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SD Tex 2007 - Javelin - S120(b) Dn Limit Types of Alterations, Include Implied Rt to Make Plans

SD Tex 2007 - Javelin - S120(b) Dn Limit Types of Alterations, Include Implied Rt to Make Plans

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Published by: Brian Wassom on Apr 29, 2011
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JAVELIN INVESTMENTS, LLC, ET AL., Plaintiffs, v. ANGELA McGINNIS ANDMICHAEL McGINNIS, Defendants.Civil Action H-05-3379UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OFTEXAS, HOUSTON DIVISION
 2007 U.S. Dist. LEXIS 21472
January 23, 2007, DecidedSUBSEQUENT HISTORY:
Magistrate'srecommendation at
Javelin Invs. v. McGinnis, 2007 U.S. Dist. LEXIS 23582 (S.D. Tex., Mar. 30, 2007)
COUNSEL: [*1]
For Javelin Investments, LLC d/b/aAlta Construction and d/b/a Lynda Woods Design, Nick Diminico, Lynda Wood, Plaintiffs: Malcolm EdwinWhittaker, LEAD ATTORNEY, Whittaker Law Firm,Houston, TX.For Angela McGinnis, Michael Mcginnis, Defendants:Leslie M Henry, LEAD ATTORNEY, Michael MGallagher, Hays McConn et al, Houston, TX; John RKeville, Howrey LLP, Houston, TX; Michael S Hays,Hays McConn Rice & Pickering, Houston, TX.Tommy Edwards, Defendant, Pro se, Baytown, TX.For Jerry Morales d/b/a Buena Vista Builders and BuenaVista Builders, LLC, Buena Vista Builders, LLC,Defendants: Camille M Tankersley, LEAD ATTORNEY,Christian Smith et al, Houston, TX.
JUDGES:
Stephen Wm Smith, United States MagistrateJudge.
OPINION BY:
Stephen Wm Smith
OPINIONMEMORANDUM AND RECOMMENDATION
This copyright infringement case arising out of theconstruction of a residence is before the court on theparties' cross-motions for summary judgment (Dkts. 86,96, 115). Having considered the parties' submissions,arguments at the January 9, 2007 hearing, and the law,the court recommends that plaintiffs' motion be denied,defendants' motions be granted, and this case bedismissed with prejudice.
[*2] 1. UNDISPUTED FACTS
In 2003, the McGinnises began working withplaintiffs Lynda Wood, Nick DiMinico, and JavelinInvestments, L.L.C. d/b/a Alta Construction (collectively"Wood") on plans for an extensive remodeling of theirhouse. The remodeling plans were generated by DavidGarcia of Plandraft, Inc., neither of whom are parties tothis action. After receiving a cost estimate that was moreexpensive than they anticipated, the McGinnises decidedto rebuild their home instead of remodeling.On March 15, 2004, the McGinnises entered into aresidential construction contract with the builder AltaConstruction. Wood and DiMinico signed the residentialconstruction contract on behalf of Alta. The constructionplans were also generated by David Garcia of Plandraft,Page 1
 
Inc. Wood asserts that she provided detailed informationto Garcia on which he based the plans and that she spenthours sitting with Garcia at the computer as he drafted theplans.
1
Garcia testified that the plans were substantiallybased on the design and layout of the original house,without mentioning any direction or assistance fromWood.
2
1 Affidavit of Lynda Wood, Exhibit 1 toplaintiffs' response in opposition to defendants'emergency motion (Dkt. 121), PP 2-5.
[*3]
2 Affidavit of David Garcia, Exhibit B todefendants' emergency motion (Dkt. 115), P 11.Also in March 2004, Michael McGinnis provided theMcGinnises' lender, Chase Manhattan MortgageCorporation, with a "Certificate of Architect" in order tosecure a construction loan.
3
The Certificate of Architect,signed by David Garcia as President of Plandraft, Inc.,identifies Plandraft as the architect/designer of theconstruction plans for the McGinnis residence. Pursuantto the Certificate of Architect, the lender and its nomineeswere given a license to use the construction plans, or anymodification of them, to construct the McGinnisresidence.3 Affidavit of Edward Rogers, Exhibit E todefendants' emergency motion (Dkt. 115), P 6-8and Exhibit A.After construction began, the McGinnises becamedissatisfied. They sued Wood in state court for breach of contract and other claims. In September 2004, Wood'sprevious lawyer,
[*4]
Louis Bonham, wrote a letter tothe McGinnises' counsel warning of a copyrightinfringement suit should the McGinnises finish the houseusing the existing construction plans. That letterimplicitly acknowledges Plandraft as the copyrightowner:Technically, Plandraft, Inc. wouldappear to be free to sue your clients andtheir contractor for copyright infringementimmediately, as it is not a party to the statecourt action. However, I am advised thatPlandraft has agreed to assign itscopyrights and copyright infringementclaims to my clients so that the parties canattempt to resolve all outstanding issues.
4
4 September 27, 2004 letter from Louis K.Bonham to W. Michael Taylor, Exhibit C todefendants' emergency motion (Dkt. 115).The parties settled the state court lawsuit in April,2005, according to terms reflected in an April 14, 2005Rule 11 agreement. At that time, the house wascompletely framed, but no sheetrocking or finishes hadbeen completed. The Rule 11 agreement provides:
[*5]
[The McGinnises] acknowledge that theoriginal drawings were submitted to thecity and were lost. [The McGinnises]agree that they will not use the originaldrawings or derivatives by Lynda Woodfor the construction of the house. [Wood]acknowledge[s] that the builder may needto reference the drawings to correctdefects in the existing structure.
5
The McGinnises hired an architect, James Sheblak, tocreate plans for finishing the house. The McGinnises took measurements of the partially constructed house andprovided them to Sheblak for the purpose of creating newplans.
6
Construction of the house was completed inOctober 2005.5 April 14, 2005 settlement agreement, Exhibit 6to plaintiffs' response to defendants' emergencymotion (Dkt. 115).6 Affidavit of Angela McGinnis, Exhibit 3 toplaintiffs' motion (Dkt. 86), P 7; Affidavit of Michael McGinnis, Exhibit 4 to plaintiffs' motion(Dkt. 86), P 7.In September and October 2005, disputes aroseregarding each side's compliance
[*6]
with thesettlement agreement. The McGinnises asserted in statecourt that Wood breached the agreement by failing tomake a required monthly payment. Wood responded thatthe McGinnises breached the agreement by using Wood'splans to complete the house, and thereby eliminating anypayment obligations. The state court found that Woodbreached the settlement agreement by failing to makerequired payments and entered an Agreed Judgment inthe amount of $ 125,000 in favor of the McGinnises.On September 29, 2005, Wood filed a copyrightregistration for an "architectural work" titled "McGinnisResidence -- Not yet constructed." The registration form,signed by Malcolm E. Whitaker, plaintiffs' attorney inPage 22007 U.S. Dist. LEXIS 21472, *2
 
