8:04-cv-00519-DLP Doc # 89 Filed: 01/30/06 Page 1 of 8 - Page ID # 499
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEBRASKA
`MONARCH CONSTRUCTION, INC.,
`)
`a Nebraska corporation, and
`)
`DAVID LEE BOYD, ) 8:04CV519
`an Individual,
`)
`Plaintiffs,
` ) MEMORANDUM AND ORDER
`v. )
`)
`GARY COOPER,
` )
`)
`an individual, and
`BUTCH MICHAEL HOMES, INC.,
`)
`a Nebraska corporation,
`Defendants.
`
`
`))
`
`))
`
`)
`
`Defendants have filed a motion for summary judgment.
`Summary judgment is proper when there is “no genuine issue as to
`any material fact and the moving party is entitled to judgment as
`a matter of law.” Fed. R. Civ. P. 56(c); Employers Mut. Cas. Co.
`v. Wendland, 351 F.3d 890, 893 (8th Cir. 2003). The court must
`view the evidence and reasonable inferences drawn therefrom in
`the light most favorable to the nonmoving party. In re
`Derailment Cases, 416 F.3d 787, 792 (8th Cir. 2005). An issue of
`fact is genuine when a “reasonable jury could return a verdict
`for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477
`U.S. 242, 248 (1986). However, “[t]he nonmoving party may not
`rest on mere allegations or denials, but must show a genuine
`issue of material fact (or that the movant is not entitled to
`judgment).” Wenzel v. Mo.-Am. Water Co., 404 F.3d 1038, 1039
`(8th Cir. 2005) (internal quotation omitted). Koscielski v. City
`of Minneapolis, F.3d , 2006 WL 167896, 1 (8th Cir.
`(Minn.) Jan. 26, 2006).
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`To successfully oppose a motion for summary judgment, the
`nonmoving party must present evidence of a genuine dispute of
`material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. at 250
`(1986). The nonmoving party must present admissible evidence
`from which a reasonable jury could return a verdict in its favor.
`This requires more than a scintilla of evidence, and there must
`be specific facts set forth showing that there is a genuine issue
`for trial. Davis v. Fleming Cos., Inc., 55 F.3d 1369, 1371 (8th
`Cir. 1995). Parties to a motion for summary judgment cannot
`create sham issues of fact in an effort to defeat summary
`judgment. RSBI Aerospace, Inc. v. Affiliated FM Ins. Co., 49
`F.3d 399, 402 (8th Cir. 1995). Courts must not deprive juries
`from their role in deciding genuine disputes of material fact;
`however, parties should not be permitted to fashion a dispute of
`material fact solely to impede a lawful exercise of granting a
`motion for summary judgment. American Airlines, Inc. v. KLM
`Royal Dutch Airlines, Inc., 114 F.3d 108, 110-111 (8th Cir.
`1997), citing Wilson v. Westinghouse Elec. Corp., 838 F.2d 286,
`289 (8th Cir. 1988).
`
`The complaint in this case raises sixteen claims against the
`defendants. Subsequent to the filing of the motion, however, the
`plaintiffs agreed that certain claims raised by the pleadings
`should be withdrawn. I have listed each claim in the complaint,
`by whom it is made, and against whom it is made. They are:
`
`A. CLAIMS BY PLAINTIFF MONARCH CONSTRUCTION, INC.:
`
`1. Copyright Infringement against Gary Cooper
`(“Cooper”)
`Copyright Infringement against Butch Michael Homes
`Inc. (“Michael”)
`
`2.
`
`2
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`3.
`4.
`5.
`6.
`7.
`8.
`
`Deceptive Trade Practices Claim against Cooper
`Deceptive Trade Practices Claim against Michael
`Constructive Trust Claim against Cooper
`Constructive Trust Claim against Michael
`Accounting Claim against Cooper
`Accounting Claim against Michael
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`B. CLAIMS BY PLAINTIFF DAVID LEE BOYD:
`
`1.
`2.
`3.
`4.
`5.
`6.
`7.
`8.
