Kobi Karp Architecture & Interior Design, Inc. v. CASTELLANOS DESIGN STUDIO, LLC et al
Filing
94
ORDER Granting in Part and Denying in Part re 52 Plaintiff's MOTION for Summary Judgment filed by Kobi Karp Architecture & Interior Design, Inc. Signed by Judge Robert N. Scola, Jr on 10/14/2021. See attached document for full details. (cds)
United States District Court
for the
Southern District of Florida
Kobi Karp Architecture & Interior
Design, Inc., Plaintiff,
v.
RG Michigan 2014 LLC and
Gianfranco Rondon, Defendants.
)
)
)
)
) Civil Action No. 18-21079-Civ-Scola
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Order on Motion for Summary Judgment
Plaintiff Kobi Karp Architecture & Interior Design, Inc. (“Kobi Karp”)
brought this action against a former client, Defendants RG Michigan 2014 LLC
and Gianfranco Rondon (collectively, “Rondon”), 1 alleging that the Defendants,
including two defendants who have since settled, infringed certain of Kobi
Karp’s copyrights. (ECF No. 15.) Kobi Karp now brings this motion for
summary judgment. (ECF No. 52.) The Defendants opposed the motion (ECF
No. 87), and Kobi Karp filed a reply in support of the motion (ECF No. 90).
Having considered the parties’ briefing, the record, and the relevant legal
authorities, Kobi Karp’s motion is granted in part and denied in part. (ECF
No. 52.)
1. Background
A walk down Miami Beach reveals the allure of architectural design.
Geometric shapes and streamlined edges mix with pastel colors to create a
pastiche of past eras. These architectural forms imbue a place with history,
meaning, and creativity. It was this creativity that was granted protection in
the Architectural Works Copyright Protection Act. See Pub L. No. 101-650, 104
Stat. 5089, 5133 (1990). The House Report went so far as to quote architect
Michael Graves and advise that the act was to protect “the three-dimensional
expression of the myths and rituals of society.” H.R. Rep. No. 101-735, at 19
(1990).
Perhaps to evoke his own myths and rituals, Rondon retained Kobi Karp
in 2014 for architectural services in connection with a proposed hotel in Miami
1
Gianfranco Rondon is the principal of RG Michigan 2014, LLC. (See ECF No. 87-2 at ¶ 2.)
Beach. 2 (ECF No. 52-1 at ¶ 5; ECF No. 87-1 at ¶ 5.) Kobi Karp, a renowned
architectural firm, was to create preliminary concept plans, which were to
remain its property and could not be used without its written consent. (ECF
No. 52-1 at ¶¶ 6–7; ECF No. 87-1 at ¶¶ 6–7; ECF No. 51-2 at 8.) Kobi Karp
created architectural plans and drawings, delivered them to Rondon, and
ultimately submitted them to Miami Beach, which approved the plans. (ECF
No. 52-1 at ¶¶ 8, 11–12; ECF No. 87-1 at ¶¶ 8, 11–12; ECF No. 52-4.) After
preparing these architectural plans and drawings, Kobi Karp registered
copyrights protecting these works (the “Works”). (ECF No. 52-1 at ¶ 9; ECF
No. 87-1 at ¶ 9.)
Rondon did not retain Kobi Karp as architect for long. In mid-2016,
Rondon hired Castellanos Design Studio, LLC and Wesley Castellanos
(collectively “Castellanos”) 3 as the Architect of Record for the project. (ECF
No. 52-1 at ¶ 13; ECF No. 87-1 at ¶ 13; ECF No. 51-5 at 2.) However, the scope
of this new retention was limited—Castellanos was to merely “revis[e]” and
“reconfigure the current plans and provide a more efficient interior design.”
(ECF No. 52-1 at 260; ECF No. 52-2 at 14–49.) While it took Kobi Karp over one
year to submit plans to the city, Castellanos submitted plans approximately
three months after being retained. (ECF No. 52-1 at ¶¶ 11, 13, 16; ECF No. 811 at ¶¶ 11, 13, 16.) The only noticeable difference between Kobi Karp’s
copyrighted plans and Castellanos’s plans was a new signature block. (ECF
No. 52-1 at ¶ 17; ECF No. 81-1 at ¶ 17.)
