United States District Court, W.D. New York
For Lumetrics, Inc., Plaintiff: Andrew Peter Zappia, LEAD ATTORNEY, LeClairRyan, Rochester, NY; William J. McNichol, Jr., PRO HAC VICE, Reed Smith LLP, Philadelphia, PA; Richard A. McGuirk, LeClairRyan, Rochester, NY.
For Todd Blalock, Defendant: Steven E. Cole, LEAD ATTORNEY, Leclair Korona Giordano Cole LLP, Rochester, NY.
For Bristol Instruments, Inc., Intervenor Defendant: Kimberly I. Shimomura, Robert C. Weissflach, LEAD ATTORNEYS, Harter, Secrest and Emery, LLP, Rochester, NY.
DECISION AND ORDER
ELIZABETH A. WOLFORD, United States District Judge.
After attempting unsuccessfully on two separate occasions to pursue litigation in New York State Court, Plaintiff Lumetrics, Inc. (" Lumetrics" ) filed this federal lawsuit purporting to allege a one-count copyright infringement claim against its former employee, defendant Todd Blalock (" Blalock" ). Shortly after filing the federal lawsuit, Lumetrics filed a motion to obtain expedited discovery from both Blalock and non-party Bristol Instruments, Inc. (" Bristol" ). (Dkt. 6, 7 & 8). Blalock opposed the motion for expedited discovery and filed a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). (Dkt. 20). Bristol filed a motion to intervene in the litigation and opposed the motion for expedited discovery. (Dkt. 11 & 22).
The federal complaint is broad and sweeping in its allegations, declaring that Blalock " in concert with his employer Bristol, has infringed and is continuing to infringe Lumetrics' exclusive rights as copyright owner by copying, preparing derivative works, and distributing copies of the Copyrighted Software (including both registered and unregistered works) without Lumetrics' permission or consent." (Dkt. 1 at ¶ 51). Lumetrics has attempted to backtrack from the expansive nature of those allegations in responding to Blalock's motion to dismiss, now contending that it really is only pursuing claims based upon Blalock's alleged bootleg copying of its registered copyrighted software. Moreover, despite the repeated references to Bristol in the complaint, Lumetrics argues that it is not asserting any claim against Bristol.
The allegations in the complaint are quite different from Lumetrics' characterization of its claims in its response to Blalock's motion to dismiss. While the narrowed claims articulated in Lumetrics' opposition papers may potentially state a valid claim for copyright infringement against Blalock, the wide-ranging allegations in the complaint fail to state a claim. It would not be appropriate for this Court to attempt to dissect a potentially viable copyright infringement claim from the allegations of the one-count complaint as currently drafted. In fact, Lumetrics has not filed any motion for leave to file an amended complaint, even though it arguably concedes that certain aspects of its allegations are not viable. As a result, Blalock's motion to dismiss is granted without prejudice. Because the complaint has been dismissed,
the motions to intervene and for expedited discovery are denied without prejudice as moot.
II. FACTUAL BACKGROUND
Lumetrics develops, leases, and sells instruments using advanced optical techniques to measure the physical dimensions of objects. (Dkt. 1 at ¶ 7). Blalock was employed as an officer of Lumetrics from March 2003 through December 2011, holding the position of Chief Technical Officer. ( Id. at ¶ 2).
One of the instruments sold by Lumetrics is the OptiGauge[TM] device, which operates on interferometry principles and is utilized to measure such objects as contact lenses and intraocular lenses. ( Id. at ¶ 8). During Blalock's employment, Lumetrics was developing a project known as " OptiGauge II," a more affordable version of the OptiGauge[TM]. ( Id. at ¶ 10).
The complaint alleges that Lumetrics' interferometric measuring devices use sophisticated software developed by Lumetrics, consisting of both registered and unregistered copyrights. ( Id. at ¶ 11 & Dkt. 1-1). The complaint does not distinguish between the software with registered copyrights and the software where the copyright registrations are pending; instead referring to the software collectively as " the Copyrighted Software." ( Id.).
Lumetrics alleges that as former Chief Technical Officer, Blalock not only participated in the development and implementation of the Copyrighted Software, but he also had full access to the design and market studies surrounding the proposed OptiGauge II project. ( Id. at ¶ ¶ 20-22, 25).
Blalock's employment with Lumetrics was terminated in October 2011. ( Id. at ¶ 27). Blalock allegedly informed a coworker, Glen Hallit, that he had taken " the most recent version of that developed software (for Lumetrics' OptiGauge II optical interferometer project) with him when he left Lumetrics so that he could use it in the optical interferometer that he would make to compete with Lumetrics." (Dkt. 1-2 at ¶ 7). On April 3, 2012, six months after Blalock was terminated, he allegedly informed Mr. Hallit that he had successfully created a prototype of an optical interferometer. (Dkt. 1-2 at ¶ 11). Approximately five months later, and almost one year after the termination of his employment with Lumetrics, Blalock began working for Bristol in September 2012. (Dkt. 1 at ¶ 33).
Three months later, Bristol introduced its " 157 Series Optical Thickness Gauge" interferometric measuring device. ( Id. at ¶ 34). According to the complaint, Bristol had not previously sold interferometric devices. ( Id. at ¶ 36). Plaintiff alleges that " Blalock, in concert with his employer Bristol, has infringed and is continuing to infringe Lumetrics' exclusive rights as copyright owner by copying, preparing derivative works, and distributing copies of the Copyrighted Software without Lumetrics' permission or consent." ( Id. at ¶ 51). Although not alleged in the complaint, the papers submitted in connection with the pending motions indicate that as of April 28, 2014, Blalock is no longer employed by Bristol. (Dkt. 11-10 at ¶ 10). The circumstances surrounding Blalock's termination of employment with Bristol are unclear.
III. PROCEDURAL BACKGROUND
Lumetrics filed this federal lawsuit on April 4, 2014. (Dkt. 1). On April 23, 2014, Lumetrics filed an emergency motion for expedited discovery contending that it needed narrowly tailored discovery to " determine the extent and scope of Mr. Blalock's use and ...