`
`Copyright Infringement against Cooper
`Copyright Infringement against Michael
`Deceptive Trade Practices Claim against Cooper
`Deceptive Trade Practices Claim against Michael
`Constructive Trust Claim against Cooper
`Constructive Trust Claim against Michael
`Accounting Claim against Cooper
`Accounting Claim against Michael
`
`In plaintiffs’ responsive brief to the motion, plaintiffs
`abandoned certain claims. They are:
`
`A (1) and A (2)
`
`A (3) and B (3)
`
`A (5) and (6)
`
`B (5) and (6)
`
`Monarch’s claims for Copyright
`Infringement against both
`defendants
`Monarch’s and Boyd’s Deceptive
`Trade Practices claims against
`Cooper
`Monarch’s Constructive Trust Claim
`against both defendants
`Boyd’s Constructive Trust Claim
`against both defendants
`
`3
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`A (7) and (8)
`
`B (7) and (8)
`
`Monarch’s Accounting Claims against
`both defendants
`Boyd’s Accounting Claims against
`both defendants
`
`The remaining claims are:
`
`A (4)
`
`Monarch’s Deceptive Trade Practices Claim
`against Michael only
`
`B (1) and (2)
`Boyd’s Copyright claims against both
`defendants
`
`Because of the plaintiffs’ abandonment of the above claims,
`Defendants’ motion for partial summary judgment has now been
`pared down and addresses Monarch’s only remaining claim, that
`against Michael under the Deceptive Trade Practices Act.
`
`Monarch alleges in the Amended Complaint that defendant
`Michael’s actions have violated the Nebraska Deceptive Trade
`Practices Act, Neb. Rev. Stat. §§ 87-301 et seq. (“Act”) and that
`as a result, Monarch has suffered damages and will continue to
`suffer damages or losses in the future. Monarch prays for
`damages, injunctive relief, and attorneys fees. Amended
`Complaint, Filing 6, para. 25-29.
`
`Michael’s motion claims that the Act does not apply to the
`circumstances of this case and also that even if it did apply, it
`would be preempted by the Copyright Act, 17 U.S.C. §§ 301.
`Plaintiff argues that Butch Michael Builders’s use of the
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`misappropriated plans caused public confusion as to the origin of
`the plans.
`
`The short answer to the defendant’s motion lies in
`defendant’s brief in support of it: Plaintiff Monarch has no
`copyright infringement claim, because it is neither the “owner”
`nor an “exclusive licensee” of the plans. 17 U.S.C. § 501(b).
`No authority has been cited to the effect that the Copyright Act
`either does or was intended to dissolve state law claims of
`related, but different, parties not covered by the Act; rather,
`the Act states only that it preempts “equivalent” state claims.
`17 U.S.C. § 301 (a) and (b). If Monarch had a copyright claim,
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`its Deceptive Trade Practices Act claim might be preempted,1 but
`since it does not, there can be no preemption.2
`
`1 Compare, e.g., M.G.B. Homes, Inc. v. Ameron Homes, Inc.,
`903 F. 2d 1486 (11th Cir. 1990) (Act preempted Florida unfair
`competition claim based on house builder’s competitor built house
`substantially following copyrighted floor plans); Demetriades v.
`Kaufmann, 698 F. Supp. 521 (S. D. N. Y. 1988)(State claim of
`unfair competition resulting from defendants’ copying misappro-
`priated plans of plaintiff was preempted); Old South Home Co. v.
`Keystone Realty Group, Inc., 233 F. Supp. 2d 734 (M. D. N. C.
`2002) (Act preempted claim of violation of state’s Unfair Trade
`Practices Act by copying plaintiff’s house plans and passing them
`off as its own); with e.g., Intown Enterprises, Inc. v. Barnes,
`721 F. Supp. 1263 (N. D. Ga. 1989) (State law unfair competition
`claim that defendant’s use of plaintiff’s architectural drawings
`would likely confuse buyers was not preempted by Copyright Act);
`Nash v. CBS, Inc., 704 F. Supp. 823 (N. D. Ill. 1989), aff’d, 899
`F. 2d 1537 (7th Cir. 1990) (State Unfair Deceptive Trade
`Practices Act was not preempted because the state act sought to
`prevent unfair competition, and the Copyright Act sought to
`secure authors’ intellectual property rights); Donald Frederick
`Evans and Associates, Inc. v. Continental Homes, Inc., 785 F. 2d
`897, 913 (11th Cir. 1986) (State claim of misrepresenting
`plaintiff’s homes not preempted by Copyright Act, because while
`the architectural designs were within the Act, the buildings were
`not).
