Humphreys & Partners Architects LP v. Atlantic Development & Investments Incorporated et al

Filing 140

ORDER: IT IS ORDERED denying Plaintiff Humphreys & Partners Architects, LP's Amended Motion for Partial Summary Judgment (Doc. 113 ). IT IS FURTHER ORDERED denying Plaintiff Humphreys & Partners Architects, LP's Motion to Strike (Doc. 127 ). (See attached Order for complete details). Signed by Judge John J Tuchi on 4/27/16.(JAMA) Modified on 4/27/2016 to add Written Opinion (WO) (JAMA).

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1 WO NOT FOR PUBLICATION 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Humphreys & Partners Architects LP, Plaintiff, 10 11 ORDER v. 12 No. CV-14-01514-PHX-JJT Atlantic Development & Investments Incorporated, et al., 13 Defendants. 14 15 At issue are Plaintiff Humphreys & Partners Architects, LP’s (HPA) Amended 16 Motion for Partial Summary Judgment (Doc. 113, MSJ), to which Defendants filed a 17 Response (Doc. 126, Resp. to MSJ) and HPA filed a Reply (Doc. 128, Reply to MSJ); 18 and HPA’s Motion to Strike (Doc. 127, MTS), to which Defendants filed a Response 19 (Doc. 129, Resp. to MTS) and HPA filed a Reply (Doc. 130, Reply to MTS). The Court 20 finds these matters appropriate for decision without oral argument. See LRCiv 7.2(f). 21 I. BACKGROUND 22 Defendants, including Atlantic Development and Investments, Inc. (ADI)—a 23 Connecticut corporation that conducts business in Arizona—and Auburn Ventures, LP 24 (AV)—a Colorado limited partnership that conducts business in Arizona—sought to 25 develop a plot of land in Castle Rock, Colorado into a senior living center.1 In November 26 2011, Defendants employed architect Paul Hendricks Masse and his firm, PHM Ltd., to 27 1 28 The Amended Complaint, the operative pleading, lists 13 Defendants, including ten entities and three individuals. (Doc. 68, FAC.) All 13 Defendants filed a joint Response to the HPA’s Motion for Summary Judgment. (Doc. 124.) 1 complete schematic design plans (the “Masse Plans”) and Jones Engineering Associates 2 to complete earthwork grading plans (the “Jones Plans”). Once these initial plans were 3 complete, Defendants sought further architectural planning services from Plaintiff 4 HPA—a Texas firm that conducts business in Texas. On April 25, 2012, Defendants 5 accepted a proposal by HPA (“Proposal Agreement”) to provide renderings and plans that 6 included elevations and other information necessary to proceed with development at 7 Castle Rock. The Proposal Agreement provided as follows: 11 All documents furnished by HPA pursuant to this Agreement shall remain the property of HPA and may not be used by the Owner for another project without HPA’s prior written consent. Payment for design services does not allow use of the design for construction documents by others without written approval from HPA. There is no implied license granted in this Agreement. 12 (Doc. 65-4, HPA’s Statement of Facts in Supp. of Its MSJ (PSOF), Ex. F, Proposal 13 Agreement.) Defendants agreed to pay HPA $30,000 in compensation and gave HPA 14 portions of the Masse and Jones Plans from which to conduct its work. 8 9 10 15 After HPA concluded the work described in the Proposal Agreement, Defendants 16 and HPA negotiated from June to August 2012 as to whether HPA would provide more 17 comprehensive architectural services to Defendants. Defendants ultimately decided to 18 retain another architect—Defendants Patrick William Nook and PWN Architects and 19 Planners, Inc.—and informed HPA that its work on the project was totally concluded on 20 or about August 7, 2012. 21 Thereafter, Defendants gave the renderings and plans completed by HPA to PWN 22 Architects for the further design and construction process at Castle Rock. HPA claims 23 Defendants’ use of the renderings and plans violated HPA’s copyright in the materials, 24 and, on July 7, 2014, HPA brought the present suit, raising a single claim of copyright 25 infringement under 17 U.S.C. §§ 502-504 against seven Defendants. (Doc. 1, Compl.; 26 FAC ¶¶ 48-55.) HPA now moves for partial summary judgment, asking the Court to rule 27 that no dispute of material fact remains that HPA owns valid copyrights in the three 28 -2- 1 documents it prepared for Defendants, including that HPA meets the copyright 2 requirements of authorship, originality and creativity. (MSJ at 4-12.) 