HANOVER ARCHITECTURAL SERVICE, P.A. v. CHRISTIAN TESTIMONY-MORRIS, N.P. et al

Filing 178

OPINION. Signed by Judge Kevin McNulty on 7/21/2015. (anr)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

HANOVER ARCHITECTURAL SERVICE,
P.A.,
Plaintiff,

Civ. No. 2:10-5455 (KM)(SCM)
OPINION

V.

CHRISTIAN TESTIMONY-MORRIS, N.P.,
et al.,
Defendants.

KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court upon the motion for
reconsideration by Defendants Christian Testimony-Morris, N.P., Visbeen
Construction Co., D.P.; Peter Raymond Wells, Architect, LLC; Reiner
Group, Inc.; Energy Saving and Electrical Corp., Inc.; James Chang;
Kenneth Visbeen; Peter Raymond Wells; Jinfar Liu; and John Does 1-40
(collectively “Christian Testimony”l) (ECF No. 168). I write this opinion
primarily for the parties and will not repeat the analysis in my May 18,
2015 opinion. (See Opinion, ECF No. 166; Order, ECF No. 167). That
opinion denied two motions for summary judgment by Plaintiff Hanover
Architectural Service, P.A. (“Hanover”) and denied one motion for partial
summary judgment by Christian Testimony. Christian Testimony now
moves for reconsideration of its motion for partial summary judgment.
Christian Testimony’s motion is a textbook example of everything a
reconsideration motion should not be. I nevertheless discuss its
arguments. For the reasons set forth below, the motion is DENIED.

I use “Christian Testimony’ as a shorthand for all defendants, who are
identified individually as the context requires.

1

I.

STANDARD

Motions for reconsideration are governed by Local Civil Rule 7.1(i).
See Bowers v. Nat’l Collegiate Athletics Assoc., 130 F. Supp. 2d 610, 612
(D.N.J. 2001). That Rule states:
[A] motion for reconsideration shall be served and filed
within 14 days after the entry of the order or judgment on
the original motion by the Judge or Magistrate Judge. A brief
setting forth concisely the matter or controlling decisions
which the party believes the Judge or Magistrate Judge has
overlooked shall be filed with the Notice of Motion.
L. Civ. R. 7.1(i).
A motion for reconsideration is “an extremely limited procedural
vehicle.” Tehan v. Disability Mgmt. Servs., Inc., 111 F. Supp. 2d 542, 549
(D.N.J. 2000) (quoting Resorts Int’l, Inc. v. Greate Bay Hotel and Casino,
Inc., 830 F. Supp. 826, 831 (D.N.J. 1992)). The movant has the burden of
demonstrating: (1) an intervening change in the controlling law has
occurred; (2) evidence not previously available has become available; or
(3) granting the motion is necessary to correct a clear error of law or
prevent manifest injustice. Max’s Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3c1 669, 677 (3d Cir. 1999); Beety—Monticelli v. Comm’r
of Soc. Sec., 343 F. App’x 743, 747 (3d Cir. 2009) (non-precedential). In
other words, such a motion may be granted where facts or controlling
legal authority were presented to, but not considered by, the court.
Mauro v. N.J. Supreme Ct., 238 F. App’x 791, 793 (3d Cir. 2007) (non
precedential).
Reconsideration is not warranted, however, where (1) the movant
simply repeats the cases and arguments previously analyzed by the
court, Arista Recs., Inc. v. Flea World, Inc., 356 F. Supp. 2d 411, 416
(D.N.J. 2005); see also Tehan, 111 F. Supp. 2d at 549 (“Motions for
reconsideration will not be granted where a party simply asks the court
to analyze the same facts and cases it had already considered . . .“); or
.

