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Jenny Yoo Collection, Inc. v. Essense of Australia, Inc.

United States District Court, D. Kansas

December 20, 2018

JENNY YOO COLLECTION, INC., Plaintiff,
v.
ESSENSE OF AUSTRALIA, INC., Defendant

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER UNITED STATES MAGISTRATE JUDGE

         On December 12, 2018, the Court convened an in-person motion hearing to address Plaintiff's Motion for Leave to Substitute and File Exhibits (“Motion”) (ECF No. 41).[1]Plaintiff appeared through counsel, Laura-Michelle Horgan, William H. Meyer, and Maurice N. Ross.[2] Defendant appeared through counsel, James J. Kernell and Kyle D. Donnelly. After review of Plaintiff's Motion and Memorandum in Support (ECF No. 42), Defendant's Response (ECF No. 47), all attached exhibits, and hearing arguments of counsel, the Court GRANTED the Motion at the hearing. The previously-announced ruling of the Court is now memorialized below.

         I. Background

         On November 22, 2017, Plaintiff filed its original Complaint against Defendant alleging (1) federal trade dress infringement; (2) common law trade dress infringement and unfair competition; (3) infringement of the ‘D723 Patent; and (4) infringement of the ‘D120 Patent.[3] Plaintiff attached copies of the two patents at issue as an exhibit to the Complaint.[4] In response, Defendant, on February 12, 2018, filed a Motion to Dismiss for Failure to State a Claim.[5]

         On August 7, 2018, Chief District Judge Julie A. Robinson granted in part and denied in part Defendant's Motion to Dismiss for Failure to State a Claim.[6] As important here, Judge Robinson granted Plaintiff leave to amend its Complaint to clarify what its trade dress covers beyond “two front panels and two rear panels attached to the waist.”[7]

         Plaintiff timely filed an Amended Complaint, and attached a redline version of the Amended Complaint purporting to show the changes made to the original Complaint as Exhibit A.[8] Additionally, while Plaintiff's allegations regarding patent infringement remained in the Amended Complaint, [9] Plaintiff did not re-attach copies of the two patents at issue as exhibits.

         On September 10, 2018, Defendant filed a Second Motion to Dismiss.[10] As germane here, Defendant seeks to dismiss Plaintiff's amended claims regarding trade dress infringement, and specifically argues Plaintiff's revised definition of what its trade dress covers is still inadequate.[11] Plaintiff filed a Response to the Second Motion to Dismiss on October 1, 2018.[12] Defendant filed a Reply to Plaintiff's Response on October 15, 2018.[13]Thus, the Second Motion to Dismiss is ripe for ruling at this time.

         Meanwhile, on November 2, 2018, Plaintiff filed a Motion for Leave to Substitute and File Exhibits (“Motion”), [14] which is at issue here. Plaintiff is asking to substitute an exhibit containing a corrected redline version of the Amended Complaint for the one currently on file as Exhibit A. Plaintiff is also seeking to add two exhibits, which contain copies of the patents at issue, to the Amended Complaint. Defendant filed an Opposition to Plaintiff's Motion on November 16, 2018.[15] No. reply was permitted. The Court held a motion hearing on December 12, 2018.[16]

         II. Plaintiff's Motion for Leave to Substitute and File Exhibits (ECF No. 41)

         A. Legal Standard

         Plaintiff is seeking to substitute an exhibit containing a corrected redline version of the Amended Complaint for the one currently on file. Plaintiff additionally seeks leave to add two exhibits, which contain copies of the patents at issue, to the Amended Complaint that were inadvertently omitted at the time of filing. Under these circumstances, a party should be allowed to substitute or add exhibits unless its request to do so is unduly delayed or prejudicial to the opposing party.[17]

         B. Discussion

         1. Substitution of Redline Exhibit

         As stated above, when Plaintiff filed its Amended Complaint on August 20, 2018, it also filed a redline version of the Amended Complaint and attached it as Exhibit A. Plaintiff states it only filed this redline version as a courtesy to the Court to show the changes it made to the original Complaint. Plaintiff, upon realizing mistakes in the current redline version, is now seeking leave to fix those errors by substituting a corrected redline version. In particular, Plaintiff states the “redline version of the Amended Complaint currently filed as Exhibit A contains minor, unintentional inaccuracies, in that it did not run correctly and, as a result, does not accurately reflect the full extent of the changes made to the original Complaint.”[18] Plaintiff further states “several sentences that were added throughout the Amended Complaint did not present as redline additions.”[19]

         Plaintiff insists substitution of a corrected redline version will not prejudice Defendant because Plaintiff does not seek to make any substantive changes to the Amended Complaint itself. Rather, Plaintiff only seeks to refile an accurate version of a redline it was not required to file in the first instance. Thus, per Plaintiff, because the requested substitution is purely ministerial, and not substantive, its request should be granted.

         Defendant, on the other hand, characterizes Plaintiff's Motion as one to amend the pleadings by adding what it describes as a redlined Amended Complaint with “substantive additions, modifications and deletions, ”[20] and analyzes it under Fed.R.Civ.P. 15, which governs amendments to the pleadings. Defendant also argues Plaintiff's Motion is untimely as the deadline to file amended pleadings was August 31, 2018. Further, Defendant states the corrected redline version is still not correct because the numbering from paragraph 67 on is not accurate.

         The Court, however, has compared the two redline versions and has compared each to the Amended Complaint on file at ECF No. 27. While it is true that not all of the changes in the current Exhibit A showed up as “redlined, ” the substance of each redline version appears to be the same and appears to match the Amended Complaint at ECF No. 27. Because the Court finds no apparent substantive changes are being made to the Amended Complaint with the substitution of the corrected redline version, the Court finds analysis of Plaintiff's Motion under Rule 15, and Defendant's arguments regarding the same, simply misplaced.

         Defendant also argues it will be prejudiced by the substitution of the corrected redline version. Defendant states it relied on the redline version at Exhibit A when preparing the Second Motion to Dismiss. Defendant states “[e]ach of the paragraphs that were not marked as altered, were ignored by Essense, focusing only on the substantive changes identified by Plaintiff. And, only when Plaintiff filed its ‘corrected' redline version, was Essense made fully aware of the significant edits Plaintiff made to the pleadings in this case.”[21]

         In addressing Defendant's arguments, the Court reviewed Defendant's Second Motion to Dismiss and Memorandum in Support, Plaintiff's Response, and Defendant's Reply to Plaintiff's Response. From its review of these briefings, the Court finds Defendant's argument that it only relied on the redline changes in Exhibit A and ...


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