3 This case already has an extensive procedural history. The seven original 4 Defendants filed an Answer to the Complaint on October 14, 2014, which included a 5 single Count Counterclaim. (Doc. 30.) On November 3, 2014, HPA filed a Motion to 6 Strike the Counterclaim (Doc. 36), which the Court denied on January 22, 2015 7 (Doc. 48). HPA filed an Answer to the one-Count Counterclaim on February 2, 2015. 8 (Doc. 54.) 9 The Court held a Rule 16 Scheduling Conference (Doc. 45) and entered a 10 Scheduling Order on December 9, 2014 (Doc. 46). The original fact discovery deadline 11 was June 30, 2015, the expert discovery deadline was October 23, 2015, and the 12 dispositive motion deadline was December 4, 2015. (Doc. 46.) “Early discovery” was to 13 focus on HPA’s vicarious liability or contributory infringement claim and whether HPA 14 holds a valid copyright to its work. (Doc. 46.) On February 17, 2015, pursuant to the 15 parties’ request, the Court extended the fact discovery deadline to August 17, 2015, and 16 the expert discovery deadline to December 4, 2015. (Doc. 60.) 17 On February 27, 2015, HPA filed a Motion to Amend the Complaint to add six 18 new Defendants, and Defendants did not oppose the Motion. (Docs. 62, 66.) On 19 March 25, 2015, the Court granted the Motion to Amend and HPA filed the Amended 20 Complaint. (Docs. 66, 68.) The same day, HPA also filed a Motion for Partial Summary 21 Judgment that was essentially identical to the one presently before the Court. (Docs. 63- 22 65.) 23 On April 27, 2015, the original seven Defendants filed an Answer to the Amended 24 Complaint, which again included a single Counterclaim. (Doc. 82.) Considering the 25 addition of six new Defendants, the parties jointly requested another Rule 16 Scheduling 26 Conference, which the Court held on May 6, 2015. (Docs. 81, 83, 85.) At the Conference 27 and on the parties’ request, the Court terminated all pending case deadlines, denied the 28 -3- 1 pending Motion for Partial Summary Judgment with leave to re-file, and reserved setting 2 a new case schedule pending the filing of Answers by the six new Defendants. (Doc. 85.) 3 Four of the six new Defendants filed an Answer on May 26, 2015 (Doc. 97), and a 4 fifth new Defendant filed an Answer on June 22, 2015 (Doc. 101). As for the sixth new 5 Defendant, it joined the other 12 Defendants in filing an Amended Answer and 6 Counterclaim to the Amended Complaint on July 7, 2015, which included an 11-Count 7 Counterclaim against HPA.2 (Doc. 106.) Defendants’ new claims against HPA are based 8 on certain Defendants’ assertion of their own copyright as well as HPA’s alleged 9 violations of the Proposal Agreement. 10 Defendants then indicated they intended to amend their Amended Answer and 11 Counterclaim once again, to try to avoid HPA’s filing of Rule 12(b) Motions to Dismiss 12 the Counterclaim, and the Court granted Defendants leave to amend. (Docs. 107, 108.) 13 While Defendants did file a “Revised First Amended Combined Answer to First 14 Amended Complaint” and Counterclaim on August 24, 2015 (Doc. 110), HPA 15 nonetheless filed two Rule 12(b) Motions to Dismiss the Counterclaim on September 3, 16 2015 (Docs. 111, 112). The next day, HPA re-filed its Motion for Partial Summary 17 Judgment—the Motion presently before the Court. (Doc. 113.) After Defendants timely 18 filed a Response and then amended it a week later, HPA filed a Motion to Strike the 19 amended Response on November 4, 2015, which is also presently before the Court. 20 (Docs. 124, 126, 127.) 21 The Court resolved HPA’s two Rule 12(b) Motions to Dismiss on April 15, 2016, 22 dismissing Count One of the Counterclaim with prejudice. (Doc. 138.) Counts Two 23 through Eleven of the Counterclaim remain pending. The operative pleadings in this 24 25 26 27 28 2 Because the amendment-as-a-matter-of-course period under Federal Rule of Civil Procedure 15(a) had passed for 11 Defendants who had already filed an Answer and Counterclaim to the Amended Complaint (Docs. 82, 97), they violated Rule 15(b) by neither seeking leave to amend from the Court nor providing the Court with HPA’s written consent for the amendment. They also violated Local Rule 15.1(a) by failing to provide the Court with a copy of the amended pleading indicating in what respects it differed from their previous Answer and Counterclaim. See LRCiv 15.1(a). HPA filed no objection to the amended pleading. -4- 1 matter are currently Doc. 68, HPA’s one-Count Amended Complaint, and Doc. 110, 2 Defendants’ eleven-Count Amended Counterclaim with the exception of Count One. 3 The result of the parties’ extensive pleadings and motion practice is that, while 4 almost two years have passed since HPA filed this case on July 7, 2014, no discovery or 5 dispositive motion deadlines are currently set. The Court will set the remaining case 6 schedule at the next Rule 16 Scheduling Conference on June 6, 2016. (Doc. 139.) 