COVETRUS INC et al v. ACTIAN CORPORATION

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UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
COVETRUS, INC., and 	)
VETERINARY DATA SERVICES, INC., 	)
)
Plaintiffs, 	)
)
v. 	) 	2:21-cv-00097-LEW
)
ACTIAN CORPORATION, 	)
)
Defendant. 	)
ORDER ON MOTION FOR LEAVE TO FILE SUPPLEMENTAL BRIEF
Defendant and Counter Claimant, Actian Corporation (“Actian”), has moved for leave to
file a supplemental brief in opposition to Counter Defendants’ motion to dismiss Actian’s
counterclaim. After considering the parties’ arguments and reviewing the proposed supplemental
brief, I deny Actian’s motion.
This case began when Plaintiffs and Counter Defendants, Covetrus, Inc. and Veterinary
Data Services, Inc., filed suit against Actian for a declaratory judgment that Plaintiffs had not
infringed Actian’s copyrights. See Complaint (ECF No. 1). Actian responded by filing a
counterclaim alleging copyright infringement and breach of contract. See Counterclaim (ECF No.
14). Specifically, Actian alleged that Counter Defendants, who license one of Actian’s software
products, had violated the End User License Agreement (“EULA”) associated with the product by
using the product in an unauthorized manner. See Counterclaim ¶¶ 24–28.
Counter Defendants moved to dismiss Actian’s counterclaims. See Mot. Dismiss (ECF No.
45). As relevant here, Counter Defendants argued Actian failed to allege damage resulting from
the alleged breach of the EULA, and therefore failed to state a claim for breach of contract. See id.
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7. Specifically, Counter Defendants argued that because any breach would have terminated the
EULA, Counter Defendants could not be liable under a breach of contract theory for damages
arising after the alleged initial breach; and because Actian only alleges damages that postdate the
alleged initial breach, Actian thus fails to state an actionable claim for breach of contract. See id.
7–8; see also Reply 4 (ECF No. 62). Actian now seeks leave to supplement its brief opposing
Counter Defendants’ motion to dismiss in order to better rebut Counter Defendants’ argument that
the EULA terminated upon breach. See Mot. Supp. Brief (ECF No. 75). The purpose of the
proposed supplemental brief is to introduce testimony by one of Actian’s employees, Marc Potter,
who testified in a deposition that only certain sections of the EULA terminated upon breach while
others remained in effect. See id. Mr. Potter’s deposition post-dated the briefing cycle on Counter
Defendant’s motion to dismiss. See id.
Though Actian frames its motion as a request to file a supplemental brief, it is essentially
a motion to file a surreply. But a surreply is not warranted here, because Counter Defendants’ reply
did not “introduce[] for the first time” any matters which Actian must now have “the opportunity
to contest.” Animal Welfare Inst. v. Martin, 588 F. Supp. 2d 70, 81 (D. Me. 2008). Nor would
permitting Actian to file a surreply serve the interest of justice. Mr. Potter’s testimony cannot fairly
be characterized as “new” evidence for Actian, because Mr. Potter is an Actian employee. And
given that Mr. Potter’s “evidence” is, ultimately, a legal interpretation of the EULA, Actian’s
proposed supplemental brief is no more than an attempt to reframe the argument contained in its
brief opposing dismissal. Actian does not get a second bite at the apple.
Even if a surreply were otherwise warranted, Actian may not prop up its suit by relying on
allegations beyond the counterclaim. At the motion to dismiss stage, a claim must live or die by
the pleadings. See Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st
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Cir.2001) (“Ordinarily, a court may not consider any documents that are outside of the complaint,
or not expressly incorporated therein.”). The First Circuit recognizes “narrow exceptions” to this
rule “for documents the authenticity of which are not disputed by the parties; for official public
records; for documents central to plaintiffs’ claim; or for documents sufficiently referred to in the
complaint.” Watterson v. Page, 987 F.2d 1, 3 (1st Cir. 1993). But the late-day deposition testimony
of Actian’s own employee does not fall within any of these exceptions. While the issue of whether
parts of the EULA survive an alleged breach is central to Actian’s breach of contract claim, Mr.
Potter’s view on the matter is not. And Actian’s counterclaim does not make any reference to, or
otherwise incorporate, Mr. Potter’s deposition testimony or his views on the EULA. See Freeman
v. Town of Hudson, 714 F.3d 29, 36 (1st Cir. 2013) (deposition testimony that was not sufficiently
referenced in pleadings was outside court’s consideration on motion to dismiss).
For the foregoing reasons, Actian’s Motion for Leave to File a Supplemental Brief is
DENIED.
S O O RDERED.
Dated this 30th day of December, 2021.
/s/ Lance E. Walker
UNITED STATES DISTRICT JUDGE
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