Kobi Karp alleges that it was not aware of Castellanos’s role in the
project until November 2017, when it received a letter from Castellanos
notifying Kobi Karp of a “change in architect.” (ECF No. 52-1 at ¶ 23; ECF
No. 52-2 at ¶ 23; ECF No. 52-5 at 2.) The letter, which was dated June 2016
and copied Rondon, informed Kobi Karp that Castellanos had been
commissioned as the “successor Registered Architect” for the “elaboration of
the project.” (ECF No. 53-5 at 2.)
Following Rondon’s retention of Castellanos, Kobi Karp argues that it has
not been paid in full. In particular, Rondon has not paid Kobi Karp $38,000 in
invoices for work performed. (ECF No. 52-1 at ¶ 44; ECF No. 81-1 at ¶ 44.)
Moreover, Rondon has not paid Kobi Karp a $40,000 termination fee that is
provided in the Agreement. (ECF No. 52-1 at ¶ 45; ECF No. 87-1 at ¶ 45.) These
2 As part of this retention, Kobi Karp and Rondon entered into two agreements, one dated
February 25, 2014 and the other June 2014. (ECF No. 52-1 at ¶¶ 6, 10; ECF No. 87-1 at ¶¶ 6,
10) (collectively, the “Agreement”).
3 Upon consent, the Court entered an order of permanent injunction and final judgment as to
Castellanos. (ECF No. 45.)
amounts remain outstanding. (ECF No. 52-1 at ¶¶ 44–45; ECF No. 87-1 at
¶¶ 44–45.)
2. Legal Standard
Summary judgment is proper if, following discovery, the pleadings,
depositions, answers to interrogatories, affidavits, and admissions on file show
that there is no genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law. See Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); Fed. R. Civ. P. 56. “An issue of fact is ‘material’ if, under the
applicable substantive law, it might affect the outcome of the case.” Hickson
Corp. v. N. Crossarm Co., 357 F.3d 1256, 1259–60 (11th Cir.2004). “An issue of
fact is ‘genuine’ if the record taken as a whole could lead a rational trier of fact
to find for the nonmoving party.” Id. at 1260. All the evidence and factual
inferences reasonably drawn from the evidence must be viewed in the light
most favorable to the nonmoving party. See Adickes v. S.H. Kress & Co., 398
U.S. 144, 157 (1970); Jackson v. BellSouth Telecomms., 372 F.3d 1250, 1280
(11th Cir. 2004).
Once a party properly makes a summary judgment motion by
demonstrating the absence of a genuine issue of material fact, the nonmoving
party must go beyond the pleadings and designate specific facts showing that
there is a genuine issue for trial. See Celotex, 477 U.S. at 323–24. The
nonmovant’s evidence must be significantly probative to support the claims.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court will
not weigh the evidence or make findings of fact. See Anderson, 477 U.S. at 249;
Morrison v. Amway Corp., 323 F.3d 920, 924 (11th Cir. 2003). Rather, the
Court’s role is limited to deciding whether there is sufficient evidence upon
which a reasonable juror could find for the nonmoving party. Id. “If more than
one inference could be construed from the facts by a reasonable fact finder,
and that inference introduces a genuine issue of material fact, then the district
court should not grant summary judgment.” Bannum, Inc. v. City of Fort
Lauderdale, 901 F.2d 989, 996 (11th Cir. 1990).
3. Analysis
Kobi Karp filed a first amended complaint on April 27, 2018, alleging
seven causes of action: direct copyright infringement, contributory copyright
infringement, vicarious copyright infringement, unfair competition under 15
U.S.C. § 1125(a), unjust enrichment, civil conspiracy, and breach of contract.
(ECF No. 15.) Kobi Karp only moves for summary judgment on five of those
claims, namely, his claims for copyright infringement under 17 U.S.C. § 501(a)
(on direct, contributory, and vicarious infringement theories), civil conspiracy,
and breach of contract. The Court will discuss each in turn.
