Dorchen / Martin Associates, Inc. v. The Brook of Cheyboygan, Inc. et al

Filing 80

Opinion and ORDER denying 75 Motion for Reconsideration re 74 Order Denying Motion for Leave to File Second Amended Complaint. Signed by District Judge Thomas L. Ludington. (SGam)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
NORTHERN DIVISION
DORCHEN/MARTIN ASSOCIATES, INC.,
Plaintiff,

Case No. 11-10561
Honorable Thomas L. Ludington

v.
THE BROOK OF CHEBOYGAN, INC.;
PRACTICAL ENGINEERS, INC.,
Defendants.
___________________________________/
OPINION AND ORDER DENYING
PLAINTIFF’S MOTION FOR RECONSIDERATION
Plaintiff Dorchen/Martin Associates, Inc. filed a complaint against Defendants The Brook
of Cheboygan, Inc. and Practical Engineers, Inc., alleging copyright infringement. Plaintiff
claims it created an architectural plan that Defendants used unlawfully. Trial is set to commence
on March 12, 2013.
Months after the close of discovery, and after two motions for summary judgment had
been addressed, Plaintiff filed a motion to amend its complaint in order to add two counts and
seven defendants to the action. Specifically, Plaintiff argued that there are two additional
construction projects currently underway that infringe upon its copyrighted material: The Brook
of Boyne City and The Brook of Gaylord. According to Plaintiff, it was unable to discover the
existence of the projects in order to amend at an earlier time. The Court held that Plaintiff had
not demonstrated the requisite amount of diligence to warrant the late additions to the case, and
Plaintiff’s motion to amend was denied.
Plaintiff then filed a motion to reconsider the opinion and order denying its motion.
Plaintiff alleges that the January 14, 2013 Opinion and Order contains “palpable defects,” which

if remedied, would lead to a different result.1 Plaintiff’s arguments are without merit. The
motion for reconsideration will be denied.
I
Plaintiff initiated suit on February 11, 2011. Its first complaint was dismissed, but
Plaintiff was granted leave to amend, which it did on February 1, 2012. Plaintiff’s first amended
complaint consists of 24 pages and asserts one count of copyright infringement against both
Defendants. Plaintiff alleges that Defendants infringed on its copyrighted architectural plans
when they constructed of The Brook of Cheboygan facility during 2009.
Defendants filed an answer to Plaintiff’s first amended complaint on February 14, 2012,
and two weeks later the Court issued a case management and scheduling order to guide the
ongoing litigation. See Mar. 1, 2012 Case Mgmt. and Scheduling Order, ECF No. 19. The
scheduling order established, among others, the following dates: discovery due August 31, 2012;
dispositive motion cut-off September 28, 2012; final pretrial conference February 26, 2013; and
trial to commence on March 12, 2013. Id. at 1.
Nearly four months after the close of discovery, on December 21, 2012, Plaintiff moved
for leave to amend its complaint a second time. Plaintiff claimed that there are two other
facilities that infringe upon its copyrighted plans — The Brook of Boyne City facility and The
Brook of Gaylord facility — facilities it was previously unaware of.2 Plaintiff sought to file a
second amended complaint to account for these additional infringements: a 58-page document

