2:01-cv-71403-DPH Doc # 186 Filed 03/29/06 Pg 1 of 10 Pg ID 1648
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`UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF MICHIGAN
`SOUTHERN DIVISION
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`MICHAEL A. CHIRCO and
`DOMINIC MOCERI,
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`Plaintiffs,
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`v.
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`CHARTER OAKS HOMES, INC., et al.,
`________________________________________/
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`Case No: 01-CV-71403-DT
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`Honorable Denise Page Hood
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`ORDER DENYING MOTION FOR RECONSIDERATION,
`ORDER DENYING PETITION FOR INTERLOCUTORY APPEAL,
`AND
`NOTICE OF FINAL PRETRIAL CONFERENCE
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`I.
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`INTRODUCTION
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`This matter is before the Court on Defendants Charter Oaks Homes, American Heritage
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`Homes and Bernard Glieberman’s Motion for Reconsideration of the Court’s March 21, 2005 Order
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`denying Defendants’ Motions for Summary Judgment. Specifically, Defendants claim the Court
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`erred in its Order denying: 1) Defendants’ Motion for Summary Judgment that the Design of the
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`Knollwood Building is not Protected by Copyright Law and Must Be Filtered Out (Dkt. #149); 2)
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`Defendants’ Motion for Partial Summary Judgment of Non-Infringement of the Knollwood
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`Copyright Plans (Vau 356-238); and, 3) Defendants’ Rule 56 Motion for Summary Judgment
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`Dismissal of Count II (Violation of Lanham Act) Pursuant to the Decision in Dastar (Dkt. #147).
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`Defendants also filed Petition under 28 U.S.C. § 1292(b) to Appeal the Court’s March 31, 2005
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`Decision Denying Defendants’ Motions for Summary Judgment.
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`II.
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`ANALYSIS
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`A.
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`Standard for Motions for Reconsideration
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`The Local Rules of the Eastern District of Michigan provide that any motion for
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`reconsideration shall be served not later than ten (10) days after entry of such order. E.D. Mich. LR
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`7.1(g)(1). No response to the motion and no oral argument thereon shall be allowed unless the
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`Court, after filing of the motion, otherwise directs. E.D. Mich. LR 7.1(g)(2). The Local Rule further
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`states:
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`(3) Grounds. Generally, and without restricting the discretion of the
`Court, motions for rehearing or reconsideration which merely present
`the same issues ruled upon by the Court, either expressly or by
`reasonable implication, shall not be granted. The movant shall not
`only demonstrate a palpable defect by which the Court and the parties
`have been misled but also show that a different disposition of the case
`must result from a correction thereof.
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`E.D. Mich. LR 7.1(g)(3).
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`The Court finds that the motion presents the same issues ruled upon by the Court, either
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`expressly or by reasonable implication. The Court further finds that the movant has not
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`demonstrated a palpable defect by which the Court and the parties have been misled nor have
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`Defendants shown that a different disposition of the case would result from a correction of any error.
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`The Court addresses below Defendants’ arguments.
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`B.
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`Defendants’ Motion for Reconsideration that the Design of the Knollwood
`Building is not Protected by Copyright Law and Must Be Filtered Out
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`As to Defendants’ Motion for Summary Judgment that the Design of the Knollwood
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`Building is not Protected by Copyright Law and Must Be Filtered Out, identified by Defendants as
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`Docket No. 149, the Court fully set forth in its March 31, 2005 Opinion its reasons for not ordering
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`that the design be filtered out and Defendants’ Motion for Reconsideration on this issue is not
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`persuasive.
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`“To succeed in a copyright infringement action, a plaintiff must establish that he or she owns
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`the copyrighted creation, and that the defendant copied it.” Kohus v. Mariol, 328 F.3d 848, 853 (6th
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`Cir. 2003). In most cases, a plaintiff may have no direct evidence of copying, and, in such cases,
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`a plaintiff may establish an inference of copying by showing: 1) access to the allegedly-infringed
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`work by the defendant; and 2) a substantial similarity between the two works at issue. Id. at 853-54
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`(quoting Ellis v. Diffie, 177 F.3d 503, 506 (6th Cir. 1999)). With regards to the “substantial similar”
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`element, the Sixth Circuit requires a two-step analysis: 1) identifying which aspects of the artist’s
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`work, if any, are protectible by copyright; and, 2) determining whether the allegedly infringing work
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`is “substantially similar” to the protectible elements of the artist’s work. Kohus, 328 F.3d at 318.