7 Although discovery is presumably ongoing in this case, the Court will now turn to HPA’s 8 Motion for Partial Summary Judgment (Doc. 113) and related Motion to Strike Response 9 (Doc. 127). 10 II. LEGAL STANDARD 11 Under Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment is 12 proper when: (1) the movant shows that there is no genuine dispute as to any material 13 fact; and (2) after viewing the evidence most favorably to the non-moving party, the court 14 finds that the movant is entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex 15 Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Eisenberg v. Ins. Co. of N. Am., 815 F.2d 16 1285, 1288-89 (9th Cir. 1987). Under this standard, “[o]nly disputes over facts that might 17 affect the outcome of the suit under governing [substantive] law will properly preclude 18 the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 19 (1986). A “genuine issue” of material fact arises only when the “evidence is such that a 20 reasonable jury could return a verdict for the nonmoving party.” Id. 21 In considering a motion for summary judgment, the court must regard as true the 22 non-moving party’s evidence, if it is supported by affidavits or other evidentiary material. 23 Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. However, the non-moving party 24 may not merely rest on its pleadings; it must produce some significant probative evidence 25 tending to contradict the moving party’s allegations, thereby creating a material question 26 of fact. Anderson, 477 U.S. at 256-57 (holding that the non-moving party must present 27 affirmative evidence in order to defeat a properly supported motion for summary 28 judgment); First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289 (1968). -5- 1 “A summary judgment motion cannot be defeated by relying solely on conclusory 2 allegations unsupported by factual data.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 3 1989). “Summary judgment must be entered ‘against a party who fails to make a showing 4 sufficient to establish the existence of an element essential to that party’s case, and on 5 which that party will bear the burden of proof at trial.’” United States v. Carter, 906 F.2d 6 1375, 1376 (9th Cir. 1990) (quoting Celotex, 477 U.S. at 322). 7 III. ANALYSIS 8 To establish copyright infringement, a party must show (1) ownership of a valid 9 copyright, and (2) unauthorized copying by another party of the constituent original 10 elements of the work. Feist Publ’ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 11 (1991). Registration is not required to possess a valid copyright, but it is a prerequisite to 12 bringing a suit for copyright infringement. 17 U.S.C. § 102(a). A certificate of 13 registration made within five years of the first publication of the work is prima facie 14 evidence of a copyright’s validity. 17 U.S.C. § 410(c). 15 HPA moves for summary judgment as to only the first element of its infringement 16 claim, and specifically that it owns valid copyrights in the three works it prepared under 17 the Proposal Agreement with Defendants: “Auburn Ridge 12208 Architectural Work” as 18 documented under U.S. Copyright Office Certificate of Registration Number VAu 1-170- 19 460 (“Architectural Work”); “Auburn Ridge 12208 Technical Drawing” as documented 20 under Certificate of Registration Number VAu 1-170-461 (“Technical Drawing”); and 21 “12208 Auburn Ridge Rendering” as documented under Certificate of Registration 22 Number VAu 1-190-332 (“Rendering”). (MSJ at 3.) 