2

(2) the movant has filed the motion merely to disagree with or relitigate
the court’s initial decision, icL; see Morris v. Siemens Components, Inc.,
938 F. Supp. 277, 278 (D.N.J. 1996) (“A party’s mere disagreement with
a decision of the district court should be raised in the ordinary appellate
process and is inappropriate on a motion for reargument.”). The motion
is not a vehicle for a litigant to raise new arguments or present evidence
that could have been raised prior to the initial judgment. See Bapu Corp.
v. Choice Hotels Int’l, Inc., Civ. No. 07—5938, 2010 WL 5418972, at *2
(D.N.J. Dec. 23, 2010) (citing P. Schoenfeld Asset Mgmt. LLC v. Cendant
Corp., 161 F. Supp. 2d 349, 352 (D.N.J. 2001)).
Accordingly, relief pursuant to Rule 7.1 is reserved for those
instances where the Court may have “overlooked” pertinent facts or
controlling case law. See L. Civ. R. 7.1(i). Because the requirements are
so stringent, motions for reconsideration typically are not granted;
rather, relief is “an extraordinary remedy” to be granted “sparingly.” A.K.
Stamping Co., Inc., v. Instrument Specialties Co., Inc., 106 F. Supp. 2d
627, 662 (D.N.J. 2000) (quoting NL Indus., Inc., v. Commercial Union Ins.
Co., 935 F. Supp. 513, 516 (D.N.J. 1996)).
II.

2
DISCUSSION

I refer the parties to the statement of facts in my May 18, 2015
Opinion (ECF No. 166). In that Opinion, I denied Christian Testimony’s
motion for partial summary judgment due to the numerous issues of
material fact in this case.
Christian Testimony now makes—reiterates, really—the following
arguments: (1) Hanover cannot prove its copyright infringement claims;
(2) Christian Testimony is at least a joint owner of the works in question;
(3) Christian Testimony has an implied license to use the drawings for
which it paid; (4) Christian Testimony has not violated the Digital
2
For ease of reference, attached is a key to the record citation
abbreviations used in this opinion and the May 18, 2015 opinion.

3

Millennium Copyright Act, 17 U.S.C.

§ 1202(a) (“DMCA”); (5) Hanover

cannot prove secondary liability, vicarious liability, or conspiracy; (6)
Hanover cannot sue individual defendants without piercing the corporate
veil; (7) Hanover cannot prove any misrepresentation; and (8) Hanover
has not stated any claim for damages.
The argument seems to be that, in my May 18, 2015, opinion, I
overlooked every one of those eight arguments. I here address, and once
again reject, these arguments. To the limited extent there is anything
new, there is no justification for Christian Testimony’s having failed to
raise it before. The discussion here is supplemental to, and should be
read in conjunction with, my earlier opinion.
a. Hanover’s copyright infringement claims
Christian Testimony first argues that Hanover cannot identify
anything original in Chiming (“Jimmy”) Liou’s drawings. (CT 168 Mot. 26) Christian Testimony also lists specific design elements that it argues
are common, and therefore unoriginal. (Id. 3—4) As I have previously
stated, a Certificate from the Copyright Office is prima facie evidence of a
valid copyright, and therefore of some original element in the copyrighted
work. See Value Grp., Inc. v. Mendham Lake Estates, L.P., 800 F. Supp.
1228, 1232 (D.N.J. 1992); Masquerade Novelty, Inc. v. Unique Indus., Inc.,
912 F.2d 663, 667 (3d Cir. 1990) (referring to 17 U.S.C. § 4 10(c)); Ford
Motor Co. v. Summit Motor Products, Inc., 930 F.2d 277, 290—91 (3d Cir.
1991). And, Hanover’s expert, Douglass Asral, Registered Architect,
stated in an expert report that “there are certain aspects of Mr. Liou’s
design that are arbitrary and serve no specific function are uniquely
particular to his vision, such as the angled walls in the Lobby, Main
Sanctuary and the partially recessed Entrance Doors.” (Han. 116 Mot.
Ex. 17, ECF No. 12 1-3, 12 1-4 (“Asral Report”)) Asral’s report is evidence
that Hanover’s drawings may be original, and therefore copyrightable. It
would be inappropriate to decide among expert opinions regarding
4

