Frost-Tsuji Architects v. Highway Inn, Inc. et al
Filing
203
ORDER DENYING MOTION TO DISMISS AND JOINDER THEREIN re 64 , 167 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 7/10/2014. (emt, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
FROST-TSUJI ARCHITECTS,
)
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Plaintiff,
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vs.
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HIGHWAY INN, INC.; HO’OLA
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MAU, LLC; BRYCE UYEHARA,
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A.I.A., INCORPORATED; J.
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KADOWAKI, INC.; FESTIVAL
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MANAGEMENT CORPORATION; et
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al,
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Defendants.
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_____________________________ )
CIVIL NO. 13-00496 SOM/BMK
ORDER DENYING MOTION TO
DISMISS AND JOINDER THEREIN
ORDER DENYING MOTION TO DISMISS AND JOINDER THEREIN
I.
INTRODUCTION.
Before the court is a motion filed by Defendants
Highway Inn, Inc., and Ho’ola Mau LLC (collectively, “Highway
Inn”) to dismiss the Second Amended Complaint filed by Plaintiff
Frost-Tsuji Architects (hereinafter “FTA”).
The substance of
this motion makes it clear that it only seeks dismissal of
Count V of the Second Amended Complaint, as it provides no
justification for dismissing any other claim.
See ECF No. 64.
Defendant Palekana Permits LLC has filed a joinder in Highway
Inn’s motion.
ECF No. 167.
The court denies the motion without a hearing pursuant
to Local Rule 7.2(d), determining that Count V adequately states
a claim for a violation of 17 U.S.C. § 1202(b)(1).
II.
FACTUAL BACKGROUND
In December 2012, Highway Inn hired FTA, an
architectural and interior design firm, to design and oversee the
development of a full-service restaurant in Kaka`ako on Oahu,
Hawaii.
ECF No. 53 ¶ 14, 53-1.
The parties signed and executed
a letter agreement and an additional services agreement that set
forth FTA’s obligations.
See ECF Nos. 53-1 and 53-2.
FTA created designs, plans, and specifications for the
restaurant for which it has copyrights.
See ECF No. 53 ¶ 16.
On April 25, 2013, Highway Inn terminated the letter
agreement and an additional services agreement.
Id. ¶ 20.
FTA alleges that Highway Inn and Defendants Bryce E.
Uyehara, A.I.A. Incorporated (“Uyehara”); J. Kadowaki, Inc.;
Festival Management Corporation; Bargreen Ellingson of Hawaii,
Inc.; Palekana Permits, LLC; and Iwamoto and Associates, LLC,
made copies of FTA’s designs and drawings and used FTA’s work in
the permitting and construction process for the restaurant.
¶ 22.
Id.
In particular, FTA alleges that the drawings submitted
during the permitting process by Uyehara, the firm hired to
replace FTA, are “nearly identical” to those created and
copyrighted by FTA.
Id. ¶¶ 5, 22.
FTA also alleges that it
asked Defendants to stop using and to return all copyrighted
plans, but those plans were not returned and were instead given
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to Uyehara to use as “original plans” for the restaurant.
Id.
¶¶ 24-25.
FTA alleges that, on September 26, 2013, it obtained
copies of the plans Ho`ola Mau submitted for permitting.
FTA
alleges that those plans were “virtually identical” to its
copyrighted plans and that its “copyright notices had been
removed from each and every document in the permit plan set.”
Id. ¶ 27.
FTA alleges that Defendants therefore copied and used
its designs and materials in violation of its copyrights.
III.
LEGAL STANDARD.
Highway Inn’s motion, ECF No. 64, seeks dismissal of
the entire Second Amended Complaint, while arguing only for the
dismissal of Count V of the Second Amended Complaint.
The court
deems the motion to apply to only Count V, as no argument has
been made with respect to the other claims asserted in the Second
Amended Complaint.
This court previously set forth the standard
for motions to dismiss under Rule 12(b)(6) of the Federal Rules
of Civil Procedure.
See ECF No. 34, PageID #s 258-60.
That
standard is incorporated herein by reference.
IV.
ANALYSIS.
There is no dispute that Count V of the Second Amended
Complaint asserts a violation of 17 U.S.C. § 1202(b)(1), which
states:
No person shall, without the authority of the
copyright owner or the law-3
(1) intentionally remove or alter any
copyright management information
. . . .
knowing, or, with respect to civil remedies
under section 1203, having reasonable grounds
to know, that it will induce, enable,
facilitate, or conceal an infringement of any
right under this title.
Accordingly, it has been said that,
To state a claim for removal of [copyright
management information] under 17 U.S.C.
§ 1202(b)(1), a plaintiff must allege that a
defendant: (1) without authority of the
copyright owner or the law; (2) intentionally
removed or altered [copyright management
information]; (3) knowing or having
reasonable grounds to know that the removal
will induce, enable, facilitate, or conceal
an infringement of the federal copyright
laws.
