United States District Court, N.D. Georgia, Gainesville Division
RICHARD W. STORY, UNITED STATES DISTRICT JUDGE
case comes before the Court on the Neisler Defendants'
Motion for Summary Judgment ; Plaintiff's Motion for
Summary Judgment ; and Defendants Fine Built Construction
and Clifford T. Fine's Motions for Summary Judgment as to
Plaintiff's Complaint  and the Neisler
Defendants' Counterclaims .
before the Court is a Motion to Exclude the Declaration of
Larry Vandiver , 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.
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.
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.)Plaintiff owns certificates
of registration from the United States Copyright Office for
two residential construction plans called the Mountainview I
and Mountainview II. (Id. ¶¶ 2-6; Vandiver
Decl., Dkt.  at Ex. A, Ex. B.)
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.  ¶
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.
however, the Neislers never contracted with Plaintiff.
Instead, the Neislers retained Fine Built Construction
(“Fine Built”) to build their home. (Pl.'s Resp.
to Fine SOF, Dkt.  ¶¶ 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.
Summary Judgment Standard
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
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.
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
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).
Cross Motions for Summary Judgment , , 
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
Ownership of ...