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Phoenix Entertainment Partners, LLC v. Star Music, Inc.

United States District Court, D. Minnesota

November 28, 2017

PHOENIX ENTERTAINMENT PARTNERS, LLC, Plaintiff,
v.
STAR MUSIC, INC., a Minnesota corporation d/b/a Star Music & The Singing Express; TRACY BROCK, a Minnesota individual d/b/a Star Music; RICH MANAGEMENT, INC., a Minnesota corporation d/b/a Bogart's/Apple Place Bowl; and FONG'S, INC., a Minnesota corporation d/b/a David Fong's Restaurant, Defendants.

          David 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.

          ORDER

          Patrick J. Schiltz United States District Judge

         Defendants 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.

         Broadly 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.

         The 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.

         This 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.

         I. MOTION TO AMEND COMPLAINT

         In 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.

         After 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 Star.[1]

         “[I]t 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. ...


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