Emmerich Newspapers, Incorporated v. Smartnews International, Inc.
3:23-cv-00118
S.D. Miss.Jul 11, 2025Background
- Emmerich Newspapers, Inc., a Mississippi-based chain, sued SmartNews International, Inc. (and related entities and executives) for alleged widespread copyright infringement and violation of the DMCA.
- Emmerich alleges SmartNews systematically copied and republished thousands of its articles (many with copyright registrations) on its app, despite multiple cease and desist notices.
- SmartNews disputes the merits, claiming Emmerich's registrations cover works it doesn't own, that the copyright claims are being used for windfall statutory damages, and that SmartNews offers a free, legitimate news app.
- Procedurally, the case involves a flurry of contested motions regarding amending complaints, joining additional defendants (including corporate officers and a parent company), discovery splits and stays, and methods of service for a foreign defendant.
- The dispute features evolving facts about the identity and roles of defendants and executives, as reflected in late-filed affidavits and arguments about delay and prejudice.
- The litigation is in early discovery, with deadlines repeatedly reset or stayed pending resolution of these threshold procedural and party issues.
Issues
| Issue | Emmerich's Argument | SmartNews' Argument | Held |
|---|---|---|---|
| Leave to Amend Complaints and Add Defendants | New facts reveal joint/several liability; no dilatory motive; amendment key | Amendments untimely, unnecessary, futility, and prejudicial | Granted: amendments allowed |
| Joinder of SmartNews, Inc. (parent) as Defendant | Complete relief requires joining operator; role unclear, discovery needed | Joinder fine only if substitution; current defendant improper party | Granted: join SmartNews, Inc. |
| Joinder of Corporate Officers (Suzuki/Hamamoto) | Affidavit shows control/financial interest; well-pled under Fifth Circuit | No personal liability w/o veil-piercing; mere role as officer/corporate | Granted: claims not clearly futile |
| Bifurcation of Discovery | Would be prejudicial, inefficient, and delay case unduly | Needed to resolve copyright ownership threshold first, avoids waste | Denied: discovery not bifurcated |
| Alternative Service under FRCP 4(f)(3) | Service on U.S. counsel efficient and aligns with similar case law | Hague Convention requires first attempt via convention; counsel can't accept | Denied without prejudice: try Hague first |
| Motion for Sur-Reply (and to Strike Sur-Reply) | Needed to address new matters in reply; offers important context | Filing improper without leave, raises new facts impermissibly | Granted: sur-reply allowed; motion to strike denied |
Key Cases Cited
- Grant v. News Group Boston, Inc., 55 F.3d 1 (1st Cir. 1995) (Leave to amend post-deadline requires a valid reason for delay)
- Gregory v. Mitchell, 634 F.2d 199 (5th Cir. 1981) (Factors for leave to amend and burden on late filers)
- S & W Enters., L.L.C. v. SouthTrust Bank of Ala., 315 F.3d 533 (5th Cir. 2003) (Good cause standard for amendment after scheduling order deadline)
- Foman v. Davis, 371 U.S. 178 (1962) (Standards for granting or denying leave to amend)
- Luxottica Grp., S.p.A. v. Lollis LLC, 2021 WL 5074653 (S.D. Miss. 2021) (Corporate officers can be liable for copyright infringement)
- Mead Johnson & Co. v. Baby’s Formula Svc., Inc., 402 F.2d 19 (5th Cir. 1968) (Individual liability in copyright cases)
- Eng’g Dynamics, Inc. v. Structural Software, Inc., 26 F.3d 1335 (5th Cir. 1994) (Copyright liability of corporate executives without veil-piercing)
- Rio Props., Inc. v. Rio Int’l Interlink, 284 F.3d 1007 (9th Cir. 2002) (Alternative service under Rule 4(f)(3) not a last resort)