Free Amended Complaint - District Court of California - California

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 1 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

TORY M. PANKOPF, ESQ., SBN 202581 LAW OFFICES OF TORY M. PANKOPF 611 Sierra Rose Drive Reno, Nevada 89511 Telephone: (530) 725-8263 Facsimile: (530) 725-8264 [email protected] Attorneys for Plaintiff PROLINE CONCRETE TOOLS, INC.

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

CASE NO: 07 CV 2310 LAB AIB PROLINE CONCRETE TOOLS, INC., a California Corporation, AMENDED COMPLAINT Plaintiff, vs. GORD DENNIS, an individual, CADILLAC CONCRETE PRODUCTS, LTD., an unknown business form located in British Columbia, Canada, CREATIVE URETHANE CONCEPTS, INC., a South Carolina Corporation, CLYDE COBB, an individual, UNIVERSAL BUILDING PRODUCTS, INC., an Illinois Corporation, LEGACY DECORATIVE CONCRETE SYSTEMS, INC., an Illinois Corporation, STEPHEN JOHNSON, an individual, CHARLES KREUTZER, an individual, SOLOMON COLORS, INC., an Illinois Corporation, RICHARD SOLOMON, an individual, GINA SOLOMON, an individual, and DOES 1 through 20, inclusive, Defendants. 1. Copyright Infringement (17 U.S.C. §§ 101 et. seq.) 2. Injunction Relief DEMAND FOR JURY TRIAL
Date: Time: Dept:

27 28
Law Offices of

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

-1Amended Complaint-Copyright Infringement

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 2 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

COMPLAINT FOR DAMAGES 1. Plaintiff PROLINE CONCRETE TOOLS, INC., a California Corporation (hereinafter "Plaintiff" or "Proline"), by and through its attorney, Tory M. Pankopf, complains against defendants CREATIVE URETHANE CONCEPTS, INC., a South Carolina Corporation, CLYDE COBB, an individual, UNIVERSAL BUILDING PRODUCTS, INC., an Illinois Corporation, GORD DENNIS, an individual, CADILLAC CONCRETE PRODUCTS, LTD., an unknown business form located in British Columbia, Canada, LEGACY DECORATIVE CONCRETE SYSTEMS, INC., an Illinois Corporation, STEPHEN JOHNSON, an individual, CHARLES KREUTZER, an individual, SOLOMON COLORS, INC., an Illinois Corporation, RICHARD SOLOMON, an individual, GINA SOLOMON, an individual, and DOES 1 through 20, inclusive (collectively, "Defendants"). JURISDICTION AND VENUE 2. This Court has jurisdiction over the subject matter of this action pursuant to 28 U.S.C. §§ 1331 and 1338(a). 3. This Court has personal jurisdiction over all the Defendants by virtue of their transacting, doing, and soliciting business in this District, and because a substantial part of the relevant events occurred in this District and because a substantial part of the property that is the subject of this action is situated here. Venue is proper in the Southern District of California under 28 U.S.C. § 1391. PARTIES 4. Plaintiff is a California corporation with its principal place of business at, Oceanside, California. Proline, among other things, creates and designs dimensional sculptures used to decorate concrete surfaces. Proline is the leader in high quality decorative concrete stamps, textures, borders, and hand tools. Proline's products are distributed throughout the State of California, in interstate commerce and international commerce. 5. On information and belief, defendant CREATIVE URETHANE CONCEPTS, INC. ("Creative Urethane"), is a South Carolina Corporation with its principal place of business in Columbia, South Carolina, and a mailing address of 907 Garland Street, Columbia, South -2Amended Complaint-Copyright Infringement

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 3 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