A. Copyright Infringement
1. Direct Infringement
A claim of direct copyright infringement requires that a plaintiff show
(1) ownership in a valid copyright and (2) the copying of original elements of the
copyrighted work. See Calhoun v. Lillenas Publ’g, 298 F.3d 1228, 1232 (11th
Cir. 2002). If a plaintiff does not provide evidence of direct copying, copying
may be shown by “demonstrating that the defendants had access to the
copyrighted work and that the works are substantially similar.” Herzog v.
Castle Rock Entm’t, 193 F.3d 1241, 1248 (11th Cir. 1999).
It is undisputed that Kobi Karp owns valid copyrights in the Works. (ECF
No. 52-1 at ¶ 25; ECF No. 52-2 at ¶ 25.) However, Kobi Karp’s arguments that
Rondon is liable for direct infringement largely mirror its arguments for
contributory and vicarious infringement. Kobi Karp argues not that Rondon
itself copied the Works, but that Castellanos copied the Works with Rondon’s
knowledge. (ECF No. 52 at 10; ECF No. 90 at 6–7.) As Kobi Karp has not
presented undisputed evidence that Rondon itself copied the Works, the Court
must deny summary judgment as to direct copyright infringement against
Rondon. See Herzog, 193 F.3d at 1249 (noting that direct infringement relates
to “the person who composed the [infringing] work”).
2. Contributory Infringement
It is well settled that an individual may be held liable for another’s
copyright infringement where the contributory infringer is “one who, with
knowledge of the infringing activity, induces, causes or materially contributes
to the infringing conduct of another.” Cable/Home Commc’n Corp. v. Network
Prods., Inc., 902 F.2d 829, 845 (11th Cir. 1990); see also Sony Corp. of Am. v.
Universal City Studios, Inc., 464 U.S. 417, 437 (1984) (holding that a
contributory infringer is one who “was in a position to control the use of
copyrighted works by others and had authorized the use without permission”)
(discussing Kalem Co. v. Harper Bros., 222 U.S. 55, 62–63 (1911)). The
requisite knowledge is objective—the contributory infringer must “know, or
have reason to know.” Casella v. Morris, 820 F.2d 362, 365 (11th Cir. 1987).
As an initial matter, contributory infringement rests on a finding that
someone else actually infringed the copyright. See DuBay v. King, 844 F. App’x
257, 266 n.9 (11th Cir. 2021) (“[T]here ‘can be no contributory infringement
without a direct infringement.’”) (quoting Peter Letterese & Assocs., Inc. v. World
Inst. of Scientology Enter., 533 F.3d 1287, 1298 n.11 (11th Cir. 2008)). It is
undisputed that Kobi Karp owns the copyrights at issue, and Rondon does not
contest the validity of those copyrights. (ECF No. 52-1 at ¶ 25; ECF No. 52-2 at
¶ 25.) Moreover, Rondon largely does not contest that Castellanos infringed the
Works. (ECF No. 87 at 5–7.) For the avoidance of doubt, the Court holds that
Castellanos infringed the Works, as Castellanos had access to the Works and
the plans and drawings that Castellanos prepared are nearly identical to Kobi
Karp’s copyrighted plans and drawings, except for the signature block. (See
ECF No. 52-1 at ¶¶ 32, 35; ECF No. 87-1 at ¶¶ 32, 35; ECF No. 51-5 at 3–15);
see also Herzog, 193 F.3d at 1249 (holding that copying can be shown by
demonstrating “that the person who composed the defendant’s work had
access to the copyrighted material and that there is substantial similarity
between the two works”). Therefore, as there is an act of direct infringement by
Castellanos, the relevant question is whether Rondon, “with knowledge of the
infringing activity, induce[d], cause[d] or materially contribute[d] to the
infringing conduct.” See Cable/Home Commc’n, 902 F.2d at 845.
