Charles W. Ross Builder, Inc. v. Olsen Fine Home Bldg., LLC

[977 F.Supp.2d 571]

John C. Lynch, Megan E. Burns, Troutman Sanders LLP, Virginia Beach, VA, Robert Armistead Angle, Troutman Sanders LLP, Richmond, VA, for Plaintiff.

Jeffrey Hamilton Geiger, Sands Anderson PC, Linda Marie Quigley, The Matthews Law Group PLLC, Richmond, VA, Brian Nelson Casey, John Franklin, III, Taylor & Walker PC, Norfolk, VA, Charles Manley Allen, Jr., Goodman Allen & Filetti PLLC, Glen Allen, VA, for Defendants.

[977 F.Supp.2d 572]

This matter comes before the Court upon the filing or Renewed Motions for Summary Judgment by: (1) Olsen Fine Home Building, LLC; (2) Beverly Olsen; (3) Boathouse Creek Graphics, Inc.; (4) Rick J. Rubin; and (5) Jennifer L. Rubin (collectively “Defendants”). Olsen's Ren. Mot. for Summ. J., ECF No. 115; Boathouse's Ren. Mot. for Summ. J., ECF No. 119; Rubins' Ren. Mot. for Summ. J., ECF No. 121. The Court has subject matter jurisdiction over Charles W. Ross Builder, Inc.'s (“Plaintiff”) Amended Complaint, which alleges violations of the: (1) Federal Copyright Act, 28 U.S.C. § 101 et seq.; (2) Digital Millennium Copyright Act, 17 U.S.C. § 1202(b); and (3) Lanham Act, 15 U.S.C. § 1051 et seq. Pl.'s Am. Compl., ECF No. 21.

Plaintiff is a custom home designer and builder operating primarily in the Williamsburg area of Virginia. Plaintiff is a corporation existing under the laws of the Commonwealth of Virginia and has its principal place of business in Williamsburg, Virginia. Pl.'s Am. Compl. ¶ 2, ECF No. 21.

Defendants Rick and Jennifer Rubin (collectively “the Rubins”) are individuals who constructed a single-family home (“the Rubin residence”) in the Ford's Colony subdivision of Williamsburg are of James City County, Virginia. Defendant Boathouse Creek Graphics, Inc. (“Boathouse Creek”) is the residential design corporation that designed the Rubin residence. Boathouse Creek's President is Lisa Sawin (“Sawin”),¹ and it is organized and exists under the laws of the Commonwealth of Virginia with a principal place of business in Yorktown, Virginia. Defendant Olsen Fine Home Building, LLC (“Olsen Fine Homes”) is a builder in the Williamsburg area that constructed the Rubin residence based on dwelling utilization plans drawn up by Boathouse Creek. Defendant Beverly Olsen (“Olsen”) owns Olsen Fine Homes (collectively, “the Olsens”), and has reportedly constructed at least eight houses in the Ford's Colony subdivision where the Rubin residence is located.

This is a copyright infringement suit concerning the Rubin residence. Plaintiff's Amended Complaint alleges that, prior to beginning construction of their residence, the Rubins: (1) toured a copyrighted

[977 F.Supp.2d 573]

model of Plaintiff's “Bainbridge” model home (“Bainbridge” or “the copyrighted work”); (2) received a “For Sale” brochure with photos and sales prices during the tour; and (3) later received an unsolicited promotional brochure which contained floor plans for many different homes, including the Bainbridge. It is alleged that the Rubins subsequently contracted with Defendants Boathouse Creek and the Olsens to design and construct a home substantially similar to the Plaintiff's copyrighted Bainbridge design.

For the reasons set forth herein, the Court GRANTS Defendants' Renewed Motions for Summary Judgment. Olsen's Ren. Mot. for Summ. J., ECF No. 115; Boathouse's Ren. Mot. for Summ. J., ECF No. 119; Rubins' Ren. Mot. for Summ. J., ECF No. 121.

On November 24, 2010, Plaintiff filed an Amended Complaint alleging: (1) federal copyright violations against all Defendants (Count One); (2) that the Rubins contributed to or induced said copyright infringement (Count Two); (3) violations of the Digital Millennium Copyright Act by Boathouse Creek and the Olsens (Count Three); and (4) unfair competition by Boathouse Creek and the Olsens (Count Four). Pl.'s Am. Compl., ECF No. 21.