`
`2 Were the parties identical, it appears likely that the
`state Deceptive Trade Practices Act claim would be preempted,
`because even though it appears to require additional elements of
`proof not required by the Copyright Act, for example, (a) that
`the defendant’s actions were taken “in the course of his or her
`business, vocation, or occupation” (§87-302(a)); (b) that the
`defendant’s action “causes likelihood of confusion or
`misunderstanding as to the source, sponsorship, approval, or
`certification of goods or services” (§87-302(a)(2)); and (c) that
`the defendant’s act “causes likelihood of confusion or of
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`Defendants also claim that the Deceptive Trade Practices Act
`(“DTPA”) does not apply to the facts of this case. In responding
`to the motion, while plaintiff alleges in the complaint and
`argues in its brief that defendant Michael Builders has performed
`acts which are prohibited by the DTPA, plaintiff has pointed to
`no evidence whatsoever, and has not filed an evidence index
`setting forth competent evidence from which a jury could conclude
`that plaintiff is entitled to a verdict. Anderson v. Liberty
`Lobby, Inc., 477 U.S. at 248. As stated above, a “nonmoving
`party may not rest on mere allegations or denials, but must show
`a genuine issue of material fact . . . ." Wenzel v. Mo.-Am.
`Water Co., 404 F.3d 1038, 1039 (8th Cir. 2005) (internal
`quotation omitted). Because there is no evidence before the
`court from which a jury could reach a verdict in Monarch’s favor
`on the DTPA claim, summary judgment for defendant Michael is
`appropriate on this claim.
`
`IT THEREFORE HEREBY IS ORDERED: Defendants’ Motion for
`Partial Summary Judgment, Filing 53, is granted in part and
`denied in part, as follows:
`
`misunderstanding as to affiliation, connection, or association
`with, or certification by, another” (§87-302(3)), those elements
`may not, in the circumstances of the case, take the protection of
`the state law out of the protection granted by the Copyright Act.
`Richdale Development Co. v. McNeil Co., Inc., 244 Neb. 694
`(1993), modified, 244 Neb. 936 (1994) (Plaintiff’s claim of
`violation of §87-302 for theft of architectural drawings was
`preempted by Copyright Act because the interests being protected
`by both acts–-protection against reproduction and distribution of
`the plans--were the same). Cf., Davidson & Associates v. Jung,
`422 F.3d 630, 638 (8th Cir. 2005), citing Nat'l Car Rental Sys.,
`Inc. v. Computer Assocs. Intern., Inc., 991 F.2d 426, 428 (8th
`Cir. 1993), cert denied, 510 U.S. 861 (1993) (Copyright Act
`preempts state laws that attempt to protect rights exclusively
`protected by federal law and does not preempt state law from
`enforcing non-equivalent legal or equitable rights).
`7
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`1. Summary Judgment for the defendants is granted with
`respect to the following claims, and they are dismissed:
`a. Monarch’s claims for Copyright Infringement
`against both defendants
`b. Monarch’s and Boyd’s Deceptive Trade Practices
`claims against Cooper
`c. Monarch’s Constructive Trust Claim against both
`defendants
`d. Boyd’s Constructive Trust Claim against both
`defendants
`e. Monarch’s Accounting Claims against both
`defendants
`f. Boyd’s Accounting Claims against both defendants
`2. The motion for summary judgment is also granted with
`respect to Monarch’s claim against Michael Builders under the
`Nebraska Deceptive Trade Practices Act, and said claim is
`dismissed.
`DATED January 30, 2006
`
`BY THE COURT:
` s/ David L. Piester
`United States Magistrate Judge
`
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