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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.
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.
Luxar Homes
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.
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.
Plan 2320
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.
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.
Plan 800
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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.
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.
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.
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.
The Complaint alleges that Defendants infringed the copyright for Plan 2248. At NewHomeSource.com, we update the content on our site on a nightly basis. We seek to ensure that all of the data presented on the site regarding new homes and new home communities is current and accurate. However, we do not assume any liability for inaccuracies. It is your responsibility to independently verify the information on the site.
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.
The party opposing summary judgment must present more than a "mere scintilla" of evidence; the evidence must be such that a reasonable jury could find in favor of the plaintiff. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. 2d 202 Summary judgment is appropriate against a party who "fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322; Matsushita Elec. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (nonmovant's showing of "some metaphysical doubt" as to material facts insufficient); see also Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir.1994). Defendants seek summary adjudication based upon the unrebutted sworn declarations of Jon Port and his sister, corroborated by documentary proof in a birthday card and a flyer. This evidence shows the allegedly infringing pattern was in Defendants' possession years prior to the 2009 date Plan 2248 was authored and copyrighted.
Three Boys Music Corp. v. Bolton, 212 F.3d 477, 486 (9th Cir. 2000) (citing Granite Music Corp. v. United Artists Corp., 532 F.2d 718, 721 (9th Cir. 1976)). Plaintiff has presented no evidence, expert or otherwise, tending to show that the allegedly infringing pattern could only have been derived from copyrighted Plan 2248. Yet Plaintiff opines that Defendants' evidence is too weak because they didn't identify the creation date or drafter of the plan, and therefore it is "not sufficient...to prevail" either on summary judgment or at trial.
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