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Cody Foster & Co., Inc. v. Urban Outfitters, Inc.

United States District Court, District of Nebraska

May 4, 2015

CODY FOSTER & CO., INC., a Nebraska corporation; Plaintiff,
v.
URBAN OUTFITTERS, INC., a Pennsylvania Corporation; ANTHROPOLOGIE, INC., a Pennsylvania Corporation; and URBN UK LIMITED, a United Kingdom Corporation; Defendants.

MEMORANDUM AND ORDER

Cheryl R. Zwart, United States Magistrate Judge.

This matter is before the court on Plaintiff’s Motion for Leave to File a Fifth Amended Complaint, (Filing No. 64). For the reasons set forth below, the motion will be denied.

BACKGROUND

Plaintiff filed its Fourth Amended Complaint on October 3, 2014. (Filing No. 22). The Fourth Amended Complaint alleges claims based on Defendants’ alleged breach of various contracts for the sale of ornaments. The second claim is based on Defendants’ alleged infringement of rights under United States copyright laws with respect to certain ornaments. That is, Plaintiff alleges Defendants reproduced and sold certain ornament designs in violation of the Copyright Act. The ornaments identified in the Fourth Amended Complaint are: (1) ORN-388 Deer Globe Ornament; (2) ORN-546 Pine Owl Ornament; (3) MSC-715 Jingle Garland; (4) ORN-486 Alphabet Ornaments; and (5) IR-306-S Sacred Heart. (Filing No. 22, ¶ 50 at CM/ECF p. 9).

Under the court’s progression order, (Filing No. 24), Plaintiff’s deadline to file further motions to amend pleadings expired on November 5, 2014. Plaintiff filed its motion for leave to file a Fifth Amended Complaint on March 19, 2015. (Filing No. 64).

The proposed Fifth Amended Complaint would significantly change the Fourth Amended Complaint. It asserts new theories of recovery based on breach of implied warranty of good faith and fair dealing, false advertising, violations of the Nebraska Consumer Protection Act and unjust enrichment, and it identifies eleven (11) additional ornaments supporting Plaintiff’s copyright infringement claims.

The new ornaments and the effective registration date of Plaintiff s copyright are:

• ORN-007 Victorian Whale Orn (September 10, 2013)
• ORN-007-PR Victorian Whale Orn-Pearl (September 10, 2013)
• ORN-922 Tiny Whale Orn - 3 Asst (July 26, 2013)
• T0-013 French Bulldog Globe Orn (November 6, 2014)
• ORN-093 Fox Orn (November 6, 2014)
• C0-139 Gleaming Eiffel Tower ...

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