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Chicago IP Litigation Tracking Northern District of Illinois IP Cases

Tag Archives: Flava Works

General Discovery Objections are “Impermissible”

Posted in Discovery

Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517, Slip Op. (N.D. Ill. Oct. 24, 2013) (Grady, Sen. J.).

Judge Shadur granted in part plaintiff Flava Works’ motion to compel responses to discovery requests.  Of particular note, the Court held as follows:

  • Neither Flava Work’s complaint nor the Seventh Circuit’s decision limited Flava Work’s claims to its backup functionality.  Defendant’s therefore, could not limit their responses to the backup functionality.
  • While the Court did not strike defendants’ general objections, it disregarded them as “impermissible.”  Based upon their lack of specificity, they did “not accomplish anything useful.”  Documents withheld based upon general objections were to be identified and produced.
  • A present tense interrogatory seeking a user count was sufficiently answered with a present user count.  The interrogatory was fully answered without historic user information.
  • Defendants need not identify Bates ranges of responsive documents where the documents were produced as they were kept in the normal course of business, pursuant to Fed. R. Civ. P. 34(b)(2)(E)(i).


Illinois Does Not Recognize Tortious Interference Based Upon Wrongfully Filed Suits

Posted in Pleading Requirements

Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6571, Slip Op. (N.D. Ill. Sep. 3, 2013) (Grady, Sen. J.).

Judge Grady granted in part plaintiff Flava Works’ Fed. R. Civ. P. 12(b)(6) motion to dismiss defendants’ (collectively “myVidster”) tortious interference and Digital Millenium Copyright Act (“DMCA”) claims in this copyright infringement suit involving videos posted on websites.  To the extent the tortious interference claim was based upon the alleged wrongful filing of this suit it was dismissed because Illinois does not recognize a tortious interference claim based upon wrongfully filed suits.  The claim, however, survived to the extent it was based upon Flava Works allegedly misrepresenting myVidster’s intellectual property infringement with the intent of causing myVidster’s server suppliers to terminate contracts with myVidster.

With respect to its DMCA claim, myVidster pled that Flava Works knowingly misrepresented that allegedly infringing content was available on myVidster to “improperly exaggerate the actual amount of infringing content available” on the website.  Those allegations were sufficient to meet the intent requirement.

Interactive Website Does Not Create Personal Jurisdiction

Posted in Jurisdiction

Flava Works, Inc. v. Gunter d/b/a myVidster.com, No. 10 C 6517, Slip Op. (N.D. Ill. Dec. 13, 2012) (Shadur, Sen. J.).

Judge Shadur granted defendant LeaseWeb USA (“LeaseWeb”) Fed. R. Civ. P. 12(b)(2) & (6) motion to dismiss for lack of personal jurisdiction and failure to state a claim.  Plaintiff Flava Works pointed largely to Lease Web’s interactive website.  But that website was not enough for general or specific jurisdiction.  And LeaseWeb’s single Illinois customer was similarly insufficient.  FlavaWorks offered no argument or proof that the customer was related to the alleged copyright infringement in this case.

The Court also dismissed LeaseWeb because FlavaWork’s complaint alleged no facts that would make it liable for copyright infringement.


Counterclaim Need Not Plead Facts to Overcome Statute of Limitations Affirmative Defense

Posted in Pleading Requirements

Flava Works, Inc. v. Momient, No. 11 C 6306, Slip Op. (N.D. Ill. Mar. 18, 2013) (Shadur, Sen. J.).

Judge Shadur denied plaintiff Flava Works’ Fed. R. Civ. P. 12(b)(6) motion to dismiss defendant’s copyright infringement counterclaims.  The fact that defendant did not plead the dates of the alleged copyright infringement was not fatal to the counterclaims.  Flava Work’s statute of limitations argument was an affirmative defense and defendant was not required to plead facts refuting it as part of its counterclaims.

The Court also noted that pro se defendant’s periodic failure to appear for hearings has caused the case to move or not move in “fits and starts.”  The Court “cautioned [defendant] . . . that such inattention could prove costly if repeated.”


Court Sua Sponte Orders Production of Evidence and a Hearing on a Copyright Issue

Posted in Local Rules, Uncategorized

Flava Works, Inc. v. Momient, No. 11 C 6306, Slip Op. (N.D. Ill. Apr. 1, 2013) (Shadur, Sen. J.).

Judge Shadur, after reading plaintiff FlavaWorks’ answer to defendant’s copyright counterclaims, sua sponte ordered FlavaWorks to produce a copy of the Commission Work Agreement that FlavaWorks alleged assigned all rights in the videos and photographs at issue to FlavaWorks.  The Court reasoned that deciding the issue of whether the Agreement transferred defendant’s rights in his works to FlavaWorks would move a case forward that had otherwise been largely a series of “procedural skirmishes.”  To the extent that there was not sufficient documentary evidence to establish the necessary facts, the Court asked the parties to submit a brief statement regarding how the issue could be effectively brought before the Court.



Forum Selection Clause Creates Jurisdiction

Posted in Jurisdiction

Flava Works, Inc. v. Rowader, No. 12 C 7181, Slip Op. (N.D. Ill. Nov. 16, 2012) (Lefkow, J.).

Judge Lefkow denied defendant’s Fed. R. Civ. P. 12(b)(2) motion to dismiss plaintiff Flava Works copyright suit for lack of jurisdiction and improper venue.  Defendant a California citizen who did not direct any business at Illinois would not have been subject to general or personal jurisdiction in Illinois.  But defendant accepted a valid forum selection clause including  Chicago by using Flava Works’ website.  While it could be considered an un-negotiable contract of adhesion, defendant could have used another website with a different forum selection clause.

Transfer Warranted Where All Parties are in Florida

Posted in Jurisdiction

Flava Works, Inc. v. Terry, No. 12 C 1884, Slip Op. (N.D. Ill. Oct. 11, 2012) (Coleman, J.).

Judge Coleman granted defendant’s motion to transfer this copyright and trademark infringement case to the M.D. Florida.  As an initial matter, defendant did not waive the issue of personal jurisdiction because the answer contested it.  While there was at least one witness and some documents in Illinois, defendant, much of plaintiff’s business and many of the documents were in Florida.  The Court, therefore, transferred the case to Florida.

Pro Se Answer Must Apply With Rules

Posted in Pleading Requirements

Flava Works, Inc. v. Momient, No. 11 C 6306, Slip Op. (N.D. Ill. Aug. 6, 2012) (Shadur, Sen. J.).

 Judge Shadur vacated a default judgment entered against defendant based upon defendant’s explanation for his non-appearance.  But the Court warned that defendant must revise his proposed answer to: 

  • Remove denials of statements for which defendant lacked information and belief; and 
  • Revised his affirmative defenses down from its list of 21. 



Pro Se Answer Must Still Comply With Rules

Posted in Pleading Requirements

Flava Works, Inc. v. Momient, No. 11 C 6306, Slip Op. (N.D. Ill. July 16, 2012) (Shadur, Sen. J.).

Judge Shadur sua sponte struck defendants’ pro se answer pursuant to Local Rule 5.2(e) for failure to comply with the Local Rule 5.2(c) font and margin requirements.  The Court also identified the following nonexhaustive list of problems with the answer:

  • In violation of Fed. R. Civ. P. 8(b)(5), the defendant denied statements for which it lacked information and belief.
  • Defendants’ laundry list of 25 affirmative defenses was “unacceptable” for not providing sufficient factual notice.