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`“The essence of the first step is to filter out the unoriginal, unprotectible elements ... through a
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`variety of analyses.” Id. at 855.
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`Defendants’ first and second arguments are that the Court erred in shifting the filtering
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`burden to Defendants based on the Court’s statement that Defendants failed to identify which
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`aspects of the artist’s work are protectible as required by the first step and that they in fact identified
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`the eight design elements that were to be filtered out in its motion, identified as Docket No. 149.
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`Specifically, Defendants “quote from page 6 of Crosswind’s brief.” (Br., p. 4). The Court’s review
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`of Docket No. 149 at page 6 does not reveal the list Defendants claim is on page 6. It is noted that
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`Defendants cite page 6 of “Crosswind’s” brief. Crosswind is not a party in the instant case.
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`The Court is aware that Plaintiff has the overall burden of proof in establishing infringement.
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`However, under Fed. R. Civ. P. Rule 56(c), the Court must view the evidence submitted in light of
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`the non-moving party and summary judgment is proper only “if the pleadings, depositions, answers
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`to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
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`genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter
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`of law.” Fed. R. Civ. P. 56(c); Matsushita Electric Industrial Co. v. Zenith Radio Corp., 475 U.S.
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`574, 586 (1986). It is further noted that in copyright infringement cases “granting summary
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`judgment, particularly in favor of a defendant, is a practice to be used sparingly.” Wickham v.
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`Knoxville Int’l Energy Exposition, Inc., 739 F.2d 1094, 1097 (6th Cir. 1874) (citations omitted). As
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`this Court noted in its Opinion, Defendants, as the moving party, failed to submit any evidence
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`regarding which specific elements they argue are not protectible. (3/31/05 Opinion, p. 10) Contrary
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`to Defendants’ argument, page 6 of Defendants’ brief does not set forth any elements which should
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`be filtered out.
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`Defendants also claim that this Court refused to allow a power point presentation and
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`testimony by Defendants’ expert during the hearing. As this Court noted in its Opinion, Rule 56(c)
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`does not provide for an evidentiary hearing, which is essentially a mini-trial. (3/31/05 Opinion, p.
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`9) Rule 56(c) is specific as to the type of evidence which must be submitted to support a summary
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`judgment motion: pleadings, depositions, answers to interrogatories, admissions on file, or
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`affidavits. Fed. R. Civ. P. 56(c). A power-point presentation with expert testimony at the hearing
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`is not the type of evidence set forth in Rule 56(c). The whole concept of a summary judgment
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`motion is for the moving party to submit any evidence on hand with its brief to support the motion
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`and for the non-moving party to rebut that evidence in its response, not to hold a mini-trial with
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`examination and cross-examination of any witnesses. Fed. R. Civ. P. 56(c) and (e). The non-
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`moving party is then given the opportunity to rebut any evidence submitted by the moving party in
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`its response to the motion. Fed. R. Civ. P. 56(e) (“When a motion for summary judgment is made
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`and supported as provided in this rule, ... the adverse party’s response, by affidavits or as otherwise
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`provided in this rule, must set forth specific facts showing that there is a genuine issue for
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`trial.”)(italics added). The Court’s finding that Defendants did not initially support its summary
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`judgment motion regarding the elements which were not protectible was not in error. Defendants
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`have not shown the “mountain of evidence” they claim they submitted in support of their summary
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`judgment motion.
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`Defendants’ third argument is that because the Knollwood building copyright registration
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`no. VAu356-237 was cancelled and that the Court found the design of the Knollwood building was
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`published and the buildings were constructed prior to the 1990 enactment of the Architectural Works
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`Copyright Protection Law and that the underlying plans are in the public domain, the Court
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`erroneously concluded that the filtering out process need not be employed. Defendants claim the
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`Court erred in finding that the Knollwood plan is not a derivative work since it came before the
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`Aberdeen Village plans, which are the derivative work.
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`The Court notes that VAu356-237 is the cancelled registration for the Knollwood
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`“buildings.” The registration at issue, VAu 356-238 is the registration of the Knollwood “plans.”