Carolina, 29201-4613. On information and belief, Creative Urethane is engaged in the business of, among other things, selling decorative concrete stamps. On further information and belief, Creative Urethane attracts customers to its business by copying Proline's copyrighted works, in their entirety, selling them, and without their owner's consent. 6. On information and belief, defendant CLYDE COBB ("Cobb") is an officer of Creative Urethane. On information and belief, Cobb manages Creative Urethane, governs and controls the infringing conduct of Creative Urethane, and is aware of the Plaintiff's rights. 7. On information and belief, defendant UNIVERSAL BUILIDNG PRODUCTS, INC. ("Universal"), is an Illinois Corporation, with its principal place of business in Bellwood, Illinois, and a mailing address of 840 25th Avenue, Bellwood, Illinois, 60104. On information and belief, Universal is engaged in the business of, among other things, selling decorative concrete stamps. On further information and belief, Universal attracts customers to its business by copying Proline's copyrighted works, in their entirety, selling them, and without their owner's consent. 8. On information and belief, defendant LEGACY DECORATIVE CONCRETE SYSTEMS, INC. ("Legacy"), is an Illinois Corporation, with its principal place of business in Springfield, Illinois, and a mailing address of 1231 So. 8th Street, Springfield, Illinois, 62703. On information and belief, Legacy is a wholly owned subsidiary of Solomon Colors, Inc. Legacy is a subsidiary corporation of defendant SOLOMON COLORS, INC. On information and belief, Legacy is engaged in the business of, among other things, selling decorative concrete stamps. On further information and belief, Legacy attracts customers to its business by buying and/or copying Proline's copyrighted works, in their entirety, and selling them without their owner's consent. 9. On information and belief, defendants STEPHEN JOHNSON and CHARLES

KREUTZER ("Johnson" and "Kreutzer") are officers of Legacy. On information and belief, Johnson and Kreutzer manage Legacy, govern and control the infringing conduct of Legacy, and are aware of the Plaintiff's rights.

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

-3Amended Complaint-Copyright Infringement

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 4 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

10. On information and belief, defendant SOLOMON COLORS, INC. ("Solomon"), is an Illinois Corporation, with its principal place of business in Springfield, Illinois, and a mailing address of 4050 Color Plant Road, Springfield, Illinois, 62703. On information and belief, Solomon is engaged in the business of, among other things, selling decorative concrete stamps through its subsidiary Legacy. On further information and belief, Solomon attracts customers to its business by copying Proline's copyrighted works, in their entirety, and selling them without their owner's consent. 11. On information and belief, Legacy is a wholly owned subsidiary of Solomon. On information and belief, Solomon is vicariously liable for the copyright infringing activity of its subsidiary, Legacy. On information and belief, Solomon has a direct financial interest in the infringing activity and the right and ability to supervise Legacy. 12. On information and belief, Solomon is liable to Plaintiff for contributory On information and belief, Solomon has knowingly aided, induced and/or

infringement.

contributed to the copyright infringement of its subsidiary, Legacy. 13. On information and belief, defendants RICHARD SOLOMON and GINA

SOLOMON ("R. Solomon" and "G. Solomon") are officers of Solomon. On information and belief, R. Solomon and G. Solomon manage Solomon, govern and control the infringing conduct of Solomon and Legacy, and are aware of the Plaintiff's rights. 14. On information and belief, defendant CADILLAC CONCRETE PRODUCTS, LTD. ("Cadillac"), is an unknown business form, with its principal place of business in Burnaby, British Columbia, Canada, and a mailing address of 102-6968 Russell Avenue, Burnaby, BC, Canada, V5J 4R9. On information and belief, Cadillac is engaged in the business of, among other things, selling decorative concrete stamps. On further information and belief, Cadillac attracts customers to its business by copying Proline's copyrighted works, in their entirety, selling them, and without their owner's consent. 15. On information and belief, defendant GORD DENNIS is doing business as CADILLAC CONCRETE PRODUCTS, LTD. ("Dennis"), with his principal place of business in Burnaby, British Columbia, Canada, and a mailing address of 102-6968 Russell Avenue, -4Amended Complaint-Copyright Infringement

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 5 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