First, knowledge. Rondon presses that he had no knowledge of any
infringement, as he believed that Castellanos and Kobi Karp were working
together. 4 (See ECF No. 87 at 5; ECF No. 87-2 at ¶¶ 27–28.) However, Rondon
provides no evidence to support such belief. See Hall v. Skipper, 808 F. App’x
958, 959 (11th Cir. 2020) (“Unsubstantiated assertions alone are not enough to
withstand a motion for summary judgment.”) (quoting Rollins v. TechSouth,
Inc., 833 F.2d 1525, 1529 (11th Cir. 1987)). In any event, Rondon’s subjective
belief is irrelevant, as the standard is objective. See Casella, 820 F.2d at 365
(“The standard of knowledge is objective: ‘Know, or have reason to know.’”)
(quoting Gershwin Publ’g Corp. v. Columbia Artists Mgmt., Inc., 443 F.2d 1159,
1162 (2d Cir. 1971)).
Objectively, Rondon knew, or had reason to know, that Castellanos was
infringing Kobi Karp’s Works. After being retained as the Architect of Record,
Rondon relies in large part on his declaration filed in support of the opposition to summary
judgment. (See ECF No. 87-2.) Kobi Karp cries that this is a sham affidavit. (See ECF No. 90
at 7.) While some portions of the declaration are contradicted by the evidence, much of the
declaration relates what Rondon believes he was told by others. What is more egregious is
Defendants’ counsels’ twisting of the Rondon declaration. For example, in its response to the
Plaintiff’s statement of facts, Rondon asserts that Kobi Karp in fact knew that Castellanos was
brought on to make minor changes to the Works, citing only to the Rondon declaration. (ECF
No. 87-1 at ¶¶ 13–15.) However, the Rondon declaration does not support this asserted fact, as
the declaration states only that Rondon thought someone told him that Kobi Karp was aware
that Castellanos was brought on the project. (ECF No. 87-2 at ¶¶ 24–27.) The opposition to the
statement of facts continues to make multiple factual assertions citing only to the Rondon
declaration with no evidentiary support. The Court disregards any such factual assertions that
are unsupported by evidence.
4
Castellanos told Rondon that their intent was to merely “revis[e]” and
“reconfigure the current plans.” (ECF No. 52-1 at 260; ECF No. 52-2 at 14–49.)
Rondon authorized Castellanos to submit the “reconfigure[d]” plans to the city,
and therefore Rondon had access to and authority over the new, infringing
plans that Castellanos submitted. (ECF No. 52-1 at 260; ECF No. 52-1 at ¶ 30;
ECF No. 52-2 at ¶ 30.) Moreover, the Agreement required that the Works could
not be used “by any other design professionals in any capacity without written
permission from [Kobi Karp].” (ECF No. 52-1 at ¶ 7; ECF No. 52-2 at 9.)
Rondon has presented no argument or evidence that such written consent was
obtained, and absent such written approval, Rondon had no objective reason to
believe that Kobi Karp consented to use of its Works. Therefore, the undisputed
evidence shows that Rondon knew, or had reason to know, of Castellanos’s
infringing acts.
Second, Rondon materially contributed to the infringing conduct. As
noted above, Rondon retained Castellanos and authorized them to submit new
plans to the city. (ECF No. 52-1 at ¶¶ 13, 30; ECF No. 87-1 at ¶¶ 13, 30.) The
infringing plans were submitted on behalf of Rondon, and Rondon was on
notice that Castellanos was merely revising the original Works. (See ECF
No. 52-1 at ¶¶ 30, 39–40; ECF No. 87-1 at ¶¶ 30, 39–40; ECF No. 51-5 at 17–
20.) Rondon took no action to prevent Castellanos from copying the original
Works. (ECF No. 52-1 at ¶ 37; ECF No. 87-1 at ¶ 37.) As the owner of the
project, and as the entity that retained Castellanos and paid Castellanos for
revising the original Works, Rondon materially contributed to Castellanos’s
infringing conduct. See Ranieri v. Adirondack Dev. Grp., LLC, 164 F. Supp. 3d
305, 347 (N.D.N.Y. 2016) (holding that defendants were liable for contributory
infringement where the defendants retained a competing drafting firm and the
firm reproduced copyrighted works with only minor modifications).
Therefore, as Rondon had knowledge and materially contributed to a
direct infringement, the Court grants summary judgment as to Rondon for
contributory infringement.
