Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

SYKEL ENTERPRISES, INC. v. PATRA

March 31, 2004.

SYKEL ENTERPRISES, INC., Plaintiff, -against- PATRA, LTD., PAT DIPIETRANTONIO, individually, THE MAY DEPARTMENT STORES COMPANY, ABC RETAILER CORPORATIONS numbered 1-50, said names being fictitious and unknown, and XYZ PRINTER CORPORATIONS, numbered 1-50, said names being fictitious and unknown, Defendants


The opinion of the court was delivered by: THOMAS GRIESA, Senior District Judge

Opinion

This is an action for copyright infringement and fraud brought by a fabric distributer against garment manufacturers and retailers pursuant to the Copyright Act, 17 U.S.C. § 101 et seq., and state law. Plaintiff Sykel Enterprises, Inc. ("Sykel") is a New York corporation that imports and distributes fabric patterns and printed fabric. Defendant Patra, Ltd. ("Patra") is a New York corporation doing business as a manufacturer of women's garments. Defendant Pat DiPietrantonio ("DiPietrantonio") is the owner of Patra. Defendant The May Department Stores Company ("May") is the owner and operator of various department stores throughout the country, including Lord & Taylor. Also named as defendants in the action, but not relevant to the current motion, Page 2 are unknown retailer defendants, ABC Retailer Corporations, and unknown printer defendants, XYZ Printer Corporations.

Patra, May, and DiPietrantonio move to compel arbitration of Sykel's copyright and fraud claims against Patra, to dismiss Sykel's copyright claims against Patra and May insofar as they seek attorneys' fees and costs, and to dismiss Sykel's fraud claim against DiPietrantonio. The motion to compel arbitration is denied, the motion to dismiss the attorney's fees and costs portions of the copyright claims is granted in part, and the motion to dismiss the DiPietrantonio fraud claim is granted.

  THE COMPLAINT

  The complaint alleges that Sykel is a bulk fabric distributer whose business includes the importation of fabric patterns, the printing of those patterns on fabric, and the sale of the printed fabrics to garment manufacturers. The complaint states that upon purchasing a fabric pattern from a designer, Sykel also acquires all rights associated with the pattern, including but not limited to its copyright. Sykel's sales force solicits and is solicited by manufacturers throughout the country to meet and present samples of fabrics bearing patterns owned by Sykel.

  The complaint alleges that on or about November 27, 2001 Sykel purchased a pattern titled ROMA 3465 JOSS 1025 ("Pattern 3926") from a French designer. The complaint alleges that in Page 3 addition to the pattern itself, Sykel purchased all of the designer's rights in the pattern.

  The complaint alleges that in or around April 2002 Patra contacted John Feeney, a Sykel salesman, and expressed interest in viewing patterns and fabrics appropriate for evening dresses known in the industry as "after-five" dresses. Subsequently, Feeney met with Patra's in-house designer and presented several appropriate patterns and fabrics, including Pattern 3926.

  The complaint alleges that soon after this meeting, a representative of Patra contacted Feeney to inform him that Patra was interested in Pattern 3926, and to request sample yardage of Pattern 3926 printed on espresso (brown) stretch velvet. On or about April 30, 2002, Sykel shipped four yards of Pattern 3926 printed on espresso stretch velvet, and two yards of solid espresso stretch velvet to Patra. This transaction was memorialized in a sales agreement dated April 26, 2002. At the bottom of the agreement was a paragraph stating, "This contract is subject to all terms and conditions on this and the reverse side thereof, including the provisions of paragraph 8 providing for arbitration of all disputes."

  The complaint attaches the face of this document, but does not attach the reverse side, which is said to contain the terms of the contract. This was appropriate as far as the plaintiff was concerned, because plaintiff is not suing under the sales Page 4 contracts per se. However, defendants in their motion papers did not supplement the record by including this reverse side with the terms of the contract. As will be described later, the issue of whether Patra is or is not entitled to arbitration depends upon whether claims in this case do or do not have a relationship to the terms of the contract. Although Patra seeks arbitration, it has not furnished the contracts itself.

  A Sykel sales invoice dated April 30, 2002 was also issued. At the bottom of the invoice were several "fine print" terms, including an arbitration clause: "All controversies arising out of, or relating to this contract or any modification thereof or the breach thereof shall be settled by arbitration, in New York, before and in accordance with the Rules of the American Arbitration Association." The parties treat this as the relevant arbitration clause in the motion papers.

  The complaint alleges that Patra contacted Sykel on three additional occasions — in or around the beginning of May 2002, in or around the middle of May 2002, and in or around June 2002 — to reiterate interest in Pattern 3926 and request that additional sample yardage of the pattern printed on espresso stretch velvet be shipped. Sykel complied on each occasion, shipping eleven additional yards of Pattern 3926. Each of these transactions is memorialized in sales contracts identical to that described above — one dated April 30, 2002, another May 22, 2002, and the final Page 5 contract bearing no date. Each transaction also was memorialized in an invoice identical to the invoice described above, dated May 7, 2002, May 22, 2002, and July 16, 2002.*fn1

  Thus, between April 30, 2002 and July 16, 2002 Patra received from Sykel a total of fifteen yards of Pattern 3926 printed on espresso stretch velvet.

  The complaint alleges that soon after Patra received the final shipment of Pattern 3926, DiPietrantonio contacted Feeney and inquired whether it was possible to obtain more solid espresso stretch velvet to match the fabric on which Pattern 3926 had been printed for prior shipments. Feeney replied that the solid color was available. Later during the same conversation DiPietrantonio requested a price quote for Pattern 3926 printed on espresso stretch velvet, as had been previously shipped. The complaint states that Feeney furnished DiPietrantonio with the requested price quote, and that DiPietrantonio indicated that he would let Feeney know whether he was interested in placing an order. The complaint does not specify whether the furnishing of the price quote and DiPietrantonio's final remarks occurred during or subsequent to the above-described telephone conversation.

  It is relevant to note that the statements described above, Page 6 and contained in paragraphs 27 through 29 of the complaint, are presented differently in paragraphs 80 and 81 of the complaint. While paragraphs 27 through 29 of the complaint, describing the conversation between DiPietrantonio and Feeney, contain no allegations other than those set forth above, paragraph 80 of the complaint states that DiPietrantonio represented to Sykel that he "was interested in placing an order with the Plaintiff for espresso stretch velvet bearing Pattern 3926." Paragraph 81 states that "DiPietrantonio affirmatively represented to Plaintiff that [he] was interested in placing an order with Plaintiff for espresso stretch velvet bearing Pattern 3926." These statements are clearly different from the complaint's earlier allegations, and it is unclear whether paragraphs 80 and 81 add ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.