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Viper Nurburgring Record LLC v. Robbins Motor Co. LLC

United States District Court, D. Kansas

November 21, 2018

VIPER NURBURGRING RECORD, LLC, Plaintiff,
v.
ROBBINS MOTOR CO., LLC, and CLAYTON ROBBINS, Defendants.

          ORDER DENYING MOTION TO AMEND COMPLAINT

          Kenneth G. Gale, United States Magistrate Judge

         Before 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.

         FACTUAL BACKGROUND

         This is a copyright infringement case. Defendants summarized the "nature of the case" in its Motion to Compel (Doc. 50) currently pending before this Court.[1] 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 record attempt.
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.)[2]

         Plaintiff 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.)

         ANALYSIS

         A. Standard for Consideration of the Motion.

         Plaintiff 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.

         Rule 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 ...


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