Power v. Connectweb Technologies, Inc. et al. (D. Mass. 22-cv-10030).

Having granted Connectweb’s motion for summary judgment, Judge Dein has now denied Power’s motion to set aside the judgment due to newly discovered evidence.  Matthew Power claimed that he had been engaged as an independent contractor to create revisions and derivative works of Connectweb’s CVW software and that he either was the sole owner/copyright holder or at least a joint owner in the revisions.  Judge Dein disagreed, noting that Connectweb undisputably owned the original software and thus had sole rights to create derivative works thereof.  She found that Power failed to put forth evidence that he had received permission to create new versions of the software, which was fatal to his claims.

Powers then moved to set the judgment aside under FRCP 60(a), 60(b)(2) based on alleged newly discovered evidence, and 60(b)(3) on the basis of alleged fraud.  His argument was that, while he initially had agreed that Connectweb was the owner of the original CVW software, but subsequent to the entry of judgment had remembered that the CVW template was originally owned by a different entity, Flashmint, and licensed in by Connectweb.  He asserted that the Flashmint license does not permit claims of copyright on modifications.  He sought a determination that neither he nor Connectweb could claim ownership or copyright in the software, which would disallow Connectweb from preventing Power’s use of the derivative works.  Judge Dein noted that this “information” was not new, and in fact dates back to 2013, making the motion untimely. She noted that at least some of the purportedly “new” information was discovered by Power’s reviewing his credit card purchases and his personal computer to ascertain when he allegedly purchased the license from FLashmint, and that such information would have been available to him throughout the course of the litigation, but that Power provided no explanation for his failure to identify this material earlier in the case.  She denied the request under FRCP 60(a), as that rule is designed to correct for judgments that did not reflect the choice of the court and not to correct deliberate court decisions.  She rejected the 60(b) argument, which (among other things) requires a showing that the purported new evidence could not have been discovered by due diligence on the part of the proponent of the evidence.  She finally rejected the Rule 60(b)(3) argument as Power presented no evidence that Connectweb has prevented him from discovering the new matter in any way, much less through fraud or misrepresentation.