Home Design Services, Inc. v. J.F. Schoch Building Corporation et al
Filing
19
OPINION AND ORDER that Plaintiff's Complaint fails to allege sufficient facts to support an infringement claim, Defendants' motion to dismiss is GRANTED. Plaintiff may, within eleven days of the entry of this Order, file an amended complain t setting forth the necessary allegations, and Defendants may, within eleven days after service of any amended complaint, file responsive pleadings. Should Plaintiff fail to file an amended complaint within eleven days from the date of this Order, the case will be dismissed. Signed by District Judge Robert G. Doumar and filed on 2/10/2012. (rsim)
FILED
IN THE UNITED STATES DISTRICT COUF T
FOR THE EASTERN DISTRICT OF VIRGIN
Norfolk Division
HOME DESIGN SERVICES, INC.,
Plaintiff,
v.
Civil Action No. 2:1 Icv574
J.F. SCHOCH BUILDING CORPORATION,
And JACK F. SCHOCH, individually,
Defendants.
OPINION AND ORDER
This matter is before the Court upon the motion to dismiss filed by Defendants J.F.
Schoch
Building
Corporation
(collectively, "Defendants").
("SBC")
and
Jack
F.
Schoch,
individually
("Schoch")
The matter has been fully briefed and is ripe for decision.
This
Court has subject matter jurisdiction over Plaintiff Home Design Services, Inc.'s ("Plaintiff)
Amended Complaint, which alleges violations of the Federal Copyright Act, 28 U.S.C. § 101,
pursuant to 28 U.S.C. § 1338(a).
Plaintiff is an architectural and design firm engaged in the business of designing homes.
(PL's Compl. ^ 3.)
Plaintiff, a Florida corporation with its principal place of business in
Longwood, Florida, is the creator and original owner of at least seven architectural copyrights,
including the "HDS-2660," and its derivative, the HDS-2660-2 (hereinafter "the 2660/2660-2"),
the HDS-2766 (hereinafter "the 2766"), the HDS-3004 (hereinafter "the 3004"), the HDS-3212
(hereinafter "the 3212"), the HDS-3556 (hereinafter "the 3556"), the HDS-3730 (hereinafter "the
3730"), and the HDS-3891 (hereinafter "the 3891").
(PL's Compl. Iffl 3, 7, 19, 31, 43, 55, 67,
79.) Defendant SBC is a custom home builder operating primarily in the Virginia Beach area of
Virginia and the builder of the allegedly infringing homes.
(PL's Compl. ^ 4.)
Defendant
Schoch is an individual residing in Virginia Beach, Virginia. (PL's Compl. U 5.)
Plaintiffs seven-count Complaint alleges federal copyright violations against both
Defendant SBC and Defendant Schoch with respect to each of seven home models copyrighted
by Plaintiff: the 2660/2660-2 (Count One); the 2766 (Count Two); the 3004 (Count Three); the
3212 (Count Four); the 3556 (Count Five); the 3730 (Count Six); and the 3891 (Count Seven).
For the reasons stated herein, Defendants' motion to dismiss is hereby GRANTED.
I
FACTUAL AND PROCEDURAL HISTORY1
Plaintiffs Complaint contains few facts regarding Defendants' alleged infringement of
Plaintiffs copyrighted works.
language.
Each count of the Complaint contains the same formulaic
First, Plaintiff claims that it rightfully owns the copyright alleged to have been
infringed by Defendants.
Next, Plaintiff alleges that Defendants "infringed said copyright by
advertising, designing, constructing and participating in the construction of one or more
residences which were copied largely or were exact duplicates of [the copyright in question]" or,
in the alternative, that Defendants are vicariously liable for such acts. Finally, Plaintiff sets forth
the relief sought for each count of infringement.
II.
LEGAL STANDARD
Federal Rule of Civil Procedure 8(a)(2) mandates that a pleading contain "a short and
plain statement of the claim showing that the pleader is entitled to relief."
8(a)(2).
Fed. R. Civ. P.
Although a plaintiff need not plead "detailed factual allegations," he or she must plead
"factual content that allows the court to draw the reasonable inference that the defendant is liable
1 The facts recited here are drawn from the allegations set forth in the Complaint. The facts are assumed true only
for the purpose of deciding the motion currently before the Court. The facts recited here are not factual findings for
any purpose other than for the consideration of the instant motion.
for the misconduct alleged." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 556 (2007)). "Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements" are insufficient to allow such an inference. Id.
The pleading standard of Rule 8 "demands more than an unadorned, the-defendant-unlawfullyharmed-me-accusation." Id.
Where a plaintiff fails to meet the pleading requirements of Rule 8, Rule 12(b)(6) permits
a party to move the court to dismiss an action. The function of a motion to dismiss under Rule
12(b)(6) is to test the legal sufficiency of the complaint. Neitzke v. Williams, 409 U.S. 319, 326-
27 (1989).
When considering such a motion, the court must accept the plaintiffs factual
allegations as true, but is "not bound to accept as true legal conclusions couched as allegations."
