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Inc. v. Fine Built Construction of North Carolina, Inc.

United States District Court, N.D. Georgia, Gainesville Division

January 29, 2018




         This case comes before the Court on the Neisler Defendants' Motion for Summary Judgment [71]; Plaintiff's Motion for Summary Judgment [73]; and Defendants Fine Built Construction and Clifford T. Fine's Motions for Summary Judgment as to Plaintiff's Complaint [83] and the Neisler Defendants' Counterclaims [82].

         Also before the Court is a Motion to Exclude the Declaration of Larry Vandiver [90], which was filed in support of Plaintiff's Motion for Summary Judgment. As the Court indicated during oral argument on November 13, 2017, that Motion will be GRANTED in part and DENIED in part. It is granted as to Plaintiff's attempt to introduce an additional floor plan-the Oxford Plan-that was not produced until after the close of discovery. See Fed.R.Civ.P. 37(c). The Motion is denied, however, insofar as it seeks to prevent Plaintiff's introduction of the complete copyright registrations for the Mountainview plans, upon which this suit is, and has always been, premised.

         As to the other pending Motions, after reviewing the record and considering the parties' arguments in the briefs and during oral argument, the Court enters the following Order.


         This is a copyright case involving residential building designs. Plaintiff America's Home Place, Inc. is a “scattered-lot” custom home builder. (Pl.'s Statement of Undisputed Material Facts (“Pl.'s SMF”), Dkt. [73-2] ¶ 1.)[1]Plaintiff owns certificates of registration from the United States Copyright Office for two residential construction plans called the Mountainview I and Mountainview II.[2] (Id. ¶¶ 2-6; Vandiver Decl., Dkt. [74] at Ex. A, Ex. B.)

         In 2014, Kim and Terry Neisler-two first responders from Florida-approached Plaintiff and several other local builders about building a home for them in Blairsville, Georgia. (Decl. of Terence Neisler (“Neisler Decl.”), Dkt. [71-4] ¶¶ 3, 8-9.) When the Neislers met with Plaintiff, some time in October 2014, they had already created a conceptual layout for their future home. (Pl.'s Resp. to Defs.' Statement of Undisputed Facts (“Pl.'s Resp. to Fine SOF”), Dkt. [96] ¶ 105.) While in discussions with Plaintiff, the Neislers were shown portions of the Mountainview I-B and II-B plans, which are modified versions of the original Mountainview designs. (Defs.' Resp. to Pl.'s Statement of Undisputed Material Facts (“Fines' Resp. to Pl. SOF”), Dkt. [97-1] ¶ 33-34.) The Moutainview I-B and II-B were redlined to reflect modifications requested by the Neislers. (Id.)

         Ultimately, however, the Neislers never contracted with Plaintiff. Instead, the Neislers retained Fine Built Construction (“Fine Built”)[3] to build their home. (Pl.'s Resp. to Fine SOF, Dkt. [96] ¶¶ 104, 106.) Fine Built then hired Diane Wilson to draft plans for the Neislers' home, and the Fine Defendants constructed a home based on those plans. (Id. ¶¶ 115-16; Fines' Resp. to Pl. SOF, Dkt. [97-1] ¶ 41.) After Plaintiff noticed similarities between its Mountainview plans and the home the Neislers had built, this litigation ensued. Plaintiff brings this copyright action alleging that the Neislers' home impermissibly infringes upon the Mountainview I-B and Mountainview II-B designs, as well as the redlined versions of those plans. Plaintiff now moves for summary judgment, as do Defendants.


         I. Summary Judgment Standard

         Federal Rule of Civil Procedure 56 requires that summary judgment be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” “The moving party bears ‘the initial responsibility of informing the . . . court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, which it believes demonstrate the absence of a genuine issue of material fact.'” Hickson Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259 (11th Cir. 2004) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). Where the moving party makes such a showing, the burden shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257 (1986).

         The applicable substantive law identifies which facts are material. Id. at 248. A fact is not material if a dispute over that fact will not affect the outcome of the suit under the governing law. Id. An issue is genuine when the evidence is such that a reasonable jury could return a verdict for the non-moving party. Id. at 249-50.

         Furthermore, in resolving a motion for summary judgment, the court must view all evidence and draw all reasonable inferences in the light most favorable to the non-moving party. Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1296 (11th Cir. 2002). But, the court is bound only to draw those inferences that are reasonable. “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Allen v. Tyson Foods, Inc., 121 F.3d 642, 646 (11th Cir. 1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). “If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted.” Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (internal citations omitted); see also Matsushita, 475 U.S. at 586 (once the moving party has met its burden under Rule 56(a), the nonmoving party “must do more than simply show there is some metaphysical doubt as to the material facts”).

         Finally, the standard of review for cross-motions for summary judgment does not differ from the standard applied when only one party files a motion, but simply requires a determination of whether either of the parties deserves judgment as a matter of law on the facts that are not disputed. Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1331 (11th Cir. 2005). The Court must consider each motion on its own merits, resolving all reasonable inferences against the party whose motion is under consideration. Id. And while “[c]ross-motions for summary judgment will not, in themselves, warrant the court in granting summary judgment unless one of the parties is entitled to judgment as a matter of law on facts that are not genuinely disputed, ” cross-motions may be probative of the absence of a factual dispute where they reflect general agreement by the parties as to the controlling legal theories and material facts. United States v. Oakley, 744 F.2d 1553, 1555-56 (11th Cir. 1984).

         II. Cross Motions for Summary Judgment [71], [73], [83]

         To support a claim of copyright infringement, Plaintiff must prove (1) ownership of a valid copyright and (2) copying of protectable elements by Defendants. Miller's Ale House, Inc. v. Boynton Carolina Ale House, LLC, 702 F.3d 1312, 1325 (11th Cir. 2012) (quoting Oravec v. Sunny Isles Luxury Ventures, LLC, 527 F.3d 1218, 1223 (11th Cir. 2008)).

         A. Ownership of ...

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