On February 14, 2011, Defendants filed their Original Motions for Summary Judgment. Rubins' Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 38; Olsen's Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 40; Boathouse's Orig. Mot. for Summ. J., Feb. 14, 2011, ECF No. 44. On February 21, 2011, Plaintiff filed a Memorandum in Opposition, ECF No. 52, to those Original Motions for Summary Judgment. Each Defendant subsequently filed a Response to Plaintiff's Opposition Memorandum. Olsen's Reply to Pl.'s Mem. in Opp., Feb. 21, 2011, ECF No. 53; Rubins' Reply to Pl.'s Mem. in Opp., Feb. 22, 2011, ECF No. 54; Boathouse's Reply to Pl.'s Mem. in Opp., Feb. 28, 2011, ECF No. 56. On June 28, 2011, the parties appeared before the Court for a hearing concerning Defendants' Original Motions for Summary Judgment. On September 29, 2011, the Court issued an Opinion and Order: (1) granting the Defendants' Motions as to Counts One, Two, and Three; and (2) dismissing Count Four, without prejudice, for lack of jurisdiction. Op. & Ord., 827 F.Supp.2d 607 (E.D.Va.2011). In doing so, the Court found that the Rubin residence was not “substantially similar” to Plaintiff's copyrighted work based on the “more discerning observer,” which had been relief upon by other courts to assess copyright infringement in the architectural context. Op. & Ord., 827 F.Supp.2d at 621 (citing Trek Leasing, Inc. v. U.S., 66 Fed.Cl. 8, 19 (Ct.Fed.Cl.2005)).

On October 28, 2011, Plaintiff filed a Notice of Appeal. ECF No. 79. Plaintiff appealed the Court's decision with respect to Counts One and Two of the Amended Complaint, but did not appeal as to Counts Three or Four. On appeal, Plaintiff argued that the undersigned reached an incorrect result by failing to apply the Fourth Circuit's “substantial similarity” test developed in Universal Furniture International, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417 (4th Cir.2010), which involved copyright infringement with respect to furniture design. On November 8, 2012, the Fourth Circuit issued an Opinion Finding that the test set forth in Universal Furniture extends to architectural works and, therefore, should control the Court's consideration of this matter. Op. of USCA, ECF No. 109, 496 Fed.Appx. 314 (4th Cir.2012). Thus, the Fourth Circuit vacated the September 29, 2011 Opinion and Order granting Defendants' Original Motions for

[977 F.Supp.2d 574]

Summary Judgment and remanded the matter for further proceedings.

After remand, Defendant each filed Renewed Motions for Summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Olsen's Ren. Mot. for Summ. J., Nov. 30, 2012, ECF No. 115; Boathouse's Ren. Mot. for Summ. J., Dec. 21, 2012, ECF No. 119; Rubins' Ren. Mot. for Summ. J., Dec. 21, 2012, ECF No. 121. On January 4, 2013, Plaintiff filed its Opposition Memorandum. Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., ECF No. 123. Each defendant then filed replies to Plaintiff's opposition. Boathouse's Reply to Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 10, 2013, ECF No. 124; Olsen's Reply to Pl.s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 14, 2013, ECF No. 125; Rubins' Reply to Pl.'s Mem. in Opp. to Ren. Mots. for Summ. J., Jan. 17, 2013, ECF No. 126.

On June 3, 2013, the parties appeared before the undersigned for a hearing concerning the Renewed Motions for Summary Judgment. Min. Entry, ECF No. 133. During the course of that hearing, the Court inquired as to Plaintiff's argument concerning Olsen's access to the copyrighted work. In response, Plaintiff's counsel directed the Court to a portion of Sawin's deposition and suggested a desire for additional discovery. The Court inquired as to what additional discovery Plaintiff sought, and in response Plaintiff's counsel requested an opportunity to: (1) depose Beverly Olsen; and (2) take unspecified written discovery. The Court ordered Olsen's deposition, but denied Plaintiff's request for written discovery, for which no justification had been advanced.

Plaintiff took Beverly Olsen's deposition on June 11, 2013 and filed a Notice of Filing of Deposition Transcript on June 21, 2013. ECF No. 124. Plaintiff also filed, on June 21, 2013, a Motion for Leave to File Supplemental Affidavit, ECF No. 135, and Memorandum in Support thereof, ECF No. 136. On September 26, 2013, the Court issued an Opinion and Order denying Plaintiff's Motion to File Supplemental Affidavit, having found that: (1) Plaintiff failed to comply with Rule 56(d) of the Federal Rules of Civil Procedure; and (2) such noncompliance was inexcusable. ECF No. 141, 2013 WL 5409649.

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