Iqbal, 129 S. Ct. at 1950 (citing Bell Atlantic, 550 U.S. at 555).
III.
DISCUSSION
To make a prima facie case of copyright infringement, a plaintiff must first produce a
valid copyright and then must establish that the defendant, without authorization, copied the
protected work.
Nelson-Salabes, Inc. v. Morningside, Dev., LLC, 284 F.3d 505, 513 (4th Cir.
2002) (citing Towler v. Sayles, 76 F.3d 579, 581 (4th Cir. 1996)).
Thus, to establish copyright
infringement, a plaintiff must plausibly plead two elements: (1) ownership of a valid copyright
and (2) copying of constituent elements of the work that are original. Feist Publ'ns, Inc. v. Rural
Tel. Svcs. Co., 499 U.S. 340, 361 (1991).
A.
Validity of Plaintiffs Copyrights
Plaintiff has tendered copies of its copyright registration certificates for the plans at issue.
Such certificates create the presumption of copyright validity and ownership. Ronald Mayotte &
Assoc. v. MGC Bldg. Co., 885 F. Supp. 148, 152 (E.D. Mich. 1994); Eckes v. Card Prices
Update, 736 F.2d 859, 861 (2d Cir. 1984). Therefore, for the purposes of deciding this motion,
the Court will proceed on the presumption that Plaintiff has valid copyrights for each of the
designs provided in the Complaint.
However, although the existence of a copyright carries with it a presumption of
originality, the standard for obtaining a copyright is far less stringent than that which determines
the fate of a patent application, as this Court recently stated in Charles W. Ross Builder, Inc. v.
Olsen Fine Home Bldg., LLC, No. 4:10cvl29,2011 WL 4590003 (Sept. 29, 2011). As this Court
recently stated in the Ross Builder case,
To register and get a certificate of copyright, one merely needs to file his or her
copyright.
Unlike patents, the novelty of which are determined by a patent
examiner before a patent may issue, there is no test to determine originality in the
context of copyrights. Thus, in light of the fact that 'the Copyright Office tends
toward cursory issuance of registrations,' we find, in line with the Fourth Circuit's
position, that the presumption of originality which rides on the coattails of a
copyright certificate is easily rebutted.
Ross Builder, 2011 WL 4590003, at 7 (citing Universal Furniture Int'l, Inc. v. Collezione
Europa USA, Inc., 618 F.3d 417, 430 (4th Cir. 2010)).
B. Copying of Constituent Elements
Because actual copying is in many cases very difficult to prove, a plaintiff may establish
copying indirectly by showing that the defendant had (1) access to the copyrighted work and (2)
that substantial similarity exists between the copyrighted work and the allegedly infringing work.
Keeler Brass Co. v. Continental Brass Co., 862 F.2d 1063, 1065 (4th Cir. 1988).
1.
The Allegedly Infringing Works
At the outset, the Court notes that Plaintiff has failed to set forth the allegedly infringing
work, contending only that it is somewhere and that Defendant knows where it is.
Is the
allegedly infringing work in the United States? Is it in the State of Virginia? Is it in the Eastern
District of Virginia? At what address is it located? This information is essential to Plaintiffs
claim, and yet, it is notably absent from Plaintiffs Complaint.
2.
Access to the Copyrighted Work
Plaintiffs Complaint must also plead that Defendants had access to the copyrighted
works.
Plaintiff contends that to require the Complaint to plead access converts Defendants'
motion to dismiss into a motion for summary judgment. (PL's Resp. Mot. Dismiss, 1-2.) This is
a fundamentally inaccurate statement of long-settled principles of law. To survive a motion to
dismiss, a complaint must "allege facts sufficient to state all the elements of [his or her] claim."
Bass v. E.I. Dupont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (emphasis added). As
access is an essential element of a copyright infringement claim, Plaintiffs Complaint cannot
stand if it has failed to allege that Defendants had access to Plaintiffs copyrighted works.
A plaintiff can make the requisite showing of access either by direct evidence that the
defendant had the opportunity to view or study the protected works or by showing that the
plaintiffs and defendant's works are so strikingly similar that there is no reasonable probability
that they were independently created. See Selle v. Gibb, 741 F.2d 896, 901 (7th Cir. 2001); Ale
House Mgmt v. Raleigh Ale House, 205 F.3d 137, 143 (4th Cir. 2000). Plaintiff has not alleged
that Defendants had actual access to its copyrighted plans or that the similarities between its
copyrighted works and the allegedly infringing homes built by Defendants demonstrate that
Defendants must have had access to Plaintiffs protected plans. In fact, Plaintiff does not address
the issue of access at all in its Complaint, nor has it set forth the infringing works.
However,
Plaintiff has alleged, albeit conclusorily, that the homes built by Defendant were "copied largely
or were exact duplicates" of Plaintiff s copyrighted designs. (PL's Compl. ff 11, 23, 35, 47, 59,
71,
83.)
Therefore, because Rule
12(b)(6) motions are granted only in "very limited
circumstances," see Rogers v. Jefferson-Pilot Life Ins. Co., 883 F.2d 324 (4th Cir. 1989), and
because we must read the allegations in the Complaint in the light most favorable to Plaintiff, the
Court will examine the remaining elements of Plaintiff s Complaint. Id. at 325.