architectural design on a motion for summary judgment.
Christian Testimony also reiterates its argument that because it
proposed many of the design elements of Liou’s drawings, the drawings
were unoriginal. That another person germinated the ideas contained in
a work does not preclude a claim of copyright infringement. See 17
U.S.C. § 102 (“[i]n no case does copyright protection for an original work
of authorship extend to any idea, procedure, process, system, method of
operation, concept, principle, or discovery.” (emphasis added)); Cmty. for
Creative Non-Violence v. Reid, 490 U.S. 730, 737 (198) (“As a general
rule, the author is the party who actually creates the work, that is, the
person who translates an idea into a fixed, tangible expression entitled to
copyright protection.”) Thus, even if Christian Testimony proposed the
ideas underlying Liou’s designs, the designs would belong to Liou if he
translated those ideas into tangible designs.
b. Christian Testimony’s claim of joint ownership in the
works in question
Christian Testimony next argues that if there is anything original
in Liou’s drawings, it is a co-owner, as it contributed to Liou’s design
effort. (CT 168 Mot. 7—8) Christian Testimony argues that this conclusion
is compelled by Brownstein v. Lindsay, 742 F.3d 55, 64 (3d Cir. 2014).
The Copyright Act of 1976 defines a joint work as “a work prepared by
two or more authors with the intention that their contributions be
merged into inseparable or interdependent parts of a unitary whole.” 17
U.S.C. § 101. Under 17 U.S.C. § 410, the certificate of registration “shall
constitute prima facie evidence of the validity of the copyright and of the
facts stated in the certificate.” Because the copyright certificates in this
case do not name Christian Testimony as a sole or joint owner, Christian
Testimony must offer evidence to rebut this prima facie evidence.
“For two or more people to become co-authors, each author must
contribute some non-trivial amount of creative, original, or intellectual

5

expression to the work and both must intend that their contributions be
combined.” Brownstein v. Lindsay, 742 F.3d 55, 64 (3d Cir. 2014).
Christian Testimony has not offered any evidence of the parties’ intent to
embark on a joint design effort. The record indicates that Hanover
drafted the designs with input from Christian Testimony—not that the
parties drafted the designs together. Therefore, the argument of joint
ownership is unpersuasive.
More importantly, as I noted in my previous opinion, the degree of
similarity between the drawings in this case and the extent of any
copying remain issues of fact. Those issues bar summary judgment as to
the joint ownership claim.

c. Christian Testimony’s claim of an implied license to
use the drawings for which it paid
Christian Testimony next argues that it has an implied license to
use Liou’s drawings because it paid for them. (CT 168 Mot. 7—8) However,
as I have previously found, the scope of any implied license is clearly in
dispute. See MacLean Assocs., Inc. v. Wm. M Mercer-Meidinger-Hansen,
Inc., 952 F.2d 769, 779 (3d Cir. 1991) (Even where a license is found,
“the licensor can still bring suit for copyright infringement if the
licensee’s use goes beyond the scope of the nonexclusive license.) Of
course, Liou’s designs were meant to be used, and not simply as wail
decorations. But, it is not clear that Hanover would have approved the
alteration of its designs or the use of its designs by others in the event
3
Hanover was not retained as construction administrator. These material
issues of fact as to the license issue preclude summary judgment.

As I have previously written, there is evidence that Hanover refused to
modify its designs when asked to do so by Christian Testimony because Liou
didn’t want a modified design to “bear [his] name and damage [his] reputation
of creativity.” (Chang Decl. Ex. 14.) Moreover, Christian Testimony’s own
position is that Hanover refused to perform its duties unless it was appointed
construction administrator for the project, citing a letter from Liou on
September 19, 2007. (CT 124 Stmt. ¶79 (citing Chang Deci. ¶73, Ex. 14.) In the
6

d. Christian Testimony’s assertion that is has not
violated the DMCA
Christian Testimony argues that Hanover cannot prove it violated
the Digital Millennium Copyright Act, 17 U.S.C.

