United States District Court, D. Kansas
ORDER DENYING MOTION TO AMEND COMPLAINT
Kenneth G. Gale, United States Magistrate Judge
the Court is the Motion for Leave to Amend Complaint filed by
Plaintiff Viper Nurburgring Record, LLC (hereinafter
"Viper," "VNR," or "Plaintiff).
(Doc. 44.) Having considered the submissions of the parties
as well as the Scheduling Order in this case, Plaintiffs
motion is DENIED.
a copyright infringement case. Defendants summarized the
"nature of the case" in its Motion to Compel (Doc.
50) currently pending before this Court. Defendants'
summary is as follows:
Plaintiff is an entity formed to set a world record time for
a production or 'stock' Viper - that is, a
'normal' Viper car off the production line or taken
from stock, and not specially modified other than minor
things like a safety cage for the drive - on the Nurburgring
track in Nurburg, Germany. Defendants were a sponsor and
contributed thousands of dollars to help support this world
VNR hired a professional photographer to document the event.
In exchange for Defendants' support and sponsorship, VNR
gave Defendants an express license to use at least one
photograph, and (Defendants argue) at the least an implied
license to use the others. Some of the photographs were later
offered on the photographer's website for license at $99
per photo, and many were also reproduced on social media with
commentary from Viper owners (there is a Viper Owners website
and online community).
The world record attempt failed (even though, it now appears,
VNR may have surreptitiously made major and illicit
modifications to boost the car's power). A few months
later, VNR claimed Defendants had to pay more money for the
license for the already promised photograph, and then in
March 2018 asserted that Defendants had infringed VNR's
purported copyrights by using a number of other photographs.
Defendants disagreed. This lawsuit ensued.
(Doc. 50, at 2.)
brings the present motion seeking leave to amend the
Complaint out of time to add Russell Oasis, owner of
Plaintiff VNR, as a named Plaintiff and to add a cause of
action for defamation against Defendant Robbins based on
allegedly "false and defamatory statements Mr. Robbins
published online about Mr. Oasis." (Doc. 44, at 1.)
Standard for Consideration of the Motion.
moves the Court for an Order allowing it to amend its
Complaint past the deadline to amend or modify pleadings
contained in the Scheduling Order. As such, the Court's
analysis focuses on Fed.R.Civ.P. 16(b), which governs
modifications to Scheduling Orders.
16(b)(4) provides that the Scheduling Order "may be
modified only for good cause and with the judge's
consent." To establish "good cause" the moving
party must show that the scheduling order's deadline
could not have been met with diligence. Parker v. Central
Kansas Medical Center,178F.Supp.2d 1205, 1210
(D.Kan.2001); Denmon v. Runyon,151 F.R.D. 404, 407
(D.Kan.1993). "This rule gives trial courts 'wide
latitude in entering scheduling orders,' and
modifications to such orders are reviewed for abuse of
discretion." In re ...