this case, identifies Wood as the author of the work andstates that the work was not a work made for hire.
7
7 Exhibit 2 to plaintiffs' motion (Dkt. 86).On November 18, 2005, Garcia signed an agreement("Work Made for Hire Agreement") purporting to agreethat the plans he generated were a work made for hire
[*7]
from the moment of their creation, and alternativelyassigning Plandraft's copyright ownership of the plans toWood. Despite the representation in the November 18agreement, Garcia has testified that he always believedPlandraft, Inc. owned the rights to the construction plansand he never believed the plans were a work made forhire.
8
Garcia asserts he signed the November 18agreement because he hoped Wood would pay himmoney she owed him for other work.
9
8 Affidavit of David Garcia, Exhibit B todefendants' emergency motion (Dkt. 115), PP 12,17.9
Id.,
P 18.On September 30, 2005, Wood filed this federallawsuit asserting breach of contract and copyrightinfringement claims against the McGinnises. The contractclaim was previously dismissed on
res judicata
grounds.
10
All parties now seek summary judgment on thecopyright infringement claim.
11
In addition, theMcGinnises argue that Wood (and counsel) intentionallyand wrongfully withheld evidence of the license grantedby the
[*8]
Certificate of Architect.10 July 21, 2006 Memorandum andRecommendation (Dkt. 85), adopted by thedistrict court (Dkt. 91). Because the only claimremaining in this case is copyright infringement,and there are no allegations that DiMinico owns acopyright, summary judgment dismissingDiMinico's copyright claim is appropriate withoutextended discussion.11 Plaintiffs complain that defendants' motionsare successive and should be denied on that basisalone. Defendants' prior motion addressed claimpreclusion, not the merits of plaintiffs' claims.Moreover, the current motions directly respond tothe issues raised by plaintiffs' motion. Under thecircumstances, the court exercises its discretion toconsider defendants' motions.
2. LEGAL STANDARDSA. Summary Judgment Standards
Summary judgment is appropriate if no genuineissues of material fact exist, and the moving party isentitled to judgment as a matter of law.
FED. R. CIV. P.56(c)
[*9]
. The party moving for summary judgment hasthe initial burden to prove there are no genuine issues of material fact for trial.
Provident Life & Accident Ins. Co.v. Goel, 274 F.3d 984, 991 (5th Cir. 2001)
. Dispute abouta material fact is "genuine" if the evidence could lead areasonable jury to find for the nonmoving party.
In reSegerstrom, 247 F.3d 218, 223 (5th Cir. 2001)
. "An issueis material if its resolution could affect the outcome of theaction."
Terrebonne Parish Sch. Bd. v. Columbia GulTransmission Co., 290 F.3d 303, 310 (5th Cir. 2002)
.If the movant meets this burden, "the nonmovantmust go beyond the pleadings and designate specific factsshowing that there is a genuine issue for trial."
Littlefield v. Forney Indep. Sch. Dist., 268 F.3d 275, 282 (5th Cir.2001)
(quoting
Tubacex, Inc. v. M/V Risan, 45 F.3d 951,954 (5th Cir. 1995))
. If the evidence presented to rebutthe summary judgment is not significantly probative,summary judgment should be granted.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S. Ct.2505, 91 L. Ed. 2d 202 (1986)
. In determining whether agenuine issue of material
[*10]
fact exists, the courtviews the evidence and draws inferences in the light mostfavorable to the nonmoving party.
Id. at 255
.
B. Copyright Infringement of an ArchitecturalWork
A plaintiff in a copyright infringement case mustprove two things: (1) ownership of a valid copyright; and(2) copying of the constituent elements of the work thatare original.
Feist Publications, Inc. v. Rural Tel. Serv.Co., 499 U.S. 340, 361, 111 S. Ct. 1282, 113 L. Ed. 2d 358 (1991)
;
Positive Black Talk Inc. v. Cash Money Records Inc., 394 F.3d 357, 367-68 (5th Cir. 2004)
.
 Engineering Dynamics, Inc. v. Structural Software, Inc.,26 F.3d 1335, 1340 (5th Cir. 1994)
. In this case, Woodasserts ownership of a valid copyright on the architecturalwork known as the "McGinnis Residence -- Not yetconstructed," and copying of that architectural work bythe McGinnises.Copyright protection is available for original worksof authorship in the following categories: (1) literaryworks; (2) musical works, including any accompanyingwords; (3) dramatic works, including any accompanyingPage 32007 U.S. Dist. LEXIS 21472, *6

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