§ 1202(a) (“DMCA”). (CT

168 Mot. 10—12) Christian Testimony cites to testimony by its second
hired architect, Raymond Wells, who indicated that he created new
drawings rather than copying or removing copyright information from
Liou’s drawings. Still at issue, however is the extent to which Wells’s
drawings were similar to or copied from Liou’s drawings. If it is proven
4
that Wells copied Liou’s drawings, intent to do so may be inferred from
the circumstances. Christian Testimony’s arguments that Wells was
required to create a new set of drawings and did so are therefore
unavailing. Its reliance on the format in which Liou’s and Wells’s
drawings were completed is also misplaced, as this evidence does not
show it was impossible to copy Liou’s drawings.
5

same September 19, 2007 letter, Hanover informs Christian Testimony that its
designs are protected by copyright law and that Christian Testimony must
obtain Hanover’s written permission before using the drawings. (Chang Deci.
Ex. 14.) In a previous September 5, 2007 letter, Liou also warned that his
designs were copyrighted and could not be used without written permission,
and wrote that he was concerned that, if Hanover was not involved with
construction administration, Christian Testimony “may expose my firm and
myself to certain risks during and/or after construction.” (Amended Complaint
Ex. 13, ECF No. 22-1.) These letters suggest Hanover may have intended to
grant an implied license only if it was appointed construction administrator, as
expected.
Evidence pertaining to this issue includes a letter dated April 23, 2008,
from Christian Testimony’s counsel, Paul E. Rusen, informing Hanover that
Christian Testimony had the exclusive rights to use Hanover’s design plans,
that Christian Testimony intended to use the design plans, and that Wells was
appointed as construction administrator. (Han. 116 Stmt. ¶32 (citing Han. 116
Mot. Ex. 10, ECF No. 122-1)) Also relevant is the report of Hanover’s expert,
Douglass Asral, indicating that Wells’s drawings are substantially similar to
Liou’s drawings. (Han. 116 Mot. Ex. 17, ECF No. 121-3, 121-4 (“Asral Report”))
Christian Testimony has argued that Liou’s drawings could not have
been copied because they were submitted in read-only pdf format. (CT 124
Stmt. ¶99 (citing Wells Deci. ¶7)) It has also argued that the AutoCAD software
4

7

e. Hanover’s secondary liability, vicarious liability, and
conspiracy claims
As to secondary or vicarious liability, Christian Testimony argues
that Hanover has not sufficiently alleged a separate financial benefit as
to each defendant it accuses of secondary liability. (CT 168 Mot. 12—14)
Specifically, Christian Testimony asserts that because the parties it hired
(the other defendants) were paid on an hourly basis, they would have
received the same compensation, regardless of any alleged copyright
infringement. Christian Testimony cites to Artists Music, Inc. v. Reed Pub.
(USA), Inc., in which a landlord was not liable for a tenant’s infringing
activity because the rent was not “tied to the tenant’s revenues or profits
derived from the alleged copyright infringements.” No. 73163, 1994 WL
191643 (S.D.N.Y. May 17, 1994). It also cites to Deutsch v. Arnold, in
which a landlord was not liable for a tenant’s infringing activity as there
was “no proof of any acts of [the landlord’s] infringement,” the landlord
was not a partner in the tenant’s activity, the landlord received nothing
from the infringing activity, and there was no proof the landlord knew of
the activity. 98 F.2d 686, 688 (2d Cir. 1938).
However, the defendants in this case were not so far removed from
6
the alleged infringing activity. They each had a financial stake in the
project being completed, and they each participated in its completion.
used by Wells “requires a draftsperson to draw each and every line and detail.”
(CT 168 Mot. 11)
6
All defendants were involved with the design of the Conversion Project or
the construction of the project based on the designs. (CT 124 Strnt. ¶J5—8.)
Visbeen, Wells, the Remer Group, and Liu each supervised their portions of the
design or construction. Visbeen of Visbeen Construction was responsible for at
least a portion of the permits application process, communicated with Christian
Testimony about modifications to Hanover’s designs, and participated in
meetings with Hanover and the Parsippany Building Department. (Supp. Liou
Deci. ¶25; CT 124 Stmt. 25; Chang Decl. ¶28; Visbeen Decl. ¶4.) Wells of Wells
Architect drafted the fmal design plans used by Christian Testimony. Liu of
ESEC designed the fire alarm system. (CT 124 Stmt. 8; 2d Am. Liou Dec. ¶40.)
Reiner Group designed the heating, ventilation, and air conditioning system.
(CT 124 Stmt. ¶7.)

