The opinion
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
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7 HAROLD DAVIS, Case No. 19-cv-07650-HSG
8 Plaintiff, ORDER DENYING MOTION FOR
LEAVE TO AMEND COMPLAINT
9 v.
Re: Dkt. Nos. 41, 52
10 PINTEREST, INC.,
11 Defendant.
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13 Pending before the Court is Plaintiff Harold Davis’s motion for leave to amend the
14 complaint. See Dkt. Nos. 41, 52. The Court finds this matter appropriate for disposition without
15 oral argument and the matter is deemed submitted. See Civil L.R. 7-1(b). For the reasons detailed
16 below, the Court DENIES the motion.
17 I. BACKGROUND
18 A. Factual Background
19 Plaintiff is a digital artist and professional photographer. See Dkt. No. 23 (“FAC”) at ¶ 1.
20 Defendant Pinterest, Inc. is an online platform that allows users to create their own virtual
21 “pinboards” or “boards,” by “pinning” images to their boards. See id. at ¶ 14. These images may
22 be captured by Defendant’s users, or may be copied from other sources on the internet. See id.
23 According to Plaintiff, Defendant “employs no system of screening for copyrighted images,
24 copyright notices, or other indicia of copyright for images upload by Pinterest users, or saved by
25 Pinterest users to Pinterest Boards.” See id. at ¶ 25. As such, Plaintiff alleges that Defendant
26 “provides a mechanism for people to easily and swiftly violate the intellectual property rights of
27 others,” including photographers like Plaintiff. See id. at ¶ 17. Plaintiff alleges that Defendant
1 306. Based on these facts, Plaintiff filed a complaint for both direct and contributory copyright
2 infringement. See id. at ¶¶ 323–332.
3 B. Procedural History
4 Plaintiff filed his initial complaint on November 20, 2019. See Dkt. No. 1. Defendant
5 subsequently moved to dismiss Plaintiff’s contributory infringement claim. See Dkt. No. 17.
6 Rather than file an opposition or statement of non-opposition to the motion, see Civil L.R. 7-3(b),
7 Plaintiff filed an amended complaint on March 11, 2020. See FAC. Defendant again moved to
8 dismiss the contributory infringement claim. See Dkt. No. 27. On July 22, 2020, the Court
9 granted the motion to dismiss with leave to amend. See Dkt. No. 39. The Court directed Plaintiff
10 to file an amended complaint, if he could do so consistent with his Rule 11 obligations, by August
11 14, 2020. Id. at 5. The Court further cautioned Plaintiff that he could not add additional
12 defendants or new claims. See id.
13 Despite the Court’s prior directive, Plaintiff filed a motion for leave to add a new claim to
14 his complaint, a violation of the Digital Millennial Copyright Act (the “DMCA”), 17 U.S.C.
15 § 1202(b), and to bring the action on behalf of a putative class. Dkt. No. 41. That same day,
16 Plaintiff’s counsel filed another action against Defendant in this district. See Harrington III v.
17 Pinterest, Inc., No. 4:20-cv-05290-EJD (N.D. Cal.). The complaint in Harrington is a putative
18 class action and includes allegations about Plaintiff Harold Davis’s works and also includes a
19 DMCA claim.
20 Rather than adhere to the briefing schedule on the motion for leave, the parties filed a
21 notice of related case, and agreed that the case should be related to Harrington. See Dkt. No. 42.
22 The Court held a telephonic conference to discuss the pending motions. See Dkt. No. 47. The
23 Court expressed concern with Plaintiff’s apparent gamesmanship: filing a new, expanded action
24 in this district, then seeking to relate the two cases, which could circumvent the Court’s prior order
25 not to add additional defendants or causes of action. The Court indicated that it would first
26 address the motion for leave to amend the complaint before addressing whether Harrington is
27 related. The Court directed the parties to meet and confer and set an expedited briefing schedule
1 The parties met and conferred, and Plaintiff decided that he would no longer seek to amend
2 his complaint to bring this action on behalf of a putative class. See Dkt. No. 50. Plaintiff
3 therefore filed an amended motion for leave to file an amended complaint. See Dkt. No. 52. He
4 now seeks only to add the new DMCA claim. Id.
5 II. LEGAL STANDARD
6 A party seeking to file a second or successive amendment “may amend its pleading only
7 with the opposing party’s written consent or the court’s leave.” Fed. R. Civ. P. 15(a). Under
8 Federal Rule of Procedure 15(a)(2), “leave to amend shall be freely granted ‘when justice so
9 requires.’” See Townsend v. Univ. of Alaska, 543 F.3d 478, 485 (9th Cir. 2008) (quoting Fed. R.
10 Civ. P. 15(a)(2)). Despite the liberality with which Rule 15(a) is applied, the Court may exercise
11 its discretion to deny leave to amend due to factors such as (1) bad faith, (2) undue delay,
12 (3) prejudice to the opposing party, (4) futility of amendment, and (5) previous amendments. See
13 Foman v. Davis, 371 U.S. 178, 182 (1962); see also Wash. State Republican Party v. Wash. State
14 Grange, 676 F.3d 784, 797 (9th Cir. 2012) (same).
15 III. DISCUSSION
16 Plaintiff urges that he should be permitted to add a DMCA claim to his second amended
17 complaint because the claim is “viable,” and Defendant would not be prejudiced because the case
18 schedule has not yet been set. See Dkt. No. 52 at 3. The Court is not persuaded. Although
19 Plaintiff suggests that the motion should be granted “based on newly developed facts,” see id. at 1,
20 he does not identify any such facts. Critically, Plaintiff failed to provide any reasonable
21 justification for not bringing this claim in his initial complaint or first amended complaint. The
22 Court finds that Plaintiff has had ample opportunity to allege a DMCA claim, and to do so now
23 would cause undue delay. This case was initially filed almost a year ago, and since then the
24 parties have engaged in two rounds of motions practice to finalize the pleadings. The Court
25 declines to permit Plaintiff to further delay this action by amending the complaint to add a new
26 cause of action, which would no doubt prompt another motion to dismiss. Indeed, the parties
27 preview such a motion in their briefing on the motion for leave to amend. See Dkt. Nos. 53, 54.
1 IV. CONCLUSION
2 Accordingly, the Court DENIES the amended motion to amend the complaint. Dkt. No.
3 52. Plaintiff's prior motion to amend is TERMINATED AS MOOT. Dkt. No. 41. To the extent
4 || Plaintiff seeks to file an amended complaint to address the deficiencies the Court identified in its
5 prior order, Dkt. No. 39, and consistent with this order, Plaintiff may do so by November 13,
6 || 2020. The Court SETS a telephonic case management conference for November 24, 2020, at 2:00
7 p.m. The parties shall file a joint case management statements by November 17, 2020. The parties
8 should be prepared to discuss the schedule to move this case forward expeditiously. All counsel
9 as well as members of the public and press may use the following dial-in information below to
10 access the conference line:
11 Dial In: 888-808-6929
12 Access Code: 6064255
13 Lastly, in light of this order, the Court finds, pursuant to Civil L.R. 3-12, that this action is not
14 || related to Harrington, No. 4:20-cv-05290-EJD (N.D. Cal.). The Clerk is directed to file a copy of
3 15 this order in Harrington.
a 16 IT IS SO ORDERED.
17 || Dated: 10/29/2020
1g Aepurd 3 bbl)
HAYWOOD S. GILLIAM, JR.
19 United States District Judge
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