Imageline, Inc. v. CafePress.com, Inc., 2011 WL 1322525, *6 (C.D.
Cal. Apr. 6, 2011) (citing 17 U.S.C. § 1202(b)(1)).
Highway Inn claims that Count V is defective because it
fails to plead facts demonstrating that it knew or had reasonable
grounds to know that the alleged removal of the copyright
management information from the plans for the restaurant induced,
enabled, facilitated, or concealed an infringement of copyright
rights.
This argument is unpersuasive.
Count V of the Second Amended Complaint asserts that
Defendants removed FTA’s copyright management information from
its plans, including the copyright notice that identified FTA as
having a copyright for those plans.
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It alleges that Defendants
then made copies of the plans, gave copies of the plans to FTA’s
replacement, and then submitted “nearly identical” and “virtually
identical” plans in the permitting process for the restaurant.
See ECF No. 53 ¶¶ 22-25, 27, 59.
These allegations sufficiently
assert that Defendants had knowledge or reasonable grounds to
know that the removal of the copyright management information
would “induce, enable, facilitate, or conceal an infringement of
the federal copyright laws.”
At the very least, it could be
reasonably inferred, if those allegations are true, that
Defendants had the required knowledge.
The court recognizes that
there may well be defenses to Count V.
Perhaps, for example, FTA
did not own the exclusive right to the plans.
But the court,
taking all allegations as true, cannot say that Defendants could
not be found to have knowingly enabled, facilitated, or concealed
a copyright violation or at least to have had reasonable grounds
to know that such a copyright violation would flow from the
removal of the copyright management information located on FTA’s
plans.
This is sufficient to allege a claim under § 1202(b)(1).
The court is unpersuaded by Highway Inn’s argument that
it needs to know which Defendant removed copyright notices from
which plans, as the Second Amended Complaint alleges that all
Defendants removed the copyrights from every plan submitted for
permitting.
If it turns out that FTA, in asserting Count V
against all Defendants, did not comply with its obligations under
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Rule 11 of the Federal Rules of Civil Procedures, the party or
parties wronged may seek appropriate relief.
The court, however,
will not, on the present record, dismiss Count V simply because
it is asserted against every Defendant.
The court notes that, for the first time in the Reply
in support of the Motion to Dismiss, Highway Inn argues that the
court should dismiss Count V with prejudice because it would be
futile to allow amendment.
In addition to being a moot argument,
given the denial of the motion, Highway Inn is reminded that,
under Local Rule 7.4, a “reply must respond only to arguments
raised in the opposition.
Any argument raised for the first time
in the reply shall be disregarded.”
V.
TO THE EXTENT HIGHWAY INN SEEKS A MORE DEFINITE
STATEMENT, THAT REQUEST IS DENIED.
Although Highway Inn says that it is not moving for a
more definite statement “at this time,” see ECF No. 64-1, PageID
# 674, it argues for several pages that this court should order
FTA to provide it with a more definite statement of the claim
asserted in Count V of the Second Amended Complaint under Rule
12(e) of the Federal Rules of Civil Procedure.
Highway Inn
argues that, to the extent FTA is allowed to file a Third Amended
Complaint, the court should require it to provide more factual
detail with respect to Count V.
To the extent Highway Inn may be
asking for a more definite statement, that request is denied.
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Rule 12(e) permits a party to move for a more definite
statement when a complaint is so “vague or ambiguous that the
party cannot reasonably prepare a response.”
Fed. R. Civ. P.
12(e); see also McHenry v. Renne, 84 F.3d 1172, 1177 (9th Cir.
1996).
The basic principles of pleading practice are governed by
Rule 8.
Rule 8(a)(2) requires a plaintiff’s complaint to contain
“a short and plain statement of the claim showing that the
pleader is entitled to relief,” and Rule 8(d)(1) requires each
allegation to “be simple, concise, and direct.”
Fed. R. Civ. P.
8(b),(e).
Count V is not so vague or ambiguous that Defendants
cannot prepare a responsive pleading.
Count V alleges that all
Defendants removed the copyright management information from the
plans created by FTA and used them in connection with the
construction and permitting of the restaurant.
No. 53 ¶ 59.
See ECF
Count V incorporates by reference earlier
paragraphs, id. ¶ 58, including paragraphs asserting that FTA had
copyrighted its plans and included copyright notices on the
plans, that Defendants made copies of the plans, that the
architects that replaced FTA submitted for permitting “nearly
identical” and “virtually identical” plans that had FTA’s
copyright notices removed from every document.
27, 28, and 30.
Id. ¶¶ 16, 22,
These factual allegations are sufficient.
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V.
CONCLUSION
Highway Inn’s motion to dismiss Count V of the Second
Amended Complaint and the joinder therein, ECF Nos. 64 and 167,
are denied.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 10, 2014.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Frost-Tsuji Architects v. Highway Inn, Inc., et al., Civ. No. 13-00496
SOM/BMK; ORDER DENYING MOTION TO DISMISS AND JOINDER THEREIN
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