8

Christian Testimony’s arguments regarding vicarious and secondary
liability are therefore unavailing.
Christian Testimony’s arguments regarding Hanover’s conspiracy
claims fail for the same reason. Christian Testimony argues that Hanover
does not allege specific facts that individual defendants allegedly did in
furtherance of any conspiracy. (CT 168 Mot. 15—17) A conspiracy,
however, may be inferred from circumstantial evidence. See, e.g., Morgan
v. Union Cnty. Bci. of Chosen Freeholders, 633 A.2d 985, 998 (N.J. Super.
Ct. App. Div. 1993) (internal quotation and citation omitted) (“It is well
known that the nature of a conspiracy is such that more often than not
the only type of evidence available is circumstantial in nature.”). Hanover
has presented some evidence of copyright infringement, and Christian
Testimony admittedly hired the other defendants to complete its
construction project. (CT 124 Stmt. ¶J5—8.) As I have already explained,
it is reasonable to infer that if Christian Testimony infringed on
Hanover’s copyrights, the parties involved in the construction project
would have known that. See Banco Popular N. Am. v. Gandi, 876 A.2d
253, 263 (N.J. 2005) (internal quotation and citation omitted) (“It is
enough [for liability] if you understand the general objectives of the
scheme, accept them, and agree, either explicitly or implicitly, to do your
part to further them.”). There is an issue of fact.

f. Hanover’s claims against individual defendants
Christian Testimony argues that suing the individuals in addition
to the corporate entities in this case requires piercing the corporate veil.
(CT 168 Mot. 18—19) That is incorrect. Hanover does not attempt to sue
the individuals in their capacities as corporate officers, but rather as
individual actors. The corporate structure does not shield individuals
from their own torts. See Donsco, Inc. v. Casper Corp., 587 F.2d 602, 606
(3d Cir. 1978) (“A corporate officer is individually liable for the torts he
personally commits and cannot shield himself behind a corporation when

9

he is an actual participant in the tort.

.

.

.

The fact that an officer is

acting for a corporation also may make the corporation vicariously or
secondarily liable under the doctrine of respondeat superior; it does not
however relieve the individual of his responsibility.”)

.

g. Hanover’s negligent misrepresentation claims
Christian Testimony argues that Hanover cannot prove negligent
misrepresentation, as there is no evidence of an agreement to appoint
Hanover as the construction administrator. (CT 168 Mot. 17—18)
Hanover accuses Chang of negligently misleading Hanover into
thinking Hanover would be administering the construction project. (Han.
116 Mot. 24—25.) In his declaration, Liou says he relied on the false
representation that Hanover would be appointed construction
administrator and therefore agreed to provide services to Christian
Testimony under the Second and Third Agreements at below the fair
market price. Liou says he expected to “recoup” his “investment” in the
project by administering the construction of it. Christian Testimony,
however, did not retain Hanover as construction administrator, causing
economic loss to Hanover. (2d Am. Liou Deci. ¶J16, 18, 20, 22.) Thus,
there is a dispute as to whether false representations were made and
whether Hanover relied on them to its detriment.
The Third Circuit explained the distinction between individual tort
liability and liability resulting from piercing the corporate veil thus:
“[Individual tort] liability is distinct from the liability resulting from
the ‘piercing of the corporate veil’ as that term is commonly used.
The effect of piercing a corporate veil is to hold the owner liable.
The rationale for piercing the corporate veil is that the corporation
is something less than a bona fide independent entity. [Individual
defendant] is liable here as an actor rather than as an owner. His
liability is in no way dependent on a finding that [the corporation]
is inadequately capitalized, that the corporation is a mere alter ego
of [the individual defendant], that the corporate form is being used
to perpetrate a fraud, or that corporate formalities have not been
properly complied with.
7

Donsco, Inc., 587 F.2d at 606.

10

h. Hanover’s claims for damages
Christian Testimony argues that Hanover has either waived or
failed to state a claim for damages. (CT 168 Mot. 14—15) Specifically,
Christian Testimony once again questions Hanover’s right to sue given
that the copyright registrations at issue were originally in Liou’s name,
rather than Hanover’s. As I have already explained, “an otherwise valid
registration is not jeopardized by inadvertent, immaterial errors in an
application.” Gallup, Inc. v. Kenexa Corp., 149 F. App’x 94, 96 (3d Cir.
2005) (citing Raquel v. Educ. Mgmt. Corp., 196 F.3d 171, 177 (3d
Cir. 1999), cert. granted and judgment vacated on other grounds, 531 U.s.
952 (2000)).