1

It appears that Plaintiff has abandoned its desire to add the count and additional defendants relating to the
construction of The Brook of Boyne City. This is likely due to the fact that the evidence was compelling that
Plaintiff could have moved for these additions much earlier in the proceedings. Nevertheless, Plaintiff maintains
that there was no previous opportunity to add the count and defendants relating to The Brook of Gaylord.
2
More specifically, Plaintiff claimed that on October 22, 2012 it was only “anecdotally aware of the
possibility of a second Brook facility that would constitute a copyright infringement located in Boyne City,
Michigan.” Pl.’s Mot. Amend 4. And during the third week in November 2012 “entirely by accident, [Plaintiff]
stumbled upon yet another duplicate . . . construction [] which appears to have commenced between late September
2012 and late October 2012 in Gaylord.” Id.
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consisting of three counts and nine defendants. However, because Plaintiff did not identify
reasonable justification for the delay, and because of the prejudice such a late amendment would
cause, Plaintiff’s motion to amend was denied.
Plaintiff has asked the Court to reconsider this ruling, specifically as it relates to The
Brook of Gaylord. According to Plaintiff, the fact that construction had begun on The Brook of
Gaylord facility as early as the first week of October 2012 does not mean Plaintiff should have
been aware of the potential infringement at that time. Further, Plaintiff argues that any prejudice
that would ensue from this late amendment is the Defendants’ own doing, and is therefore
irrelevant to the analysis.
II
A motion for reconsideration will be granted if the moving party shows: “(1) a ‘palpable
defect,’ (2) the defect misled the court and the parties, and (3) that correcting the defect will
result in a different disposition of the case.” Michigan Dept. of Treasury v. Michalec, 181 F.
Supp. 2d 731, 733–34 (E.D. Mich. 2002) (quoting E.D. Mich. LR 7.1(h)(3)). A “palpable
defect” is “obvious, clear, unmistakable, manifest, or plain.” Michalec, 181 F. Supp. 2d at 734
(citing Marketing Displays, Inc. v. Traffix Devices, Inc., 971 F. Supp. 262, 278 (E.D. Mich.
1997)). “Motions for rehearing or reconsideration which merely present the same issues ruled
upon by the Court, either expressly or by reasonable implication, shall not be granted.”
Michalec, 181 F. Supp. 2d at 734 (brackets omitted) (quoting E.D. Mich. LR 7.1(h)(3)).
III
Plaintiff alleges two errors in the Court’s opinion and order that require reconsideration.
The first is that the timeline for The Brook of Gaylord construction was potentially
misunderstood. The second is that the prejudice that would result from allowing Plaintiff to

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amend, if any, was caused exclusively by Defendants and should not bear on the analysis. Each
claim is addressed below.
A
Plaintiff’s primary argument in favor of its motion for reconsideration is that there was no
way to know The Brook of Gaylord project potentially infringed on its copyrighted plans until
mid-December 2013. According to Plaintiff, only then had “sufficient progress [] been achieved
to afford at least some notice that the aesthetics of the Gaylord project were similar to the
copyrighted work.” Pl.’s Mot. 5, ECF No. 75. Plaintiff is ultimately incorrect. There were
numerous ways it could have learned the relevant information about The Brook of Gaylord
facility before mid-December.
On February 16, 2012, DFC of Gaylord, LLC (one of the additional defendants Plaintiff
seeks to add in its motion to amend), filed a Use Variance Request (UVR) with the City of
Gaylord. The UVR indicated DFC of Gaylord intended to construct a building to serve as a
“Senior Independent Living” facility.3 Defs.’ Resp. Ex. H, at 1–2. Further, the UVR established
that “[i]t has been our goal to keep area seniors in a private residential setting in their own
community.

We feel we have been able to accomplish this while actually improving the

communities we service.” Id. at 2 (emphasis added). Therefore, as early as February 2012,
Plaintiff could have discovered the intentions for an additional Brook facility in Gaylord that
would serve the same purpose as the Brook facilities in Roscommon, West Branch, Houghton
Lake, Cheboygan, and Boyne City.4

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The same function served by the other Brook facilities in Roscommon, West Branch, Houghton Lake, and
Cheboygan.
4
According to Plaintiff, each of these facilities is based off of its copyrighted architectural plan. Had
Plaintiff discovered the proposal for a new Brook facility in Gaylord, it certainly would have been on notice of the
potential for yet another infringement.
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Plaintiff complains that it could not be expected to monitor Michigan’s “1,857 individual
[jurisdictional] offices . . . to determine when and where design documents might be submitted
that would result in construction that would infringe an architectural works copyright.” Pl.’s
Mot. 5, n. 3.

