.S. 913, 930 (2005). Contributory copyright infringement
occurs where a defendant “intentionally induc[es] or
encourage[es] direct infringement.” Id.
Vicarious infringement occurs when a defendant “profits
directly from the infringement and has a right and ability to
supervise the direct infringer, even if the defendant
initially lacks knowledge of the infringement. Id.
at 931 n.9.
now seeks to amend its Complaint based on Groskter
and its progeny. It claims that certain individuals involved
in the management of Essential Media “intentionally
induced, encouraged or materially contributed to [EMG's]
direct infringement.” [D.E. 34-1, ¶19]. But the
Motion must be denied because Plaintiff's ...