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Conceivex, Inc. v. Rinovum Women'S Health, Inc.

United States District Court, E.D. Michigan, Southern Division

August 15, 2017

Conceivex, Inc., Plaintiff,
v.
Rinovum Women's Health, Inc., Rinovum Women's Health, LLC, and The Stork IB2C, Inc., Defendants.

          OPINION AND ORDER GRANTING PLAINTIFF'S MOTION TO AMEND [42, 43]

          JUDITH E. LEVY United States District Judge

         Before the Court is plaintiff Conceivex, Inc.'s motion to amend the complaint. (Dkts. 42, 43.)

         For the reasons set forth below, plaintiff's motion is granted.

         I. Background

         This case arises out of defendants' alleged infringements of plaintiff's copyright of the manual for its CONCEPTION KIT. Plaintiff alleges that it holds the copyright to the “Instructions for Use” document included with its CONCEPTION KIT. Defendants sell The Stork OTC Home Conception Device, and the instruction manual included with defendants' product allegedly copied or used language substantially similar to the copyrighted material in plaintiff's manual.

         Plaintiff filed this complaint on December 3, 2015, and filed a first amended complaint on March 2, 2016. (Dkts. 1, 6.) The original scheduling order permitted the parties to amend the pleadings until May 12, 2016. (Dkt. 16.) Under the current scheduling order, the cutoff for fact discovery is October 2, 2017, and expert discovery closes February 2, 2018. (Dkt. 36.)

         On March 29, 2017, plaintiff filed a motion seeking leave to file a second amended complaint, and seeks to add Mr. Stephen Bollinger, an executive officer of defendants, as a defendant. (Dkts. 42, 43)

         II. Legal Standard

         Fed. R. Civ. P. 15(a)(2) instructs courts to “freely give leave [to amend] when justice so requires.” But “[a] motion to amend a complaint should be denied if the amendment is brought in bad faith, for dilatory purposes, results in undue delay or prejudice to the opposing party, or would be futile.” Colvin v. Caruso, 605 F.3d 282, 294 (6th Cir. 2010) (internal citations omitted). “Ordinarily, delay alone, does not justify denial of leave to amend.” Morse v. McWhorter, 290 F.3d 795, 800 (6th Cir. 2002). “A proposed amendment is futile if the amendment could not withstand a Rule 12(b)(6) motion to dismiss.” Riverview Health Inst., LLC v. Med. Mut. of Ohio, 601 F.3d 505, 512 (6th Cir. 2010).

         III. Analysis

         Plaintiff seeks to amend the complaint to add Stephen Bollinger, an executive officer of defendant organizations, as a defendant. Defendants argue that the motion has been brought with undue delay; in bad faith to embarrass Mr. Bollinger; and will prejudice defendants because the case has been handled under the assumption that plaintiff was not seeking any personal liability. Further, defendants argue that an amendment would be futile, as plaintiff fails to allege that Mr. Bollinger was personally involved in the copyright infringement. Finally, defendants argue that the Court lacks personal jurisdiction over Mr. Bollinger. (Dkt. 45.)

         Undue Delay, Bad Faith, and Prejudice

         The parties first dispute whether the motion was filed with undue delay. Plaintiff claims the motion is timely because “[o]nly as discovery has progressed has it become clear that Bollinger was personally involved in and/or directed Defendants' infringing activities, ” and “many of the documents relied upon . . . were not produced by Defendants until March 8, 2017.” (Dkt. 43 at 16.) Defendants argue the motion was filed with undue delay because, “[s]ince the beginning of their dealings, [plaintiff] knew that Mr. Bollinger was the CEO or principal of Rinovum, ” and failed to amend the complaint during the time permitted under the scheduling order. (Dkt. 45 at 16.) Further, defendants claim that plaintiff's “recently obtained” argument is “disingenuous” given that plaintiff relies mostly on publicly available information in the proposed second amended complaint. (Id. at 17.)

         That plaintiff knew of Mr. Bollinger's existence when the lawsuit was filed does not indicate it knew at that time the extent of his involvement with the alleged copyright infringement. Thus, defendants cannot rely on this to demonstrate undue delay. Further, although defendants argue that most of the information about Mr. Bollinger is publicly available, they offer no support for this contention. For example, plaintiff alleges that “Mr. Bollinger personally directed the Defendants to engage in the alleged activities” and “was personally involved in the development of Defendants' products and instructions; [and] in Defendants' use of Plaintiff's copyright.” (Dkt. 43-2 at 5, 7.) It may be public information that Mr. Bollinger is CEO of defendants, and that he likes to make technology “user friendly.” (Dkt. 43 at 19.) But that in itself does not determine or indicate the extent of his involvement in all aspects of the business, including whether he was personally involved in writing or marketing the allegedly infringing instructions or in directing employees to do so. Defendants have not refuted plaintiff's claim that they recently obtained documents showing Mr. Bollinger's personal involvement in infringement, and therefore cannot demonstrate undue delay. Gen. Elec. Co. v. Adv. Stores Co., Inc., 285 F.Supp.2d 1046, 1049- 50 (N.D. Ohio 2003) (plaintiff permitted to amend complaint to add new claim based on information obtained in discovery despite the fact that complaint was first filed one and a half years earlier).

         Moreover, to the extent that plaintiff has alleged the discovery of new information that inculpates Mr. Bollinger, it has demonstrated good cause for seeking to amend after the scheduling order deadline has passed. See Leary v. Daeschner, 349 F.3d 888, 909 (6th Cir. 2003) (“[o]nce the scheduling order's deadline passes, a ...


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