Burnaby, BC, Canada, V5J 4R9. On information and belief, Dennis is engaged in the business of, among other things, selling decorative concrete stamps. On further information and belief, Dennis attracts customers to his business by copying Proline's copyrighted works, in their entirety, selling them, and without their owner's consent. On information and belief, Dennis is the sole owner of Cadillac and directly copied Plaintiff's decorative concrete stamps or authorized their copying. On information and belief, Dennis is an officer of or the sole proprietor of Cadillac. On information and belief, Dennis manages Cadillac, governs and controls the infringing conduct of Cadillac, and is aware of the Plaintiff's rights. 16. At all relevant times mentioned here, Defendants and DOES 1 through 20, were the agent, employee, partner, officer, and/or co-conspirator of each of the remaining defendants, and in doing the things alleged here, were acting in the course and scope of that agency employment and/or conspiracy and with the consent of each of their co-defendants. 17. The true names and capacities, whether individual, corporate, or otherwise, of the Defendants and Defendants sued as Does 1 through 20 are unknown to Plaintiff, who, therefore, sues them by such fictitious names. At such time as their true names and capacities have been ascertained, Plaintiff will seek leave of Court to amend this Complaint accordingly. On information and belief, Plaintiff alleges that each Defendant and each Doe Defendant was the agent, representative, or employee of each of the other Defendants and was acting at all times within the scope of his/her agency or representative capacity, with the knowledge and consent of the other Defendants, and that each Defendant and Doe Defendant is liable to Plaintiff in connection with one or more of the claims sued upon here and are responsible in some manner for the wrongful acts and conduct alleged here.

GENERAL ALLEGATIONS OF FACT 18. On or about 1991, Plaintiff created certain decorative concrete stamps. 19. The Plaintiff owns the copyrights to the decorative concrete stamps that are the subject of this litigation.

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

-5Amended Complaint-Copyright Infringement

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 6 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

20. For their own profit and advantage the Defendants have misappropriated Plaintiff's copyrighted decorative concrete stamps. 21. Plaintiff has demanded that Defendants stop copying and/or selling Plaintiff's copyrighted decorative stamps without its consent. Defendants have refused to cease their infringing activities. 22. Defendants' conduct has been willful. FIRST CLAIM FOR RELIEF (Federal Copyright Infringement) 23. Plaintiffs incorporate by reference all the allegations of paragraphs 1 through 22, inclusive. 24. Plaintiff owns copyrighted decorative concrete stamps. 25. The Plaintiff has complied with 17 U.S.C. §§ 409 and 411 regarding its decorative concrete stamps. 26. Jeff Irwin and Paul Sowa are the authors of the decorative concrete stamps who have transferred all their rights to the Plaintiff. 27. Plaintiff has complied in all respects with 17 U.S.C. §§ 101 et seq., and secured the exclusive rights and privileges in and to the copyrights of the above-referenced works. Plaintiff has been and still is the sole proprietor of all rights, title, and interest in and to the copyrights in their respective works as referenced above. 28. Defendants' conduct violates the exclusive rights belonging to Plaintiff as owner of the copyrights in its decorative concrete stamps, including without limitation Plaintiff's rights under 17 U.S.C. § 106. 29. On information and belief, Plaintiff alleges that, as a direct and proximate result of their wrongful conduct, Defendants have realized and continue to realize profits and other benefits rightfully belonging to Plaintiff. Accordingly, Plaintiff seeks an award of damages pursuant to 17 U.S.C. §§ 504 and 505. 30. Defendants' infringing conduct has also caused and is causing substantial and irreparable injury and damage to Plaintiff in an amount not capable of determination, and, -6Amended Complaint-Copyright Infringement

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 7 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

unless restrained, will cause further irreparable injury, leaving the Plaintiff with no adequate remedy at law. 31. On information and belief, Defendants have willfully engaged in, and are willfully engaging in, the acts complained of with oppression, fraud, and malice, and in conscious disregard of the rights of Plaintiff. Plaintiff is, therefore, entitled to the maximum statutory damages allowable. SECOND CLAIM FOR RELIEF (Injunctive Relief) 32. Plaintiffs incorporate by reference all the allegations of paragraphs 1 through 31, inclusive. 33. Defendants,' and each of them, willful misappropriation of Plaintiff's copyrights has caused and will continue to cause Plaintiff immediate and irreparable harm that requires the Court to evoke its equitable power and issue an order protecting Plaintiff from any further harm. The Plaintiff will suffer irreparable harm if the preliminary injunction is not issued; there is a substantial likelihood the Plaintiff will prevail on the merits, or, there is a serious issue going to the merits and the balance of harm between issuance and non-issuance of the preliminary injunction weighs in favor of the Plaintiff; and issuance of the injunction is in the public interest. Prayer for Relief THEREFORE, Plaintiff prays for judgment against each Defendant as follows: A. Declaring that Defendants' unauthorized conduct violates Plaintiff's rights under common law and the Federal Copyright Act; B. Immediately and permanently enjoining Defendants, their officers, directors, agents, servants, employees, representatives, attorneys, related companies, successors, assigns, and all others in active concert or participation with them from copying and reselling any of Plaintiff's copyrighted decorative concrete stamps without consent or otherwise infringing Plaintiff's copyrights or other rights in any manner (Injunctive relief pursuant to 17 U.S.C. §§ 502 and 503.; -7Amended Complaint-Copyright Infringement

