# Harrington III v. Pinterest, Inc. > District Court, N.D. California · October 29, 2020 URL: https://www.frixlaw.com/law-library/cases/10065644 ## Case - **Court:** District Court, N.D. California - **Decided:** October 29, 2020 - **Opinion:** 100trialcourt - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10065644 ## Opinion text 1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 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. 12 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 20 21 22 23 24 25 26 27 28 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10065644. Public record. Not legal advice.