23 A. Statutory Presumption 24 HPA first argues that the registration of its works with the U.S. Copyright Office 25 is prima facie evidence of the validity of its copyright in the works and Defendants have 26 produced no reliable evidence to rebut the presumption of validity. (MSJ at 5-6 (citing 17 27 U.S.C. § 410(c)).) In response, Defendants contend that (1) HPA’s work was not original 28 and (2) HPA’s Certificates of Registration are invalid because HPA failed to inform the -6- 1 Copyright Office that its work was based on preexisting materials, as the Copyright Act 2 requires. (Resp. to MSJ at 3-5 (citing 17 U.S.C. § 409(9)).) In reply, HPA argues that its 3 work was sufficiently original and Defendants have waived their invalidity contention (1) 4 by failing to ask the Court to consult with the Register of Copyrights to determine 5 whether the alleged defect in HPA’s copyright applications would have led to the denial 6 of copyright registrations, and (2) under the doctrine of primary jurisdiction, by failing to 7 pursue a remedy in the Copyright Office, the only agency with jurisdiction to invalidate a 8 copyright registration. (Reply to MSJ at 9-11.) 9 1. Rebuttal of the Statutory Presumption 10 In resolving a copyright infringement claim, the presumption of copyright validity 11 created by a plaintiff’s copyright registrations can be rebutted by the accused infringer’s 12 showing that plaintiff’s work is not original. Three Boys Music Corp. v. Bolton, 212 F.3d 13 477, 488-89 (9th Cir. 2000). Where the accused infringer offers evidence that the 14 plaintiff’s product was copied from another work or other probative evidence as to 15 originality, the burden of proving validity shifts back to the plaintiff. Entm’t Research 16 Grp. v. Genesis Creative Grp., Inc., 122 F.3d 1211, 1217-18 (9th Cir. 1997) (citing North 17 Coast Indus. v. Jason Maxwell, Inc., 972 F.2d 1031, 1033 (9th Cir. 1992)). 18 “Originality is the indispensable prerequisite for copyrightability. The originality 19 requirement, however, does not mean that for valid copyright protection, the copyright 20 must represent something entirely new under the sun.” North Coast, 972 F.2d at 1033. 21 Originality requires that a work “owes its origin” to the “author,” whose contribution is 22 “more than a trivial variation, something recognizably his own.” Id. (quoting Sid & Marty 23 Krofft Television v. McDonald’s Corp., 562 F.2d 1157, 1163 n.5 (9th Cir. 1977)). 24 However, to rebut the statutory presumption, an accused infringer must simply produce 25 some probative evidence showing that plaintiff’s work was not original but copied from 26 other work. Entm’t Research, 122 F.3d at 1218 (citing Durham Indus., Inc. v. Tomy 27 Corp., 630 F.2d 905, 908 (2d Cir. 1980) (holding that the presumption of validity was 28 -7- 1 rebutted where ‘one look’ at the plaintiff’s allegedly copyrightable figures revealed a 2 complete absence of any originality)). 3 Here, Defendants have produced evidence that they provided the Masse and Jones 4 Plans to HPA, who merely revised those Plans, and that HPA’s work is substantially 5 similar to the Masse and Jones Plans, the copyright for which Defendants hold.3 (Resp. to 6 MSJ at 6-10; Doc. 125, Defs.’ Revised Statement of Facts (DSOF) at 20-21 ¶¶ 45-46.) 7 While HPA disputes that Defendants gave HPA all of the Masse and Jones Plans (Reply 8 to MSJ at 5-6) and does not admit that it used the Plans in completing its work (Reply to 9 MSJ at 2), Defendants have produced sufficient evidence of a lack of originality to shift 10 the burden of proving validity back to HPA. 2. 11 Remedies in the U.S. Copyright Office 12 With regard to Defendants’ assertion that HPA’s copyright registrations are 13 invalid because HPA failed to inform the Copyright Office that its work was based on 14 other work—contained both in Defendants’ Amended Answer and Counterclaim and in 15 Defendants’ Response (Docs. 110, 126)—HPA argues that Defendants must seek relief 16 for such a claim from with the Register of Copyrights, via a request from the Court, or 17 through the Copyright Office directly, in its primary jurisdiction over such a claim. 18 (Reply to MSJ at 9-11.) 