3. Vicarious Infringement
Vicarious liability may lie where “[a]n individual . . . has the ability to
supervise infringing activity and has a financial interest in that activity or . . .
personally participates in that activity[.]” S. Bell Tel. & Tel. Co. v. Assoc. Tel.
Directory Publishers, 756 F.2d 801, 811 (11th Cir. 1985); see also Stenograph,
LLC v. Advantage Software, Inc., No. 99-6685-CIV, 2006 WL 8433063, at *19
(S.D. Fla. Nov. 30, 2006) (Jordan, J.). There is no knowledge requirement to
establish vicarious liability; rather, liability can arise “even if [the defendants]
were ignorant of the infringement.” S. Bell Tel., 756 F.2d at 811. Kobi Karp only
argues the first prong, namely, that Rondon had the ability to supervise and
had a financial interest in Castellano’s infringement.
The Court holds that the vicarious liability standard is met. Rondon
retained and compensated Castellanos in connection with the infringing
activity. (ECF No. 52-1 at ¶¶ 13, 30, 39; ECF No. 87-1 at ¶¶ 13, 30, 39.) Even
though Rondon asserts that he relied on his construction team to interact with
Castellanos, Rondon had the ability to supervise as the owner of the property
and as the entity that retained Castellanos. See Broadcast Music, Inc. v.
Bloodhound Brew, LLC, No. 6:14-cv-1705-Orl-22KRS, 2015 WL 12830484, at
*3 (M.D. Fla. Nov. 2, 2015) (“The test is not whether [the defendant] actually
oversees the day-to-day operations [of the infringer],” but whether the
defendant “had the right and ability to manage and supervise [the infringer].”).
Moreover, Rondon had a financial interest in the infringing activity, as he
compensated Castellanos in connection with their limited role to revise and
reconfigure the original Works. (ECF No. 52-1 at ¶¶ 39–40; ECF No. 87-1 at
¶¶ 39–40; ECF No. 52-1 at 260; ECF No. 52-2 at 14–49.) It is of no moment
that the project was not ultimately profitable. When Castellanos undertook the
infringing activity, Rondon had a financial interest in the project and saved
money by not hiring Castellanos to create new architectural plans. See Klein &
Heuchan, Inc. v. Costar Realty Info., Inc., 707 F. Supp. 2d 1287, 1298 (M.D. Fla.
2010) (noting that a direct financial interest arises where the infringement
“saved [the defendant] the cost” of purchasing a non-infringing product)
(quoting Lowry’s Reports, Inc. v. Legg Mason, Inc., 271 F. Supp. 2d 737, 746 (D.
Md. 2003)).
Therefore, as Rondon had a direct financial interest and the ability to
supervise Castellanos’s activities as its architect of record, Rondon is
vicariously liable for Castellanos’s infringement of the Works.
B. Civil Conspiracy
Kobi Karp also moves for summary judgment on Count VI for civil
conspiracy. Under Florida law, civil conspiracy requires that the plaintiff
establish “(a) an agreement between two or more parties, (b) to do an unlawful
act or to do a lawful act by unlawful means, (c) the doing of some overt act in
pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts
done under the conspiracy.” Cordell Consultant, Inc. Money Purchase Plan and
Trust v. Abbott, 561 F. App’x 882, 886 (11th Cir. 2014) (quoting Raimi v.
Furlong, 702 So.2d 1273, 1284 (Fla. Dist. Ct. App. 1997)). Kobi Karp argues
that a finding of civil conspiracy is warranted based on “the underlying
allegations of direct copyright infringement and federal unfair competition[.]”
(ECF No. 52 at 15.) However, Kobi Karp did not move for summary judgment
on its unfair competition claim, and absent evidence of an underlying tort, the
Court cannot grant summary judgment for conspiracy on the basis of unfair
competition. See BMC-The Benchmark Mgmt. Co. v. Ceebraid-Signal Corp., 292
F. App’x 784, 787 (11th Cir. 2008) (holding that civil conspiracy requires a
showing of an underlying tort). Therefore, the Court will only evaluate Kobi
Karp’s alleged conspiracy to commit copyright infringement.