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 8 of 9

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

C. Ordering Defendants to account to Plaintiff for all gains, profits, and advantages derived by Defendants by their infringement of Plaintiff's copyrights or such damages as are proper, and since Defendants intentionally infringed plaintiff's copyrights, for the maximum allowable statutory damages for each violation; D. Awarding Plaintiff actual and/or statutory damages for Defendants' copyright infringement in an amount to be determined at trial; E. Awarding Plaintiff its costs, reasonable attorneys' fees, and disbursements in this action, pursuant to 17 U.S.C. § 505; and F. Awarding Plaintiff such other and further relief as is just and proper. JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable.

DATED: This 30th day of April, 2008

Law Offices of Tory M. Pankopf

By:

/S/ TORY M. PANKOPF TORY M. PANKOPF, ESQ. Attorney for Plaintiff PROLINE CONCRETE TOOLS, INC.

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

-8Amended Complaint-Copyright Infringement

Case 3:07-cv-02310-LAB-AJB

Document 16

Filed 04/30/2008

Page 9 of 9

1 2 3 4 5

PROOF OF SERVICE STATE OF NEVADA, COUNTY OF WASHOE: I am employed in the County of Washoe, State of Nevada. I am over the age of 18 and am not a party to the within action. My business address is: 611 Sierra Rose Drive, Reno, Nevada 89511 On April 30, 2008, I served the following document entitled:

6
Amended Complaint

7
on the following parties in this action:

8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Law Offices of

ATTORNEY FOR DEFENDANTS Solomon Colors, Inc. and Legacy Decorative Concrete Systems, Inc.
Gregory A Garbacz Klinedinst PC 501 West Broadway. # 600 San Diego, CA 92101

ATTORNEY FOR DEFENDANTS Solomon Colors, Inc. and Legacy Decorative Concrete Systems, Inc.
Keith J. Grady Robert S. Kenney Polsinelli Shalton Flanigan Suelthaus PC 100 South Fourth Street, # 1100 St. Louis, MO 63102

(X) BY U.S. MAIL/FIRST CLASS [ Rule Civ. Proc. Rule 5(b)] : by placing a true copy thereof enclosed in a sealed envelope with postage thereon fully prepaid, in United States mail in the State of Nevada at Reno, addressed as set forth above. I am readily familiar with the firm's practice of collection and processing correspondence for mailing. (X) BY ELECTRONIC FILING: I caused all of the pages of the above-entitled document(s) to be electronically filed and served on designated recipients through the Electronic Case Filing system for the above-entitled case. The file transmission was reported as successful and a copy of the Electronic Case Filing Receipt will be maintained with the original document(s) in our office. () BY FACSIMILE: I caused such document to be sent via facsimile or machine to each person on the attached mailing list. () BY PERSONAL SERVICE: I caused such document to be delivered by hand to the party prior to the hearing on the motion as ordered by the court. ( ) STATE: I declare under penalty of perjury under the laws of the State of California that the above is true and correct. ( X ) FEDERAL: I declare that I am employed in the office of a member of the bar of this court at whose direction the service was made. Executed on April 30, 2008, at Reno, Nevada.

/S/ Patty Pankopf Patty Pankopf

Tory M. Pankopf
611 Sierra Rose Drive Reno, NV 89511 (530) 725-8263

-9Amended Complaint-Copyright Infringement