3.
Substantial Similarity of the Copyrighted and Alleged Infringing Works
Plaintiffs Complaint must next allege that Defendants' homes were so similar to
Plaintiffs copyrighted models that they must have been wrongfully appropriated. T-Peg, Inc. v.
Vermont Timber Works, Inc., 459 F.3d 97, 112 (1st Cir. 2006).
In the context of architectural
works, substantial similarity is evaluated '"on the basis of the original design elements that are
expressive of the [designer's] creativity.'" J.R. Lazaro Builders, Inc. v. R.E. Ripberger Builders,
Inc., 883 F. Supp. 336, 343 (S.D. Ind. 1995). Thus, the appropriate focus of the inquiry is not on
every element of the copyrighted work, but only on those aspects which are protectable under
copyright laws. T-Peg, IncL, 459 F.3d at 112. Because so many elements of architectural design
are borrowed from the public domain, it follows that works of architecture should be treated like
compilations, and be afforded only minimal copyright protection.
Plaintiff complains that "the
notion that architectural works are entitled to only 'thin' protection is completely inaccurate."
(PL's Resp. Mot. Dismiss, 2, n.l.) Plaintiff, apparently, has overlooked this very Court's most
recent jurisprudence on the subject, in which we held that architectural works are indeed entitled
only to "thin" copyright protection and, as such, require a showing of "supersubstantial
similarity" before an infringement claim will be sustained. Ross Builders, 2011 WL 4590003, at
*10.
Thus, although Plaintiff may believe that according architectural works only "thin"
protection is a "completely inaccurate" approach, this Court disagrees.
No matter the standard applied to review Plaintiffs allegations, the Court cannot even
begin to assess the sufficiency of Plaintiffs Complaint with respect to the similarity of
Defendant's homes to Plaintiffs copyrighted models because Plaintiff has provided no
information whatsoever about the allegedly infringing works. Plaintiffs threadbare and factually
devoid assertions that the homes built by Defendants were "copied largely or were exact
duplicates" of Plaintiffs
copyrighted designs,
fall
far short of satisfying the pleading
requirements of Rule 8(a), particularly considering that a primary purpose of the Rule is to put
defendants on notice of their wrongdoing. Iqbal, 129 S. Ct. at 1949. To this contention Plaintiff
responds that "Defendants know exactly what homes they have built, what the addresses are,
who their customers were, and what they look like."
(PL's Resp. Mot. Dismiss, 3.)
But the
Court has no knowledge of what homes Defendants have built, what the addresses are, or what
they look like.
Similarly, although it is possible that Defendants "can see what designs they
(allegedly) used that infringe on [Plaintiffs] works" by viewing Plaintiffs copyrighted models
attached to the Complaint, Plaintiff has left the Court completely in the dark. (PL's Resp. Mot.
Dismiss, 3.) Finally, despite Plaintiffs contention that Defendants can "figure out why they are
being sued," (PL's Resp. Mot. Dismiss, 6), a defendant in a civil action has no such burden. See
Twombly, 550 U.S. at 545 (complaint must state sufficient facts to give defendant notice of what
the claim is and the grounds upon which it rests); Airborne Beepers & Video, Inc. v. AT&T
Mobility LLC, 499 F.3d 663, 667 (7th Cir. 2007) ("[A]t some point the factual detail in a
complaint may be so sketchy that the complaint does not provide the type of notice of the claim
to which the defendant is entitled under Rule 8")
Plaintiff protests that its Complaint is based on Form 19 of the Federal Rules of Civil
Procedure, which provides a sample complaint for copyright infringement, and that this makes
the Complaint de facto sufficient. (PL's Resp. Mot. Dismiss, 7.)
However, although Plaintiff
may have used Form 19 as a model, one essential element of Form 19 is conspicuously absent
from Plaintiffs Complaint.
Paragraph six of Form 19 provides that the plaintiff must identify
the allegedly infringing work by name and attach a copy of the infringing work as an exhibit to
the complaint.
Fed. R. Civ. P. Appx. Form 19 ^ 6.
Although Plaintiff has provided the Court
with depictions of its own designs, Plaintiff has not provided any information about the allegedly
infringing designs, and thus has failed to support its claims with the requisite factual basis.
IV.
CONCLUSION
Because the Court finds that Plaintiffs Complaint fails to allege sufficient facts to
support an infringement claim, Defendants' motion to dismiss is hereby GRANTED. However,
Plaintiff may, within eleven days of the entry of this Order, file an amended complaint setting
forth the necessary allegations, and Defendants may, within eleven days after service of any
amended complaint, file responsive pleadings. Should Plaintiff fail to file an amended complaint
within eleven days from the date of this Order, the case will be dismissed. The Clerk of Court is
DIRECTED to transmit a copy of this Order to all counsel of record.
It is so ORDERED.
February
^, 2012
Norfolk, Virginia
Robert G. Dot
Senior United S$£*Sistrict Judge
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