Rondon puts up a lackluster opposition, arguing that there was no overt
act and that Kobi Karp cannot show damages. (ECF No. 87 at 7–8.) However, a
larger issue looms—preemption. While no party briefed preemption, “a court
may consider an issue antecedent to . . . and ultimately dispositive of the
dispute before it, even an issue the parties fail to identify and brief.” U.S. Nat’l
Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993) (cleaned
up). Whether Kobi Karp’s claim for civil conspiracy is preempted by federal
copyright law is a threshold issue and dispositive, and therefore the Court will
review preemption sua sponte. 5
The Copyright Act holds that state laws are preempted where the state
law claim asserts “legal or equitable rights that are equivalent to any of the
exclusive rights within the general scope of copyright . . . and come within the
subject matter of copyright as specified by sections 102 and 103.” 17 U.S.C.
§ 301(a). Therefore, to determine whether a state law cause of action is
preempted, courts look to whether the rights at issue (1) “fall within the subject
matter of the copyright set forth in sections 102 and 103” and (2) “are
equivalent to the exclusive rights of section 106.” Crow v. Wainwright, 720 F.2d
1224, 1225–26 (11th Cir. 1983) (cleaned up). In reviewing the second prong,
courts look to whether “an extra element is required” in addition to the
elements of a copyright claim, therefore removing such state law claim out of
copyright preemption. Foley v. Luster, 249 F.3d 1281, 1285–86 (11th Cir.
2001). However, an “extra element” will only prevent preemption if that element
“changes the nature of the action so that it is qualitatively different from a
copyright infringement claim.” Bateman v. Mnemonics, 79 F.3d 1532, 1549
(11th Cir. 1996) (emphasis in original) (quoting Comput. Assocs. Int’l v. Altai,
982 F.2d 693, 716 (2d Cir. 1992)).
Here, Kobi Karp’s claim for civil conspiracy on the basis of copyright
infringement is preempted by the Copyright Act. Indeed, courts have held that
5
Indeed, if the court failed to review preemption and granted the Plaintiff relief for civil
conspiracy, it would potentially be granting relief that is barred by federal statute. While courts
may not act sua sponte in regard to some fact-intensive questions, see McIntosh v. Royal
Caribbean Cruises, Ltd., 5 F.4th 1309, 1312 (11th Cir. 2021), preemption is a threshold legal
question that may be addressed. See U.S. Nat’l Bank of Or., 508 U.S. at 447; Pac. Gas and Elec.
Co. v. State Energy Res. Conservation & Dev. Comm’n, 461 U.S. 190, 201 (1983) (“The question
of preemption is predominantly legal[.]”).
“‘any state-based claim for which the alleged copying is the sole factual
pleading’ is preempted by the Copyright Act.’” DataTrak Bus. Sols., Inc. v.
ComputerBanc, Inc., No. 10-60372-CIV, 2010 WL 11597692, at *7–8 (S.D. Fla.
Nov. 8, 2010) (Seitz, J.) (quoting Pena-Rivera v. Editorial Am., S.A., No. 961437-Civ, 1997 U.S. Dist. LEXIS 11795, at *5 (S.D. Fla. May 5, 1997) (holding
state-law claims preempted where the claims were “nothing more than
reincarnations of the copyright claim”)). Here, Kobi Karp’s arguments
concerning the civil conspiracy center around the Defendants’ “agreement to
utilize [Kobi Karp’s] copyright Works in connection with the ‘revision’ to
same[.]” (ECF No. 52 at 15.) These allegations are near identical to Kobi Karp’s
copyright claims and amount to no more than recitations of contributory and
vicarious infringement. See Poet Theatricals Marine, LLC v. Celebrity Cruises,
Inc., 515 F. Supp. 3d 1292, 1306 (S.D. Fla. 2021) (Altonaga, J.) (“Because
copyright law already recognizes . . . vicarious copyright infringement concepts,
which extend joint and several liability to those who participate in the copyright
infringement, a civil conspiracy claim does not add substantively to the
underlying federal copyright claim and should therefore be preempted.”)