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`The Court is aware that the Knollwood plan is not a derivative work since it was published before
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`the Aberdeen plan. The Court stated in its Opinion that the derivative works “of the Knollwood
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`plan” were registered–which are the Aberdeen plans. (3/31/05 Opinion, p. 9) The Court was not
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`“misled” by the quotation from the Stewart v. Abent, 395 U.S. 207, 233 (1990) case it cited in the
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`Opinion. The Supreme Court ruled that even though there are copyrighted derivative works, the
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`copyright of the underlying original works remains in effect. Id. at 233. The cancellation of the
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`Knollwood “building” copyright does not affect the Knollwood “architectural plan” copyright.
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`Robert R. Jones Assoc., Inc. v. Nino Homes, 858 F.2d 274, 280 (6th Cir. 1988). The filtering out
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`process should not be based on the elements of the cancelled Knollwood “building” copyright but
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`the Knollwood “architectural plan” copyright. The Court did not err in its Opinion.
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`C.
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`Defendants’ Motion for Reconsideration that the Knollwood Plans (Vau 356-
`238) Were Not Infringed
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`Defendants claim that because the Court ruled that Defendants did not reproduce or distribute
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`copies of the Knollwood plans, the Court should have also granted its non-infringement summary
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`judgment motion. Regarding the Vau 356-238 argument, the Court did not err in its finding that
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`there remain genuine issues of material fact as to whether or not the Knollwood Copyrighted Plans
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`(Vau 356-238) were infringed. There is no palpable defect in the Court’s reliance upon a previous
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`decision as to the Aberdeen Village plans because Defendants provided the same evidence
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`Defendants relied upon in that decision.
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`The Court noted in its Opinion, the claims of “reproducing” and “distributing” are different
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`claims than an “infringement” claim under the Copyright Act. (3/31/05 Opinion, pp. 10-11) A
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`finding of non-reproduction and non-distribution does not automatically result in a finding of non-
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`infringement. A non-infringement analysis is clearly different from a reproduction and distribution
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`analysis.
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`As to Defendants’ remaining arguments on non-infringement, the Court finds that the
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`arguments merely present the same issues ruled upon by the Court, either expressly or by reasonable
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`implication. Defendants have not demonstrated a palpable defect by which the Court and the parties
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`have been misled or shown that a different disposition of the case must result from a correction
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`thereof. The Court clearly states in its Opinion that the Aberdeen Village plans are derivative works
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`of the Knollwood plans and, therefore, any analysis regarding access has been ruled upon by the
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`Court in its October 10, 2003 Opinion. (3/31/05 Opinion, pp. 12-14) The Court’s analysis is
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`supported by Defendants’ own analysis based on its expert’s report, attached as Tab 1 to their
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`motion. Mr. Douglas A. Johnson expressly compares the Heritage plans to both the Knollwood and
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`Aberdeen plans, without distinction. Mr. Johnson specifically states in his report that “Knollwood
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`and Aberdeen Village are Essentially the Same.” (Defendants’ Motion for Summary Judgment, Tab
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`1, pp. 2-3) Defendants used that exact report to support their summary judgment motion as to the
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`Aberdeen Village plans. Since Defendants did not separate out the differences between the
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`Knollwood and Aberdeen plans in their summary judgment motion, the Court, therefore, need not
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`do so in its own analysis especially if Defendants’ own expert failed to do so. Defendants’ argument
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`that this Court should analyze the Knollwood plan apart from the Aberdeen plan is most
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`disingenuous. Defendants failed to initially support its summary judgment motion on their claim
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`of non-infringement of the Knollwood plans.
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`As the Court noted in its March 31, 2005 Opinion, the derivative works of the Knollwood
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`plan were registered. (3/31/05 Opinion, p. 9) The issue is not whether the Heritage plans are a
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`“derivative of the Knollwood plans” as argued now by Defendants, but whether Defendants’
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`Heritage plans infringe Plaintiffs’ Knollwood copyrighted plans. The Court need not find that
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`Defendants’ Heritage plans are a “derivative of the Knollwood plans” in order to determine
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`infringement. The Court did not err in its analysis.
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`D.
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`Defendants’ Motion for Reconsideration based on Dastar
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`This motion is essentially a second untimely Motion for Reconsideration on the Dastar issue.
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`The Court notes E.D. Mich. L.R. 7.1(g) does not provide for a second Motion for Reconsideration.
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`Defendants have failed to cite a rule providing for a second Motion for Reconsideration. For the
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`same reasons set forth in its March 31, 2005 Opinion, the Court denies Defendants’ Motion for
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`Summary Judgment based on Dastar.
