Robert Kubicek Architects & Associates Incorporated v. Bashas' Incorporated

Filing 27

ORDER denying Kubicek's 22 Motion for Reconsideration. Signed by Senior Judge Frederick J Martone on 6/17/2013.(LFIG)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Bashas’ Inc., et al.,
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Debtors,
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_________________________________ )
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Robert Kubicek Architects & Associates,)
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Inc.
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Plaintiff,
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vs.
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Bashas’ Inc.,
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Defendant.
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In re:

No. CV 12-01497-PHX-FJM
No. BK 09-16050-JMM
Adv. No. 12-AP-0226-JMM
ORDER

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The court has before it Kubicek’s motion for reconsideration of our Order dated May
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8, 2013 (doc. 22), in which we held that Kubicek had failed to state a claim against Bashas’
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for either direct or contributory copyright infringement.
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Kubicek’s complaint asserted broad allegations that Bashas’ willfully infringed
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Kubicek’s architectural plans and misappropriated proprietary materials, but it asserted no
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facts to identify what copyrighted materials Bashas’ infringed or how or when the materials
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were copied or used. The majority of the allegations in the complaint involved claims of
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direct and contributory infringement that occurred before Bashas’ Chapter 11 filing, all of
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which were discharged in bankruptcy. We concluded that there were no allegations in the

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complaint that would support a claim against Bashas’ for post-petition direct or contributory

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infringement. Kubicek challenges this conclusion in its motion for reconsideration, again

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referring to paragraphs in the complaint that only generally assert allegations involving

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unidentified “Copyrighted Works,” with no reference to when or how these “Works” were

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infringed. This is insufficient to state a claim, particularly regarding post-petition conduct.

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Kubicek again complains that it was unable to plead with more particularity because

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it had an inadequate opportunity to conduct discovery. It now asserts that it has obtained

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“newly discovered evidence” in the trial against The Bosely Group, Kubicek v. Bosely, CV-

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11-2112-PHX-DGC (the “Bosely trial”), putting it “in a position for the first time to plead

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with substantial detail the particulars of Bashas’ infringing activities.” Motion at 5. First,

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this “newly discovered” evidence allegedly came to light during the Bosely trial, almost a

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month before our ruling on Bashas’ motion to dismiss. Yet Kubicek never sought to amend

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its response to the motion before us. Second, this “new” evidence still does not identify

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when the allegedly infringing actions occurred–an essential element in this case given that

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Bashas’ liability is limited to post-petition conduct. Third, the so-called new evidence was

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obtained from “knowledgeable former employees of Bashas’ and Mr. Bosley himself,”

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Motion at 4. But there is no allegation that Kubicek was somehow prevented from timely

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obtaining this information. Kubicek has been aggressively pursuing these claims against

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Bashas’ and Bosely for years. Evidence sufficient to support its claims would have been

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discovered with the exercise of reasonable diligence.

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IT IS ORDERED DENYING Kubicek’s motion for reconsideration (doc. 22).

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DATED this 17th day of June, 2013.

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