This case is similar to Jules Jordan Video, Inc. v. 144942 Canada
Inc., 617 F.3d 1146 (9th Cir. 2010). There, an adult movie actor, who was
also the president and sole shareholder of the company creating the
videos in which he appeared, mistakenly listed his own name, rather
than the company’s name on the copyright registration forms for the
videos. The Ninth Circuit found that the company was a “one man shop”
consisting only of the actor, and that the actor had made a mistake in
listing himself as the author on the copyright registration forms. Id. at
1156. The Court ruled that “that mistake does not constitute a basis to
invalidate the copyright.

.

.

[because] [i]nadvertent mistakes on

registration certificates do not invalidate a copyright and thus do not bar
infringement actions, unless
the alleged infringer has relied to its
.

.

.

detriment on the mistake, or the claimant intended to defraud the
Copyright Office by making the misstatement.” Id. (internal quotations
and citations omitted). See also Gallup, Inc. v. Kenexa Corp., 149 F. Appx
94, 96 (3d Cir. 2005) (“A misstatement is material if it might have

influenced the Copyright Office’s decision to issue the registration.
[Al misrepresentation is likely to affect the Register’s decision only if it
.

concerns the copyrightability of the work.”) (internal quotations and

11

.

citations omitted).
Liou is the President of Hanover and appears to be the sole
architect working for Hanover. (See 2d Am Liou Decl. Introduction.) No
other employee of Hanover has been mentioned in any of the parties’
filings. There is no dispute between Liou and Hanover as to who owns
the copyrights. There is nothing indicating that Liou intended to defraud
the Copyright Office by listing his own name on the original registration
rather than listing Hanover. Based on the current record, there is at least
an issue of fact as to whether Hanover could be awarded damages, if
successful, based on the copyright registrations at issue.
Christian Testimony also argues that Hanover has failed to offer
procIf of actual damages, particularly in regard to its state law claims.
That is an overstatement. As an example, I refer the parties to Hanover’s
negligent misrepresentation claim, in which Hanover accuses Christian
Testimony of falsely representing to Hanover that it would be hired as the
construction administrator for the project. Liou has stated that, as a
result of his reliance on this representation, he charged Christian
Testimony a price that was below the fair market rate for his services. (2d
Am. Liou Decl. ¶J16, 18, 20, 22) Thus, Hanover has not waived or failed
to state a claim for damages. The amount of damages, if any, remains to
be seen.

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III.

CONCLUSION

Christian Testimony has not carried its burden under L. Civ. R.
7.1(i) of demonstrating an intervening change in the controlling law,
presenting previously unavailable evidence, or showing a clear error of
law or manifest injustice. Material issues of triable fact remain,
precluding summary judgment. Accordingly, Christian Testimony’s
motion for reconsideration (ECF No. 168) is DENIED.
Dated: July 21, 2015

Hon. Kevin McNulty
United States District J

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ADDENDUM: CITATIONS
8
Rule 56.1 Statements:
For Hanover’s first motion for partial summary judgment (ECF No. 101):
Hanover’s Statement (ECF No. 115): Han. 101 Stmt.
Christian Testimony’s Response (ECF No. 147-1): CT 101 Resp.
For Hanover’s second motion for summary judgment (ECF No. 116):
Hanover’s (Second Amended) Statement (ECF No. 141): Han. 116
Stmt.
Christian Testimony’s Response (ECF No. 146-1): CT 116 Resp.
Christian Testimony’s Counter-Statement (ECF No. 146-2): CT 116
Counter.
Hanover’s Responses to Counter-Statement (ECF Nos. 157-1, 158):
Han. 116 Resp.
For Christian Testimony’s motion for summary judgment (ECF No. 124):
Christian Testimony’s Statement (ECF No. 124-1): CT 124 Stmt.
Hanover’s Responses (ECF Nos. 145-1, 149, 150): Han. 124 Resp.
Moving papers:
Christian Testimony’s motion for reconsideration
Christian Testimony’s Motion (ECF No. 168-1): CT 168 Mot.
Hanover’s Opposition (ECF No. 175): Han. 168 Opp.
Christian Testimony’s Reply (ECF No. 176): CT 168 Reply
For Hanover’s first motion for partial summary judgment (ECF No. 101):
Hanover’s Motion (ECF No. 101-3): Han. 101 Mot.
Christian Testimony’s Opposition (ECF No. 147): CT 101 Opp.
Hanover’s Reply (ECF No. 157): Han. 101 Reply
For Hanover’s second motion for summary judgment (ECF No. 116):
Hanover’s Motion (ECF No. 116-1): Han. 116 Mot.
Christian Testimony’s Opposition (ECF No. 146): CT 116 Opp.
For Christian Testimony’s motion for summary judgment (ECF No. 124):
Christian Testimony’s Motion (ECF No. 124-2): CT 124 Mot.
Hanover’s Opposition (as defendant on counterclaim) (ECF No. 145):
Han 124 Def. Opp.
8

