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D'Amico v. New York Times

October 8, 1998


The opinion of the court was delivered by: Joel A. Pisano United States Magistrate Judge



Currently before the Court is Plaintiff's motion for leave to file a second amended complaint, seeking to add four new counts as a basis for recovery. Defendants filed opposition, and the Court heard oral argument on September 28, 1998. For the following reasons, Plaintiff's motion is denied.


Sam D'Amico is a freelance photographer who began taking photographs in approximately 1992 for Defendant newspaper, The New York Times. (Pl.'s Br. Supp. Mot. at 1) Plaintiff alleges that he granted Defendant a limited "one time right to publish his photographs within the printed version" of the newspaper. (Id.) Plaintiff alleges that his photographs were (1) appearing in later editions of The New York Times, (2) sold to third parties, and (3) reappearing in other newspapers that subscribe to the New York Times News Service. (Id. at 2) Plaintiff alleges that he did not authorize Defendant to resell his photographs. (Id. at 3)


This case is less than one year old, but has an unnecessarily complex procedural history. It is necessary to set forth in detail this procedural history in order to decide Plaintiff's motion. On October 8, 1997, Plaintiff filed his first complaint, which contained nine counts. Counts one through four alleged copyright infringement and sought statutory damages for Plaintiff's photographs of Frank Sztuk, a shadow, George Jacobs, and a Hindu temple. (Pl.'s Compl. ¶¶ 6, 13, 20, 28) Plaintiff alleged that he registered each photograph with the United States Register of Copyrights on September 14, 1997. (Pl.'s Compl. ¶¶ 9, 16, 24, 33) Counts five through eight allege breach of contract, claiming that Defendant failed to return the original negatives for four separate sets of photographs. (Pl.'s Compl. ¶¶ 36, 42, 48, 54) Finally, count nine alleged tortious interference by Defendant. (Pl.'s Compl. ¶ 60)

It is significant to note, for the purpose of Plaintiff's current motion, that at the time he filed his original complaint he failed to assert a claim on three cases of alleged infringement of which he was aware as early as August 4, 1997. (Reynolds Certif. Ex. A) In this vein, Plaintiff's counsel informed the Defendant's legal department that Plaintiff would "be pursuing claims against the Times for" reprinting "WITHOUT AUTHORIZATION" photographs of Sister Fritz, Barbara Buono, and Jeff Warsh. (Reynolds Certif. Ex. A) These cases of alleged infringement were not included in Plaintiff's original complaint.

After negotiations between the parties concerning the merits of Plaintiff's claims, Plaintiff filed his first amended complaint. Plaintiff asserted the same four claims in counts one through four, but deleted the demand for statutory damages in counts one through three. (Pl.'s Amend. Compl. ¶¶ 11(c), 18(c), 26(c)) Counts five through nine were identical to the original complaint. Plaintiff again did not include any claim based on the photographs of Sister Fritz, Barbara Buono, or Jeff Warsh.

Defendants answered the first amended complaint and, on May 20, 1998, moved successfully to dismiss counts five through nine. By Order of June 22, 1998, counts five through eight were dismissed and submitted to arbitration, and count nine was dismissed for failure to state a claim upon which relief could be granted. See Judge Walls's Order of 6/22/98. Subsequently, this Court instructed Plaintiff to file a motion for leave to file a second amended complaint and granted Defendant permission to conduct a limited deposition of Plaintiff concerning the merits of the anticipated second amended complaint.

On July 14, 1998, Plaintiff moved for leave to amend the complaint, which asserted the original four counts, including statutory damage demands for each count of infringement. (Pl.'s 2d Am. Compl. ¶¶ 11(c), 18(c), 26(c), 35(c)) Counts five through seven now included, for the first time, claims of copyright infringement relating to the three photographs of Sister Fritz, Barbara Buono, and Jeff Warsh. (Pl.'s 2d Am. Compl. ¶¶ 37, 44, 51) Additionally, Plaintiff added count eight, an entirely new claim relating to the alleged copyright infringement of 125 photographs that Plaintiff alleges were sold through the New York Times News Service. (Pl.'s 2d Am. Compl. ¶¶ 57-63) Each photograph was listed in "Schedule A," which was appended to the complaint.

Defendants deposed Plaintiff on August 18, 1998, in order to help them respond to Plaintiff's motion for leave to amend the complaint. Significantly, Defendant devoted much of the questioning to the existence of a factual basis underlying Plaintiff's allegations contained in count eight of the second amended complaint. On August 19, 1998, the very next day, Plaintiff filed an amended second amended complaint (hereinafter, for the sake of clarity, "third amended complaint") that, according to Plaintiff's counsel, contained "no substantive differences, only minor typo-graphical errors and omissions." (Letter from Marcolini to Hon. Joel A. Pisano of 8/19/98, at 1) The third amended complaint stated that count eight was now based "[u]pon information and belief." (Pl's 3d Am. Compl. ¶¶ 60, 61)

Defendants filed their opposition to the motion for leave to amend on August 28, 1998. Plaintiff filed on September 8, 1998, a reply brief in support of his motion for leave to amend. The Court heard oral argument on September 28, 1998, and reserved judgment on Plaintiff's motion.


Federal Rule of Civil Procedure 15 governs the amendment of pleadings. Rule 15(a) provides that once a response to a party's pleading is served that pleading may be amended "only by leave of court or by written consent of the adverse party," and states further that "leave shall be freely given when justice so requires." A general presumption exists that favors permitting a party to amend his pleadings. See Boileau v. Bethlehem Steel Corp., 730 F.2d 929, 938 (3d Cir. 1984). Leave to amend a complaint should be granted freely absent undue delay or bad faith on the movant's part, or if the opposing party would not suffer undue prejudice. See Foman v. Davis, 371 U.S. 178, 182 (1962); Adams v. Gould, Inc., 739 F.2d 858, 864 (3d Cir. 1984).

It is proper to deny a motion for leave to amend, however, when the amendment would be frivolous, futile, or unduly prejudicial; when it would cause undue delay; or when there is a finding of bad faith. See Foman, 371 U.S. at 182. A trial court "may properly deny leave to amend where the amendment would not withstand a motion to dismiss." Massarsky v. General Motors Corp., 706 F.2d 111, 125 (3d Cir. 1983). The court has discretion whether or not to grant the motion for leave to amend, but denial of the motion without any legal reasoning is an abuse of discretion that is not in the spirit of the Federal Rules of Civil Procedure. See Foman, 371 U.S. at 182.


If a plaintiff has had sufficient opportunity to assert claims, but fails to do so, leave to amend may quite properly be denied. See 6 Charles Alan Wright et al., Federal Practice and Procedure ยง 1487 (2d ed. 1990). Court have repeatedly visited ...

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