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Kid Stuff Marketing, Inc. v. Creative Consumer Concepts, Inc.

United States District Court, D. Kansas

March 30, 2017

KID STUFF MARKETING, INC., Plaintiff,
v.
CREATIVE CONSUMER CONCEPTS, INC., and STEAK N SHAKE OPERATIONS, INC. Defendants.

          ORDER OVERRULING OBJECTIONS TO NUNC PRO TUNC PRETRIAL ORDER

          TERESA J. JAMES, U.S. MAGISTRATE JUDGE

         This matter is before the Court on the parties' cross objections (ECF Nos. 136 and 137) to the Nunc Pro Tunc Pretrial Order of December 14, 2016 (ECF No. 134) (the “Pretrial Order”).[1] On February 22, 2017, while the objections were pending, all parties consented to the exercise of jurisdiction by the undersigned Magistrate Judge, pursuant to 28 U.S.C. § 636(c) and Fed.R.Civ.P. 73, to conduct all proceedings in this case including the jury trial in Kansas City, the entry of final judgment, and all post-trial proceedings.[2] Pursuant to the parties' consent, the undersigned Magistrate Judge addresses the parties' Fed.R.Civ.P. 72(a) objections to the Pretrial Order.[3]

         Plaintiff objects to the exclusion of its claims that Defendants' Ketchup car, Pickle car, and Mustard car (the “Condiment Car Series”) infringe Plaintiff's copyrights in its “Future Car” assembly instructions and die lines. Plaintiff specifically objects to footnotes 6-7, 11-12, and 16-17 of the Pretrial Order, in which Judge Gale sustained Defendants' objections to Plaintiff's assertion of direct infringement claims concerning the Condiment Car Series and “at a minimum” qualifiers, finding these claims were beyond what Plaintiff asserted in the First Amended Complaint.

         Defendants object to the inclusion of Plaintiff's claims identifying paperboard cars that Defendants argue were not identified in Plaintiff's First Amended Complaint, i.e., any paperboard car series other than the Land Spy Cruiser, the Sea Spy Sub Car, and the Space Spy Rocket Car (the “Spy Car Series”). Specifically, they object to the inclusion of the following paperboard cars as infringing products: the Mustard car, the Pickle car, the Birthday Cake Shake car, the Chocolate Fudge Brownie Shake car, the Chocolate Covered Strawberry car, the Sizzle 4x4, the Shaker 4x4, the Goldie 4x4, the Indy car, and “other consumer-facing materials” featuring the copyrighted Sizzle, Shaker, or Goldie cartoon characters.[4]

         Federal Rule of Civil Procedure 72(a) provides that timely objections to a magistrate judge's order on a non-dispositive pretrial matter are reviewed under a “clearly erroneous or contrary to law” standard.[5] The clearly erroneous standard “requires that the reviewing court affirm unless it ‘on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”[6] A magistrate judge's order is contrary to law if it “fails to apply or misapplies relevant statutes, case law or rules of procedure.”[7]

         In contrast, timely objections to a magistrate judge's disposition of a “pretrial matter dispositive of a claim or defense” are reviewed under the less deferential de novo standard.[8] Under de novo review, no special weight is given to the magistrate judge's determination and the reviewing judge independently determines the issues.[9] In conducting its review, the reviewing court may “accept, reject, or modify” the recommended disposition.[10]

         Judge Gale's decision-that both allowed and excluded certain alleged copyright infringement claims from the Pretrial Order-implicates both review standards; it is non-dispositive as to the former, and dispositive as to the latter. Case law from this District suggests that objections to a magistrate judge's rulings with respect to what the parties can include in the pretrial order are reviewed under the more deferential standard.[11] However, other cases-typically when the magistrate judge denies a motion seeking to add claims on futility grounds-have focused on the claim-dispositive nature of the magistrate judge's order in applying a de novo review.[12]

         The Court here need not make a determination regarding which standard of review is applicable. Regardless of the review standard applied, there was no error in Judge Gale's decision to include some and exclude other claims regarding paperboard cars from the Pretrial Order.

         Judge Gale described the parties' objections and his decision with respect to those objections in the preliminary matters section of the Pretrial Order:

The Defendants object that some claims asserted by Plaintiff in this Pretrial Order are beyond those alleged in the First Amended Complaint (Doc. 18), and beyond those represented by the Plaintiff during the previous motion to dismiss and in discovery. Defendants object that Plaintiff's claims attempt to improperly include, without leave of Court, an additional copyright (Goldie) that is not asserted in Plaintiff's Amended Complaint, and object that claim was not what KSM represented to this Court was asserted in this case in its Response in Opposition to Defendants' Motion to Dismiss. (Doc. 15, at 11.) Defendants object that Plaintiff did not seek permission to add the Goldie character copyright claim to the case when it sought leave to amend its complaint. (Doc. 47.) Defendants also object that Plaintiff further adds additional accused products, also not identified in Plaintiff's Amended Complaint and for which Plaintiff has never sought amendment to add to this case. Plaintiff's Complaint accuses C3's Spy Series cars-the Land Spy Cruiser, the Sea Spy Sub Car, and the Space Spy Rocket Car-as the infringing products. (Doc. 18, at ¶ 37.) It is Defendants' position that Plaintiff's claims are limited to the copyright and products identified in its Amended Complaint.
The Magistrate Judge heard and considered arguments from counsel on these issues. The Court overrules the objection concerning the allegations of copyright infringement concerning the “Goldie” character, as that claim was alleged in the First Amended Complaint (Doc. 18, paragraphs 22 and 24). However, the Court sustains the objection as claim of direct infringement concerning “cars” not identified in the First Amended Complaint. The Court overrules the objections concerning those same cars regarding indirect infringement, as part of infringement concerning subject characters. Paragraphs affected by these rulings will be noted in footnotes, infra.

         These rulings were implemented in the Legal Claims section of the Pretrial Order where the Condiment Car Series were deleted from Plaintiff's direct and contributory copyright infringement claims pertaining to the assembly instructions and die lines. All the other paperboard car references inserted by Plaintiff were allowed to remain in the Pretrial Order.

         Plaintiff objects to the deletion of the Condiment Car Series from its claims for infringement related to the assembly instructions and die lines.[13] After reviewing the parties' briefing and the First Amended Complaint, the Court finds that Plaintiff's assertion of direct infringement claims concerning the Condiment Car Series and “at a minimum” qualifiers in Plaintiff's assembly instructions and die lines were beyond what had been alleged in the First Amended Complaint. Plaintiff alleged in its First Amended Complaint (ECF No. 18) that it created original designs for paperboard cars to be included in kids' meals:

Among [Plaintiff] KSM's original designs are 9015 Concept Car 1 - SHAKER, 9015 Concept Car 2 - GOLDIE, and 9015 Concept Car 3 - SIZZLE (the 9015 designs). The 9015 designs were used to produce the “Future Car” series of cars for SNS. They are protected by copyright as 2-D artwork under Registration No. VA 1-924-909. ...

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