United States District Court, D. Minnesota
R. Fairbairn, Jessica M.A. Thomas, and Andrew R. Swanson,
KINNEY & LANGE, P.A., for plaintiff.
Jonathan L.A. Phillips, SHAY PHILLIPS, LTD., for defendants
Star Music, Inc. and Tracy Brock.
Michael S. Sherrill, SHERRILL LAW OFFICES, PLLC, for
defendants Rich Management, Inc. and Fong's, Inc.
Patrick J. Schiltz United States District Judge
Tracy Brock and Star Music, Inc. (“Star”) stage
karaoke events at bars and other venues, including venues
operated by defendants Rich Management, Inc.
(“Rich”) and Fong's, Inc.
(“Fong”). Plaintiff Phoenix Entertainment
Partners, LLC (“Phoenix”) produces and
distributes karaoke accompaniment tracks under the
“Sound Choice” brand. Phoenix filed this action
alleging claims of trademark infringement, unfair
competition, and deceptive trade practices under federal and
state law arising from Brock's and Star's alleged use
of Sound Choice-branded karaoke tracks at venues operated by
Rich and Fong.
speaking, Phoenix's claims can be grouped into two
categories: (1) claims alleging that Brock's and
Star's activities cause a likelihood of confusion as to
the origin, sponsorship, or approval of goods (the
goods being the digital karaoke files), and (2) claims
alleging that Brock's and Star's activities cause a
likelihood of confusion as to the origin, sponsorship, or
approval of services (the services being the karaoke
services provided by Brock and Star). Phoenix further alleged
that Rich and Fong are vicariously and contributorily liable
for Brock's and Star's actions.
Court granted defendants' motions to dismiss
Phoenix's complaint. ECF No. 53. With respect to the
“goods” claims, the Court found that, as a matter
of law, Dastar Corp. v. Twentieth Century Fox Film
Corp., 539 U.S. 23 (2003) precludes Phoenix from
establishing a likelihood of confusion as to the origin,
sponsorship, or approval of the digital karaoke files. With
respect to the “services” claims, the Court noted
that, because these claims are not precluded by
Dastar, it is theoretically possible for Phoenix to
plead viable claims. But the Court held that Phoenix had
failed to plausibly allege a likelihood of confusion as to
the origin, sponsorship, or approval of the karaoke services
that Brock and Star provide. The Court therefore dismissed
all of Phoenix's federal Lanham Act claims with prejudice
and declined to exercise supplemental jurisdiction over
Phoenix's state-law claims.
matter is before the Court on Phoenix's motion to alter
or amend the judgment under Fed.R.Civ.P. 59(e) and for leave
to amend its complaint under Fed.R.Civ.P. 15(a)(2). For the
reasons that follow, the motion is denied.
MOTION TO AMEND COMPLAINT
dismissing Phoenix's services claims, the Court noted
that Phoenix did not allege that Brock or Star used
Phoenix's marks or trade dress to advertise or market
their karaoke services. ECF No. 53 at 8. Instead, Phoenix
merely alleged that more than half of the tracks played at
all of the karaoke shows in the United States originated from
its recordings. Id. The Court found these
allegations to be insufficient:
It is theoretically possible that a display of Phoenix's
marks and trade dress during a particular karaoke show could
lead to confusion over the origin, sponsorship, or approval
of the show itself. If, say, every single track played by
Star or Brock at a show displayed Phoenix's marks and
trade dress-and if Star or Brock also used Phoenix's
marks and trade dress in advertising the show-then it is
conceivable that a patron could be misled into believing that
Phoenix had something to do with the show. But Phoenix's
single generalized allegation about the frequency with which
its tracks are played at karaoke shows in the United States
is insufficient to state a plausible claim against Star or
Brock. To state such a claim, Phoenix would at a minimum have
to allege the frequency with which its marks and trade dress
are displayed at shows staged by Star and Brock. Without such
allegations, Phoenix's claims of confusion concerning the
karaoke services are too speculative.
Id. at 8-9.
the Court entered judgment, Phoenix essentially moved to
reopen the case so that it can amend its complaint and add
allegations concerning the frequency with which Phoenix's
marks have been displayed at shows staged by Brock and
is well-settled that plaintiffs ‘remain free where
dismissal orders do not grant leave to amend to seek vacation
of the judgment under Rules 59 and 60[b] and offer an amended
complaint in place of the dismissed complaint.'”
United States v. Mask of Ka-Nefer-Nefer, 752 F.3d
737, 742 (8th Cir. 2014) (quoting Quartana v.
Utterback, 789 F.2d 1297, 1300 (8th Cir. 1986)).
Nevertheless, such motions are “disfavored.”
United States ex rel. Roop v. Hypoguard USA, Inc.,
559 F.3d 818, 824 (8th Cir. 2009). In particular, unexcused
delay alone is a sufficient basis on which to deny a
post-judgment motion for leave to amend. Ash v. ...