19 As HPA points out, 17 U.S.C. § 411(b)(1) provides that a Certificate of 20 Registration that contains inaccurate information still complies with the Copyright Act 21 3 22 23 24 25 26 27 28 The Court does not sustain any of HPA’s evidentiary objections at this stage. With regard to HPA’s objections to party Defendants’ declarations made for the purpose of their Response (e.g., Reply to MSJ at 6), Rule 56(c) explicitly permits a party to file such declarations in support of a motion for summary judgment or response thereto. With regard to HPA’s objections related to Defendants’ timeliness of production of documents (e.g., Reply to MSJ at 6), discovery is still ongoing in this case, as the Court pointed out above. Indeed, HPA filed the present Motion for Partial Summary Judgment on September 3, 2015, a mere ten days after the newly named Defendants filed their combined Answer to the Amended Complaint—albeit a revision of their initial combined Answer filed six weeks before. (Docs. 106, 110, 113.) The newly named Defendants hardly had time to provide discovery to HPA, let alone supplement it, prior to the deadline for filing their Response to HPA’s Motion for Partial Summary Judgment, and the Court will not penalize them by way HPA’s procedural maneuver. -8- 1 unless “(A) the inaccurate information was included on the application for copyright 2 registration with knowledge that it was inaccurate; and (B) the inaccuracy of the 3 information, if known, would have caused the Register of Copyrights to refuse 4 registration.” Pursuant to a 2008 amendment to the Copyright Act, if a party alleges 5 inaccurate information, “the court shall request the Register of Copyrights to advise the 6 court whether the inaccurate information, if known, would have caused the Register of 7 Copyrights to refuse registration.” 17 U.S.C. § 411(b)(2). 8 While this amendment to the Copyright Act states that a request from a court to 9 the Register of Copyrights is triggered when inaccurate information in a copyright 10 application is “alleged,” the Register of Copyrights has stated, “[B]efore asking the 11 Register of Copyrights whether she would have refused to register a copyright . . . a court 12 should feel free to determine whether there is in fact a misstatement of fact.” DeliverMed 13 Holdings, LLC v. Schaltenbrand, 734 F.3d 616, 625 (7th Cir. 2013) (citing Response of 14 the Register of Copyrights to Request Pursuant to 17 U.S.C. § 411(b)(2) in Olem Shoe 15 Corp. v. Wash. Shoe Co., No. 09-cv-23494, 2010 WL 3505100, at *3 n.4 (S.D. Fla. Sep. 16 3, 2010)). Indeed, the Seventh Circuit Court of Appeals has cautioned “both courts and 17 litigants to be wary of using this device [in § 411(b)(2)] in the future” on account of the 18 delay it may cause to the case. Id. That court advises district courts to first determine if a 19 litigant has demonstrated the elements of § 411(b)(1), namely, “that (1) the registration 20 application included inaccurate information; and (2) the registrant knowingly included 21 the inaccuracy in his submission to the Copyright office.” Id. 22 Here, a genuine dispute exists as to whether HPA’s work was derivative of the 23 Masse and Jones Plans—including the extent to which HPA received copies of the Masse 24 and Jones Plans—and thus the Court cannot determine if HPA’s copyright application 25 contained inaccurate information, let alone whether HPA knowingly included any 26 inaccurate information. (Compare DSOF at 20-21 ¶¶ 45-46 with Docs. 65-5, 65-6, 65-7, 27 PSOF Exs. G, H, I.) As a result, the question to the Register of Copyrights as to whether 28 HPA’s provision of the alleged inaccurate information would have affected its copyright -9- 1 approval may not be ripe. But, as the Court already noted, Defendants have rebutted the 2 presumption HPA’s copyright registration provided by proffering evidence of a lack of 3 originality. As a result, HPA’s copyright registration is not dispositive of its ownership in 4 a valid copyright; it must make a showing of authorship, creativity and originality. In 5 other words, an inquiry into HPA’s copyright registration is moot at this stage.4 6 Finally, HPA contends that the Court does not have jurisdiction to declare HPA’s 7 copyright registrations invalid. The Court agrees that, to the extent Defendants may be 8 asking the Court to declare HPA’s copyright registrations cancelled, the Register of 9 Copyrights has primary jurisdiction to make such a declaration. See Syntek 10 Semiconductor Co., Ltd. v. Microchip Tech. Inc., 307 F.3d 775, 780-82 (9th Cir. 2002). 