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`E.
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`Leave to Appeal
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`Defendants seek leave to appeal from the Court’s March 31, 2005 Opinion under 28 U.S.C.
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`§ 1292(b). Plaintiffs oppose the motion.
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`The general rule is that the court of appeals may only review final orders issued by the
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`district court under 28 U.S.C. § 1291. Interlocutory appeals under § 1292(b) are an exception to the
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`general policy against piecemeal appellate review set forth in § 1291. Section 1292(b) is to be used
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`sparingly. Vitols v. Citizens Banking Co., 984 F.2d 168, 170 (6th Cir. 1993). The express language
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`of 28 U.S.C. §1292(b) requires that the district court must find that an order involves a controlling
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`question of law where there is substantial ground for difference of opinion and that “an immediate
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`appeal from the order may materially advance the ultimate termination of the litigation.” 28 U.S.C.
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`§ 1292(b). The Sixth Circuit has set forth four elements to establish certification: 1) the question
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`involved must be one of “law”; 2) it must be “controlling”; 3) there must be substantial ground for
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`“difference of opinion” about it; and 4) an immediate appeal must materially advance the ultimate
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`termination of the litigation. Vitols, 984 F.2d at 170. It is noted that Defendants did not discuss the
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`four-factor test set forth by the Sixth Circuit in their motion.
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`As to the first element, the question involved must be one of “law,” Defendants seek an
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`appeal of the Court’s denial of their three summary judgment motions: 1) Defendants’ Motion for
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`Summary Judgment that the Design of the Knollwood Building is Not Protected by Copyright Law
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`and Must be Filtered Out; 2) Defendants’ Motion for Partial Summary Judgment of Non-
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`Infringement of Knollwood Copyright Plans (Vau 342-238); and Defendants’ Rule 56 Motion for
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`Summary Judgment of Count II (Violation of Lanham Act) Pursuant to a Decision in Dastar.
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`Defendants’ motion sets forth “facts” which they claim support their motion. The questions
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`involved in Defendants’ appeal do not involve a “question of law.”
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`Since the questions do not involve an issue of “law,” then Defendants have not met the
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`second element that the question of law must be “controlling.” Even if Defendants have raised
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`issues of law, the issues of law are not controlling in this case.
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`Defendants have not set forth any substantial ground for “difference of opinion” about the
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`issues of law, other than their disagreement with the Court’s decision. Defendants have not met the
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`third element to establish that they are entitled to an interlocutory appeal.
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`Defendants have also failed to meet the fourth element–that an immediate appeal must
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`materially advance the ultimate termination of the litigation. As noted above, Defendants raise
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`issues of fact and conclusions of law by the Court with which they do not agree. An interlocutory
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`appeal will not materially advance the ultimate termination of the litigation. Defendants have not
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`shown that they are entitled to an interlocutory appeal under 28 U.S.C. § 1292(b).
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`III.
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`CONCLUSION
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`For the reasons set forth above,
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`IT IS ORDERED that Defendants’ Motion Under L.R. 7.1(g) for Reconsideration of the
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`Court’s March 31, 2005 Opinion and Order Denying Three of Defendants’ Motions for Summary
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`Judgment (Docket No. 179, filed April 14, 2005) is DENIED.
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`IT IS FURTHER ORDERED that Defendants’ Petition Under 28 U.S.C. § 1292(b) to Appeal
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`the Court’s March 31, 2005 Decision Denying Defendants’ Motions for Summary Judgment
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`(Docket No. 180, filed April 29, 2005) is DENIED.
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`IT IS FURTHER ORDERED that a Final Pretrial Conference be held in this matter on
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`Monday, May 22, 2006, 2:15 p.m. The proposed Joint Final Pretrial Order pursuant to E.D. Mich.
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`Local Rule 16.2 must be submitted to Chambers by May 15, 2006. All parties with authority to
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`settle must appear at the Final Pretrial Conference. A trial date will be set at the conference.
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`DATED: March 29, 2006
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` /s/ DENISE PAGE HOOD
`DENISE PAGE HOOD
`United States District Judge
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`I hereby certify that a copy of the foregoing document was served upon counsel of record
`on March 29, 2006, by electronic and/or ordinary mail.
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`s/William F. Lewis
`Case Manager
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