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James A. Fry v. Aztec Doberman Pinscher Club of San Diego

September 11, 2012

JAMES A. FRY,
PLAINTIFF,
v.
AZTEC DOBERMAN PINSCHER CLUB OF SAN DIEGO,
DEFENDANT.



The opinion of the court was delivered by: David H. Bartick United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION TO MODIFY THIS COURT'S SCHEDULING ORDER; AND REPORT AND RECOMMENDATION DENYING PLAINTIFF'S MOTION TO FILE FIRST AMENDED COMPLAINT [ECF No. 33] AND RELATED CROSS ACTION.

On July 17, 2012, Plaintiff/Counter-Defendant James A. Fry d/b/a Fox Network Systems, DobermanResQ.com and DobermanResQ, Inc. ("Plaintiff") filed a Motion to Modify This Court's Scheduling Order to Allow Plaintiff and Counter-Defendants to File Their First Amended Complaint ("Motion"). (ECF No. 33.) Defendant/Counter-Claimant Aztec Doberman Pinscher Club of San Diego ("Aztec") filed an Opposition to Plaintiff's Motion on August 9, 2012. (ECF No. 34.) Plaintiff filed a Reply on August 17, 2012. (ECF No. 37.) On August 23, 2012, the Court held a hearing on Plaintiff's Motion. (ECF No. 40.)

For the reasons set forth below, the Court DENIES Plaintiff's Motion to modify the motion to amend pleadings deadline contained in the Court's February 7, 2012 Scheduling Order Regulating Discovery and Other Pretrial Proceedings ("Scheduling Order") (ECF No. 21). In light of that order, and because Plaintiff has also moved for leave to file a First Amended Complaint, the Court hereby RECOMMENDS that the District Judge assigned to this case DENY Plaintiff's motion for leave to file a First Amended Complaint.

I. BACKGROUND

A. Plaintiff's Allegations

On May 13, 2011, Plaintiff, acting in pro per,*fn1 filed a Claim in state small claims court seeking to recover $4,750 from Aztec. (ECF No. 1-1 at 3.) Plaintiff alleged that Aztec downloaded ninety-five of Plaintiff's copyrighted images from Plaintiff's website, DobermanResQ.com, and placed the images on Aztec's own website, Aztecdpc.com, without Plaintiff's permission. (Id.) Plaintiff contends Aztec was notified by March 7, 2011 to remove the images or be subject to a fine of $50 per image, per year. (Id.)

B. Aztec's Answer, Counterclaim and Third-Party Complaint

On June 15, 2011, Aztec removed the action to federal court based on federal question jurisdiction because Plaintiff's copyright claims arise under the federal Copyright Act, 17 U.S.C. § 101 et seq. (ECF No. 1 at ¶¶ 5-12.)

On July 2, 2011, Aztec filed an Answer to Plaintiff's Claim and a Counterclaim against Plaintiff. In its Answer, Aztec asserted numerous affirmative defenses, including that "[n]o license agreement exists. Claim for payment for permissive use of images for a fee would constitute a license agreement between Aztec and Plaintiff, and no such license agreement exists." (ECF No. 2 at ¶ 20.) Aztec's Counterclaim also includes a cause of action for declaratory judgment that no licensing agreement exists between Aztec and Plaintiff. (Id. at ¶¶ 56-58.)*fn2

In addition to denying that any license agreement exists, Aztec denies that Plaintiff is the copyright owner of the disputed images. (Id. at ¶ 34.) Aztec alleges that the disputed images "were created by the then chairperson of the Aztec Doberman Rescue program, an established and recognized program of Aztec." (Id. at ¶ 41.) "In the course of carrying out the duties of the chairperson of Aztec's Doberman Rescue, the chairperson takes photographs of the dogs that are taken into Aztec's rescue program. Aztec then uses these photographs to promote the dogs for adoption. Thus, the photographs are taken of Aztec-owned dogs, by Aztec Doberman Rescue committee members, using Aztec's camera, at Aztec authorized kennels." (Id. at ¶ 42.)

On July 2, 2011, Aztec also filed a Third-Party Complaint against Plaintiff individually and doing business as DobermanResQ.com and DobermanResQ, Inc. (ECF No. 3.) The Third-Party Complaint asserts the same factual allegations as the Counterclaim. In addition, Aztec alleges in its Third-Party Complaint that after Plaintiff offered to display photos of Aztec's rescue dogs on his website, Aztec supplied Plaintiff with the original digital photographic files of Aztec's rescue dogs. (Id. at ¶ 11.) Aztec contends Plaintiff then performed minor modifications (cropping and/or altering their size) to the original photos before placing the disputed images on his website. (Id.)

C. Scheduling Order

On February 7, 2012, the Court issued a Scheduling Order Regulating Discovery and Other Pretrial Proceedings ("Scheduling Order"). (ECF No. 21.) The Scheduling Order required, among other things, that any motion to amend pleadings ...


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