But, of course, there were many more efficient ways of discovering this

information that Plaintiff did not pursue.
Plaintiff could have used a simple interrogatory addressing any future or additional
construction of Brook facilities to Defendant Practical Engineers. Plaintiff could have deposed
James Dewitt, an individual known to be involved with every Brook facility to date. Plaintiff
could have deposed Brian Ross, the manager of Defendant Practical Engineers. Both were listed
as a part of Defendants’ Rule 26(a)(1) disclosures, dated March 14, 2012, and both men could
have answered questions about future Brook facilities. Plaintiff chose not to depose them.
Plaintiff also could have requested the production of documents concerning other Brook facilities
throughout the state of Michigan.

Plaintiff’s requests for production, however, focused

exclusively on The Brook of Cheboygan and The Brook of Boyne City facilities. See Defs.’
Resp. Exs. E–F.
In Bentkowski v. Scene Magazine, 637 F.3d 689 (6th Cir. 2011), the Sixth Circuit
established five factors for considering modification of a case management schedule under
Federal Rule 16(b)(4), as would be required if Plaintiff’s motion to amend was granted. Those
factors are as follows: “(1) when the moving party learned of the issue that is the subject of
discovery; (2) how the discovery would affect the ruling below; (3) the length of the discovery
period; (4) whether the moving party was dilatory; and (5) whether the adverse party was
responsive to . . . discovery requests.” Id. at 696 (quoting Dowling v. Cleveland Clinic Found.,
593 F.3d 472, 478 (6th Cir. 2010)). During such analysis, “[t]he overarching inquiry in these

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overlapping factors is whether the moving party was diligent in pursuing discovery.”
Bentkowski, 637 F.3d at 696 (quoting Dowling, 593 F.3d at 478).
In this case, Plaintiff did not seek any discovery about additional projects. It issued only
one interrogatory to both Defendants. It did not depose a single person. It did not request the
production of documents related to any Brook facilities aside from Cheboygan and Boyne City.
Plaintiff could have discovered the existence of The Brook of Gaylord facility, and the
underlying plan it was based on, before mid-December 2012 if it had but attempted to do so. It
cannot sidestep these simple facts at this late stage of the proceedings. Plaintiff’s motion for
reconsideration on this ground will be denied.
B
Plaintiff also asserts that any resulting prejudice from modifying the case management
and scheduling order is irrelevant because that prejudice “was created by Defendant Practical
Engineers.” Pl.’s Mot. 8. Plaintiff reasons that Defendant Practical Engineer, through Brian
Ross, designed the Gaylord facility and sought the permits. According to Plaintiff, “[i]t is
therefore necessary to conclude that but for Defendant Practical’s conduct . . . there would be no
Gaylord project. Any prejudice to the Defendant(s) occasioned on a request to add claims
arising out of that project therefore are attributable exclusively to Defendant Practical.” Id. at 9.
While it may be true that Defendant Practical Engineers is responsible for creating The
Brook of Gaylord facility, that does not address the question of why Plaintiff did not advance
claims related to that facility until now. Plaintiff did not learn about the related claims until four
months after discovery had closed for reasons that are their own. The prejudice that would result
to Defendants if the trial is adjourned at this point is largely attributable to Plaintiff, despite the
fact that Defendants may be responsible for additional infringements. Plaintiff’s motion for
reconsideration will be denied on this ground as well.
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IV
Accordingly, it is ORDERED that Plaintiff’s Motion for Reconsideration, ECF No. 75,
is DENIED.

Dated: February 15, 2013

s/Thomas L. Ludington
THOMAS L. LUDINGTON
United States District Judge

PROOF OF SERVICE
The undersigned certifies that a copy of the foregoing order was served
upon each attorney or party of record herein by electronic means or first
class U.S. mail on February 15, 2013.
s/Tracy A. Jacobs
TRACY A. JACOBS

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