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Clean Crawl, Inc. v. Crawl Space Cleaning Pros, Inc.

United States District Court, W.D. Washington, Tacoma

December 11, 2019

CLEAN CRAWL, INC., Plaintiff,



         This matter comes before the Court on Plaintiff Clean Crawl, Inc.'s (“CCI”) motion for leave to amend or supplement complaint. Dkt. 159. The Court has considered the pleadings filed in support of and in opposition to the motion and the remainder of the file and hereby grants the motion for the reasons stated herein.


         This suit arises from copyright and trademark disputes between CCI and Defendant Crawl Space Cleaning Pros (“CSCP”), two businesses which clean attic and crawl spaces and provide pest exclusion services for homes in the Western Washington area.[1]

         CCI began doing business in its current iteration in 2001 when its president, Charles Henrichsen (“Henrichsen”), transferred his Bio Bug Pest Management, Inc. business to CCI, Dkt. 48 at 6, and began using the trade name Clean Crawls, Dkt. 49, Declaration of Charles Henrichsen (“Henrichsen Decl.”) at 3. CSCP began operations on January 9, 2013, under founder and owner Richard Herron (“Herron”). Dkt. 39 (citing Dkt. 40, Declaration of Richard Herron (“Herron Decl.”), at 1). Henrichsen and Herron had met each other in 2008, and Henrichsen declares that he mentored Herron in starting a business, Sustainable Building and Insulation (“SBI”). Henrichsen Decl. at 3-4. Henrichsen declares that he made SBI a CCI subcontractor and referred “many jobs” to SBI. Id. at 4. Henrichsen declares that these referrals allowed Herron to be “heavily exposed” to CCI's “family of trademarks and copyrights” between 2010 and 2013. Id.

         CSCP registered CRAWL PROS as a trade name with the Washington State Department of Revenue on June 6, 2017. Dkt. 160, ¶ 6; Dkt. 160-1 at 65. Andrew Gjerness as CCI's corporate representative testified that in June or July 2017, CCI became aware through checking social media to compare competitor's advertisements that CSCP was changing their name to Crawl Pros. Dkt. 121, Ex. 3 at 12. Herron testified as CSCP's corporate representative that CSCP changed its name because it was entering the Portland, Oregon market in August of 2017 and because it owned the domain name. Dkt. 121, Ex. 2, at 211. In support of CSCP's opposition to the motion to amend, Herron declares that he made this decision in May 2017. Dkt. 163, ¶ 10. Herron also testified as CSCP President that CSCP's goal was to entirely switch the name under which CSCP does business from Crawl Space Cleaning Pros to Crawl Pros by the end of 2019. Dkt. 123, Ex. 4 at 31. Herron declares that in June 2017 CSCP began marketing under a new CRAWL PROS logo, updated its website, and advertised as CRAWL PROS on the radio. Dkt. 163, ¶¶ 10-12, 14.

         On August 14, 2017, CSCP filed a complaint against CCI in the Pierce County Superior Court for the State of Washington for violation of Washington's Trademark Registration Act, RCW Chapter 19.77 et seq., common law trademark infringement, and violation of Washington's Consumer Protection Act (“CPA”), RCW Chapter 19.86. Dkt. 39 at 5. On September 6, 2017, CCI filed this lawsuit against CSCP, alleging copyright infringement, trademark infringement, false designation of origin and unfair competition in violation of the CPA, and seeking a permanent injunction against infringement of the copyrighted materials and the trademarked materials, destruction of all infringing materials, damages, and other relief. Dkt. 1.

         On March 19, 2018, CSCP filed an amended answer in the instant case, asserting counterclaims and affirmative defenses including laches. Dkt. 32. Herron declares that on April 5, 2018, CSCP produced documents in response to CCI's first request for production of documents featuring the CRAWL PROS logo. Dkt. 163, ¶ 16. CCI argues that it “promptly identified” the CRAWL PROS trade name as infringing in its May 11, 2018 response to first set of interrogatories. Dkt. 159 at 5 (citing Dkt. 160-1 at 74, 76- 77).

         On September 6, 2018, CSCP filed a motion for summary judgment. Dkt. 39. On January 29, 2019, the Court granted the motion as to CCI's copyright claims for two of the five copyrighted documents at issue. Dkt. 75 at 40. On March 1, 2019, in response to CSCP's request for a continuance, Dkt. 86, and CCI's notice of non-opposition, Dkt. 101, the Court granted the motion for a continuance and struck the scheduling order based on the then-existing trial date. Dkt. 105. On May 31, 2019, the Court ruled on the remaining questions from CSCP's motion for summary judgment and granted summary judgment only as to the second page of one document and denied summary judgment as to the remainder of the motion. Dkt. 112.

         On July 11, 2019, CSCP filed its second motion for partial summary judgment. Dkt. 120. On August 6, 2019, CCI filed a motion for leave to file Dkt. 128, Second Henrichsen Declaration. Dkt. 129. On September 25, 2019, in response to the parties' joint status reports, the Court set a new trial date of January 14, 2020 and new pretrial deadlines. Dkt. 136. On November 5, 2019, the Court denied CSCP's second motion for partial summary judgment and granted CCI's motion for leave to file the Second Henrichsen Declaration. Dkt. 157. The Court declined to analyze CCI's claims regarding CSCP's use of the trade name CRAWL PROS, finding it was now apparent that those claims were outside the pleadings and not properly before the Court. Dkt. 157 at 15. The Court noted CCI had requested to supplement the pleadings pursuant to Federal Rule of Civil Procedure 15(d) should the Court find it necessary but agreed with CSCP that supplementing a complaint in opposition to summary judgment was inappropriate. Id.

         On November 13, 2019, CCI filed a motion for leave to amend or supplement complaint. Dkt. 159. On November 25, 2019, CSCP responded. Dkt. 161. On November 29, 2019, CCI replied. Dkt. 164.


         A. Rule 16

         “[W]hen a party seeks to amend a pleading after the pretrial scheduling order's deadline for amending the pleadings has expired, the moving party must satisfy the ‘good cause' standard of Federal Rule of Civil Procedure 16(b)(4), which provides that ‘[a] schedule may be modified only for good cause and with the judge's consent,' rather than the liberal standard of Federal Rule of Civil Procedure 15(a).” In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 737 (9th Cir. 2013). This good cause standard “primarily considers the diligence of the party seeking the amendment.” Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th Cir. 1992). ...

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