Hanover hired separate counsel to prosecute its claims and defend it

against the counterclaims. Consequently, there are separate statements of
material fact and moving papers on the two sets of summary judgment motions.
14

Hanover’s Opposition (as plaintiff on claims) (ECF No. 148):
Han 124 P1. Opp.
Christian Testimony’s Reply (ECF No. 154): CT 154 Reply
Hanover’s Sur-reply (ECF No. 161): Han. 124 Sur-reply
Christian Testimony’s Sur-reply (ECF No. 165): CT 124 Sur-reply
Declarations, Reports, Deposition Excerpts:
Report of Thomas V. Ashbahian, Registered Architect, attached as
Exhibit 27 to the Moskin Decl. (ECF No. 128-1): Ashbahian Report
Declaration of James Chang, dated February 16, 2014, submitted
in support of Christian Testimony’s motion for summary judgment (ECF
No. 125): Chang Deci.
Supplemental Declaration of James Chang, dated February 17,
2014, submitted in opposition to Hanover’s motions for summary
judgment (ECF No. 146-7): Supp. Chang. Dccl.
Transcript of Chiming Liou’s deposition on October 11, 2013,
attached as Exhibit 23 to the Chang Declaration (ECF No. 128-1): Liou
Dep.
Declaration of Chiming Liou, dated February 11, 2014, submitted
in support of Hanover’s first motion for summary judgment (ECF No.
101-2): Liou Deci.
Second Amended Declaration of Liou, dated February 18, 2014,
submitted in support of Hanover’s second motion for summary judgment
(ECF No. 140): 2d Am. Liou Dccl.
Supplemental Declaration of Liou, dated March 15, 2014,
submitted in support of Hanover’s opposition to Christian Testimony’s
motion for summary judgment (ECF No. 145-3): Supp. Liou Dccl.
Second Supplemental Declaration of Liou, dated March 31, 2014,
submitted in support of Hanover’s first motion for summary judgment
(ECF No. 157-2): 2d Supp. Liou Dccl.
Third Supplemental Declaration of Liou, dated April 2, 2014,
submitted in support of Hanover’s opposition to Christian Testimony’s
motion for summary judgment (ECF No. 16 1-1): 3d Supp. Liou Dccl.
Declaration of Jonathan Moskin, dated February 18, 2014,
submitted in support of Christian Testimony’s motion for summary
judgment, ECF No. 128: Moskin Dccl.

15

Declaration of Wendy H. Smith, Esq., dated February 12, 2014,
submitted in support of Hanover’s first motion for summary judgment
(ECF No. 111): Smith Deci.
Report of Joseph P. Tomaino, AlA PP (Consulting Architect), dated
January 14, 2014, attached as Exhibit F to the Smith Deci. (ECF No.
111-1): Tomaino Report
Declaration of Kenneth Visbeen, dated February 25, 2014,
submitted in support of Christian Testimony’s ECF No. 124 motion for
summary judgment (ECF No. 129): Visbeen Dccl.
Declaration of Peter Wells, dated February 12, 2014, submitted in
support of Christian Testimony’s ECF No. 124 motion for summary
judgment (ECF No. 127): Wells Deci.

16