(quoting Ultraflo Corp. v. Pelican Tank Parts, Inc., 823 F. Supp. 2d 578, 588
(S.D. Tex. 2011)). Therefore, as the Works are copyrightable under the first
prong of the Crow test, see 17 U.S.C. § 102(a)(8), and as civil conspiracy does
not add a qualitatively different element to copyright infringement, see
DataTrak, 2010 WL 11597692, at *8 (“[T]he agreement element of the
conspiracy claim does not make that claim qualitatively different from
Plaintiffs’ copyright claim.”), Kobi Karp cannot prevail under civil conspiracy
based on its copyright infringement claim. Therefore, summary judgment is
denied as to Kobi Karp’s claim for civil conspiracy to the extent based on
copyright infringement.
C. Breach of Contract
Last, Kobi Karp moves for summary judgment on its claim for breach of
contract. To establish a breach of contract, a plaintiff must prove (1) the
existence of a contract, (2) a material breach of that contract, and (3) damages
resulting from that breach. See Vega v. T-Mobile USA, Inc., 564 F.3d 1256,
1272 (11th Cir. 2009). It is undisputed that an agreement existed between the
parties. (ECF No. 52-1 at ¶¶ 6, 10; ECF No. 87-1 at ¶¶ 6, 10.) Moreover, there
was a material breach of that agreement—Rondon failed to timely pay
(1) invoices that were “due on receipt,” totaling $38,000, as well as (2) a
$40,000 termination fee. (ECF No. 52-1 at ¶¶ 44–45; ECF No. 15-19 at 14); see
Centurion Air Cargo, Inc. v. United Parcel Serv. Co., 420 F.3d 1146, 1151 (11th
Cir. 2005) (holding that failure to pay for services constitutes a material breach
where the agreement specifies the timing of payments). Rondon does not
contest these totals or the applicability of the termination fee provision. (ECF
No. 87 at 8–10.) Based on the above, Kobi Karp suffered damages from
Rondon’s breach totaling $78,000.
However, Rondon argues that summary judgment is inappropriate as
Kobi Karp “failed to contradict” Rondon’s affirmative defense that Kobi Karp
caused damage to Rondon. (ECF No. 87 at 8–10.) Yet Rondon does not state
which affirmative defense he is referencing. It appears that Rondon is
referencing affirmative defense eighteen, which asserts “comparative
negligence” as “[c]ertain work produced by the [P]laintiff required the Defendant
to incur further fees and cost which exceed any of the amounts alleged
outstanding.” (ECF Nos. 24, 32.) But “comparative fault is not a defense to a
breach of contract claim.” Fed. Deposit Ins. Corp. v. Kunzmann Appraisals, Inc.,
No. 12-CV-80525, 2014 WL 12531543, at *3 (S.D. Fla. Feb. 11, 2014)
(Ryskamp, J.). Rather, comparative negligence may be introduced “as evidence
offered on the issue of mitigation of damages.” Tampa Elec. Co. v. Stone &
Webster Eng’g Corp., 367 F. Supp. 27, 38 (M.D. Fla. 1973); see also Kunzmann
Appraisals, 2014 WL 12531543, at *3. Therefore, the Court will grant Kobi
Karp’s motion for summary judgment for breach of contract. However, the
parties dispute the scope of the damages owed, and therefore summary
judgment is not granted as to the scope of damages. 6
4. Conclusion
In total, the Court grants in part and denies in part the Plaintiff’s
motion for summary judgment. (ECF No. 52.) In particular, the Court grants
the Plaintiff’s motion as to contributory and vicarious infringement as well as to
liability for breach of contract. However, the Court denies summary judgment
as to direct infringement, civil conspiracy, and damages arising from the
breach of contract.
Done and ordered in Miami, Florida, on October 14, 2021.
______________________________
Robert N. Scola, Jr.
United States District Judge
6 Kobi Karp argues that the negligence of which Rondon complains—an allegedly defective land
survey—contractually lies with Rondon, as the Agreement states that “[Kobi Karp] is not
responsible for [the] accuracy of [any] survey furnished by [Rondon].” (ECF No. 15-19 at 8.)
However, it appears to be disputed whether Kobi Karp used a survey furnished by Rondon or
whether Kobi Karp used a different, incorrect survey. (ECF No. 87-2 at ¶ 17.)
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