Wednesday, January 15, 2020

Lexar Homes, LLC v Port, NO. CV-12-0416-JLQ

Real Homes markets and builds single family homes in North Central Washington State. Prior to 2011, Port was a shareholder of Defendant A Home Doctor, Inc. To view the distance and commute time from this home to the places that matter most to you, enter a destination address, choose a mode of transportation (car, bike, etc.) and then select Calculate.

lexar home plans

The Price Range displayed reflects the base price of the homes built in this community. The regional map represents a building area and provides you with the base price of your prospective home when you view floorplans. Please consult with your local office for a confirmation of your build area. For these reasons described above, Defendants' Motion for Summary Judgment (ECF No. 31) is GRANTED. ACCORDINGLY, the District Court Executive is directed to file this Order, enter JUDGMENT dismissing the Complaint (ECF No. 1) and the claims therein with prejudice, provide copies to counsel, and CLOSE THE FILE. Lexar claims to possess HiLine Home's former undivided one-half interest "in any and all rights"in Plan 2248 and Plan 2576, and claims its "Lexar Plan 2248" is the subject of the copyright protected home plan obtained by HiLine.

Plan 875

On September 20, 2012 Plaintiff moved for Temporary Restraining Order (ECF No. 15) to restrain Defendants from holding an open house that same day. The court denied the Motion. On May 9, 2013, Defendants moved for Summary Judgment asking the court to dismiss all the claims. Plaintiff's Response addresses only the federal copyright infringement claim. Defendants' Motion for Summary Judgment also seek dismissal of Plaintiff's state law claims for conversion, misappropriation of trade secrets, and intentional interference with a business expectancy.

A district court may, at its discretion, decline to exercise supplemental jurisdiction over remaining state law claims where it has dismissed all claims over which it has original jurisdiction. However, as Plaintiff does not contest the dismissal of these claims, the interests of economy suggest it would be prudent for the court to proceed to rule on these claims. Plaintiff Lexar Homes, LLC ("Lexar") is a homebuilder which prior to October 27, 2010 operated as HiLine Homes, LLC ("HiLine"). HiLine opened a franchise in Wenatchee, Washington in either 2008 or 2009, across the street from the Defendant's office. (ECF No. 40, Ex. 3 at 2). Defendant Jon Port is a competitor of Plaintiff, doing business as Real Homes in Wenatchee, Washington since 2001.

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Though requested in discovery by Defendants, copies of the plans that were submitted to the U.S. Copyright Office at the time of application for registration could not be located by Plaintiff. You get to select from the many different types of homes built by this Builder and personalize your New Home with options and upgrades.

lexar home plans

In late 2011 or early 2012, Jason Nieman was researching home designs and comparing Lexar and Real Homes' designs. After touring Real Home's model home, Nieman, notified Port of the similarity between the model home and Lexar's Plan 2576. Defendants concede "the Lexar Plans have similar characteristics as the Amy Rose plan." (ECF No. 31 at 2). Defendants' Declaration of designer Ryan Kelso states similarities in house plans are common as "there is only so much you can do with a box." (ECF No. 29, Ex. 6). According to Port, after the design was completed, he named the floor plan the "Amy Rose" after his sister, Amy Grams. Other designs he has are also named after family members and friends.

Plan 1883

Plaintiff has come forward with the Affidavit of Lexar's owner, Rob Eldred, who in his side-by-side comparison noted 31 similarities. Lexar has posted plans for Lexar Plan 2248 and Lexar Plan 2576 online. Lexar has a model home allegedly based upon the Plan 2248 at 136 Sun Valley Drive, in Wenatchee. BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No. 31), which is opposed by Plaintiff. For the reasons below, the court grants the Motion and dismisses Plaintiff's claims in the Complaint. Please enter a valid location or select an item from the list.

Port also claims that in 2004 and 2005, Real Homes printed flyers and brochures to show potential customers the "Amy Rose" design. Attached to his Declaration is a copy of one of the flyers advertising the "Amy Rose" design and containing 2004 and 2005 deadlines for deposits and construction. We have been supplying builders and developers with award-winning house plans and home design services since 1983. Working in all 50 States and many countries around the globe, we're confident we can cost-effectively find the right design for your lot, lifestyle, and budget.

Luxar Homes

A work is considered "copied" under the Copyright Act when it is "so overwhelmingly identical that the possibility of independent creation is precluded." Twentieth Century Fox Film Corp. v. MCA, Inc., 715 F.2d 1237, 1330 (9th Cir. 1983). Typically, there will be no direct evidence that an infringement defendant copied the plaintiffs work. A plaintiff may instead create a presumption of copying "by showing that the infringer had access to the work and that the two works are substantially similar." Shaw v. Lindheim, 919 F.2d 1353, 1356 (9th Cir. 1990) (citing Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989)). By establishing reasonable access and substantial similarity, the burden of production then shifts to the defendant to rebut that presumption through proof of independent creation.

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The Villas at Terrace Heights is an active adult community in Yakima, Washington offering quality, privacy, and affordability. The parties each provide their own lay evidence as to the similarities and differences between Plan 2248 and the Amy Rose. Port notes 24 differences. (ECF No. 38, para. 11).

Plan 2373

Primarily, Defendants deny copying Plaintiff's design and assert the Amy Rose design was independently created. Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 723 (9th Cir. 1976). The documentary evidence Defendants have come forward with to show Defendants had the Amy Rose design prior to the 2009 copyright of Plan 2248, are a birthday card and a flyer. Port's Declaration states that he recalls presenting his sister a birthday card with a printed copy of the Amy Rose design on it at a family gathering to celebrate her 40th birthday in the summer of 2004. A copy of the birthday card, signed by Port and his wife, is attached to Port's Declaration. Amy Gram's Declaration states she saved the document Port gave to her in the summer of 2004 and provided the original to Port's attorneys for this lawsuit.

lexar home plans

Plaintiff's Summary Judgment Response does not discuss the elements of its prima facie case. Instead it relies solely upon "numerous similarities" it identified between the two plans to defeat Defendants' motion. The Complaint asserts claims for copyright infringement, "conversions," misappropriation of trade secrets, and intentional interference with business relations.

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See Celotex Corp. v. Catrett, 477 U.S. 317, 323 . On issues where the nonmoving party will have the burden of proof at trial, the moving party may meet its burden by showing that there is an "absence of evidence" to support the nonmoving party's case. Celotex Corp., 477 U.S. at 325. The nonmoving party then must designate specific facts showing that there is a genuine issue for trial.

lexar home plans

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