Intrepidus, LLC v. Bivins
1:15-cv-07721
S.D.N.Y.Apr 28, 2017Background
- Intrepidus, LLC (on behalf of Seductive Approach LLC) alleges that managing member Glenn Bivins created a competing business (Attractive Approach), transferred Seductive Approach website content and assets to it, and used company funds for personal/other business expenses. Defendant Eric Monse allegedly advertised/promoted the infringing material.
- Seductive Approach holds U.S. copyright registrations for its website and three e-books; registrations were issued in Feb–Mar 2015. Plaintiff alleges copying began in April–May 2014.
- Defendants’ counsel withdrew; Bivins and Monse failed to appear or oppose the default-judgment motion. Clerk entered default; Plaintiff moved for default judgment under Fed. R. Civ. P. 55(b)(2).
- Court treated well-pleaded allegations as admitted and evaluated liability and appropriate relief for each cause of action.
- Court found sufficient evidence (including Bivins’s deposition admissions and website screenshots) to establish liability for copyright infringement (but not for statutory damages/fees due to late registrations), misappropriation, and conversion; tortious interference and fraud claims failed for lack of adequate pleading/standing.
- Remedies: permanent injunction and declaratory judgment of ownership for the four copyrighted works; default judgment on misappropriation and conversion with damages to be determined at an inquest; other claims denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Copyright infringement (works & website) | Bivins copied and used Seductive Approach website and three e-books; Monse aided by promoting the material; seeks injunction, statutory damages, fees | No appearance/argument presented | Liability found; permanent injunction granted; statutory damages and attorneys’ fees denied (registrations postdate alleged infringement) |
| Misappropriation / unfair competition | Bivins diverted corporate opportunity, assets, IP and expenditures to Attractive Approach for personal/competitive benefit | No appearance/argument presented | Liability found; default judgment granted; damages to be determined by inquest |
| Conversion (use of funds, transfer of site/content) | Bivins exercised unauthorized dominion over company property and funds (e.g., payment of $11,800 for new site, attorney fees) | No appearance/argument presented | Liability found; default judgment granted; damages to be determined by inquest |
| Tortious interference with prospective economic relations | Bivins interfered with Seductive Approach’s third-party relationships and sales | No appearance/argument presented; Court notes plaintiff failed to identify specific third parties | Claim denied for failure to plead existence/identity of business relationships |
| Declaratory judgment (ownership; strike applications) | Seek declaration of Seductive Approach ownership of copyrights and direction to Copyright Office to strike Bivins’ applications | No appearance/argument presented | Court declares Seductive Approach sole owner and that defendants infringed; request to order Copyright Office to strike applications denied without prejudice |
| Fraud and fraud in inducement | Bivins falsely promised to transfer preexisting and future IP to Seductive Approach inducing investment | No appearance/argument presented; Court finds Intrepidus (not Seductive Approach) was allegedly defrauded | Claims denied for lack of standing and insufficient factual allegations |
Key Cases Cited
- Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (elements of copyright infringement: ownership and copying)
- Au Bon Pain Corp. v. Artect, Inc., 653 F.2d 61 (2d Cir. 1981) (default admits well-pleaded allegations; court must still assess liability support)
- Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155 (2d Cir. 1992) (default constitutes concession of well-pleaded liability allegations)
- Knitwaves, Inc. v. Lollytogs Ltd., 71 F.3d 996 (2d Cir. 1995) (copyright registration timing affects entitlement to statutory damages and attorneys’ fees)
- Roy Export Co. v. Columbia Broadcasting System, Inc., 672 F.2d 1095 (2d Cir. 1982) (misappropriation/unfair competition principles)
- Wilton v. Seven Falls Co., 515 U.S. 277 (1995) (discretionary nature of declaratory judgments)