11 B. Copyright Validity 12 As an alternative to relying on the statutory presumption of copyright validity 13 through registration, HPA argues that no genuine dispute of material fact as to the 14 validity of its copyrights exists, entitling it to summary judgment as to the first element of 15 its infringement claim. (MSJ at 6-11.) Specifically, HPA argues that (1) even if its works 16 were derivative of the Masse and Jones Plans, Defendants provided the Plans to HPA and 17 its works have the requisite originality, and (2) the Masse and Jones Plans, upon which 18 Defendants contend HPA based its works, were uncopyrightable ideas. (MSJ at 6-11; 19 Reply to MSJ at 4-9.) In response, Defendants contend that (1) HPA’s works were simply 20 revisions to Defendants’ copyrighted works, and (2) to the extent HPA added new 21 elements to the Masse and Jones Plans, they were either co-authored by Defendants or 22 standard features not subject to copyright protection. (Resp. to MSJ at 6-15.) 23 24 25 26 27 28 4 HPA also argues that Defendants have waived any challenge to the validity of its copyright registrations by failing to ask the Court to make the requisite request of the Register of Copyrights under § 411(b)(2) by now. This argument is similarly moot at this stage, but even if it were not, HPA provides no legal support for such a proposition. Indeed, in a case in which neither party raised § 411(b)(2), the Seventh Circuit Court of Appeals indicated the opposite to be true: “[I]gnoring a clear statutory directive due to the inadvertence of the parties would defeat the purpose of 17 U.S.C. § 411(b)(2) and deprive the Register of its right to weigh in on precisely this issue.” DeliverMed, 734 F.3d at 624. - 10 - 1 The resolution of these issues comes down to an examination of the originality of 2 HPA’s works, the “sine qua non of copyright.” See Feist Publ’ns, 499 U.S. at 345. HPA 3 essentially asks the Court to rely on the case law holding that just because a work is 4 substantially similar to another work does not mean it is not original and that originality 5 requires only slightly more than a trivial variation, but HPA does not point the Court to 6 specific, undisputed examples of originality in its works. (See, e.g., MSJ at 6-7; Reply to 7 MSJ at 6-7, 9.) Apart from conclusory statements regarding the originality of its works, 8 HPA attempts to demonstrate originality in its briefs by drawing a comparison between 9 its unit plans and Defendants’ Masse and Jones Plans, but this comparison lacks any 10 citation to the record and is therefore abstract. (See Reply to MSJ at 9.) 11 Otherwise, HPA and Defendants produce controverting evidence of originality 12 through, for example, testimony of an HPA architect that she “did not copy anything 13 from any other source” when she created the HPA plans and drawings (PSOF Ex. H ¶ 5) 14 and Defendants’ expert’s testimony regarding the identical nature of the copyrightable 15 elements of the Masse and Jones Plans and HPA’s plans and drawings (DSOF at 20-21 16 ¶¶ 45-46). On a motion for summary judgment, the Court may not weigh the 17 controverting evidence and make a factual finding. Anderson, 477 U.S. at 255. 18 Defendants have produced sufficient evidence to create a genuine dispute as to whether 19 HPA’s works contain the requisite originality for copyright protection, and the Court 20 must therefore deny HPA’s request for summary judgment as to that issue. 21 C. Motion to Strike Response 22 After Defendants filed their Response to HPA’s Motion for Summary Judgment, 23 they filed an Amended Response a week later with the principal purposes of changing the 24 numbering system of their exhibits and providing additional pin cites to the record. 25 (Resp. to MSJ at 1 n.1.) HPA moved to strike the Amended Response as a tardy and 26 impermissible second Response. (MTS at 1-2.) Because HPA was not prejudiced by 27 Defendants’ filing of the Amended Response and it served to facilitate both HPA’s and 28 the Court’s use of the Response, the Court will deny HPA’s Motion to Strike. However, - 11 - 1 Defendants are warned that, in the future, they must seek leave of Court to make any 2 amendment not as-of-right after a deadline. 3 4 5 6 7 IT IS THEREFORE ORDERED denying Plaintiff Humphreys & Partners Architects, LP’s Amended Motion for Partial Summary Judgment (Doc. 113). IT IS FURTHER ORDERED denying Plaintiff Humphreys & Partners Architects, LP’s Motion to Strike (Doc. 127). Dated this 27th day of April, 2016. 8 9 Honorable John J. Tuchi United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 12 -

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