PETER F. GAITO ARCHITECTURE v. SIMONE DEVELOPMENT

• Decision Date: 07 April 2010
• Docket Number: Docket No. 09-2613-cv.
• Citation: 602 F.3d 57
• Parties: PETER F. GAITO ARCHITECTURE, LLC, doing business as Peter F. Gaito and Associates, Peter F. Gaito, Plaintiffs-Appellants, v. SIMONE DEVELOPMENT CORP., Simone Church Street, LLC, Joseph Simone, Thomas Metallo, Saccardi & Schiff, Inc., TNS Development Group, Ltd., SLCE Architects, LLP, Defendants-Appellees.
• Court: U.S. Court of Appeals — Second Circuit

602 F.3d 57

PETER F. GAITO ARCHITECTURE, LLC, doing business as Peter F. Gaito and Associates, Peter F. Gaito, Plaintiffs-Appellants, v. SIMONE DEVELOPMENT CORP., Simone Church Street, LLC, Joseph Simone, Thomas Metallo, Saccardi & Schiff, Inc., TNS Development Group, Ltd., SLCE Architects, LLP,^* Defendants-Appellees.

Docket No. 09-2613-cv.

United States Court of Appeals, Second Circuit.

Argued: February 1, 2010.

Decided: April 7, 2010.

COPYRIGHT MATERIAL OMITTED

Austin Graff (Robert S. Nayberg, on the brief), The Scher Law Firm, LLP, Carle Place, N.Y., for Plaintiffs-Appellants.

Philip M. Halpern, Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, N.Y., for Defendants-Appellees Simone Development Corp., Simone Church Street, LLC, Joseph Simone, Thomas Metallo, TNS Development Group, Ltd.

Christopher A. Albanese, Milber, Makris, Plousadis & Seiden, LLP, White Plains, N.Y., for Defendant-Appellee SLCE Architects, LLP.

Kenneth McLellan, Winget, Spadafora & Schwartzberg, LLP, New York, N.Y., for Defendant-Appellee Saccardi & Schiff, Inc.

Before: KATZMANN and LYNCH, Circuit Judges and CHIN, District Judge.^**

KATZMANN, Circuit Judge:

This case calls upon us in principal part to determine whether a district court may consider the question of non-infringement in a copyright action on a Rule 12(b)(6) motion to dismiss. We hold that, under the circumstances of this case, the district court properly determined non-infringement as a matter of law, and did not err in concluding that plaintiffs' Amended Complaint — together with those documents incorporated therein — fails to adequately allege substantial similarity between defendants' work and the protectible elements of plaintiffs'. We therefore affirm the judgment of the district court.

I.

The following facts are derived from the allegations set forth in plaintiffs' Amended Complaint ("Am. Compl."), together with those "documents attached to the complaint as an exhibit or incorporated in it by reference." Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir.2002).

In August 2004, the City of New Rochelle issued a Request for Development Proposals ("RFP"), "seeking to identify a real estate development team for the mixed-use development" of a 178-acre parcel of land at Church and Division Streets in downtown New Rochelle ("the Church Street Project"). Am. Compl. Ex. B. Plaintiff Peter F. Gaito (an architect and principal of plaintiff Peter F. Gaito Architecture, LLC d/b/a Peter F. Gaito and Associates ("Gaito Architecture")), and defendant Joseph Simone (the president of defendant Simone Development Corporation ("SDC")), agreed to jointly submit a proposal for the Church Street Project in response to the RFP. Id. ¶¶ 21-22. Gaito and Gaito Architecture were to design and draft architectural plans for the project, and Simone was to secure financing for the project, with the assistance of defendants Thomas Metallo and TNS Development Group Ltd. ("TNS"). Based on the parties' agreement, plaintiffs "proceeded to draft architectural plans which included all of the design contents, concepts, zoning information and statistics regarding the proposal to be made to the City." Id. ¶ 32.

On November 1, 2004, plaintiffs, together with defendants Simone, SDC, Metallo, and TNS, submitted a completed design proposal (in the name of SDC) to New Rochelle for its approval. Generally speaking, the proposal consisted of plans for a residential high-rise tower, retail space at the base of the tower, a new pedestrian plaza, a public park, and an aboveground parking garage. On March 11, 2005, New Rochelle awarded the Church Street Project to the group for an estimated price of $175 million. Between March and June 2005, plaintiffs prepared various schematics for the Church Street Project, and on April 5, 2005, Gaito registered plaintiffs' designs for the project with the United States Copyright Office. Based on plaintiffs' designs, defendant Simone Church Street LLC (of which Simone and Metallo are members) "entered into a Memorandum of Understanding with New Rochelle as the developer for the Church Street Project." Id. ¶ 81.

In approximately June 2005, however, a dispute arose between plaintiffs and Simone and SDC concerning plaintiffs' compensation for the project. Because of that dispute, Simone, SDC, Simone Church Street LLC, Metallo, and TNS ("the Simone Defendants") terminated their relationship with plaintiffs, and instead retained the services of defendants SLCE Architects, LLP ("SLCE"), an architectural and planning firm, and Saccardi & Schiff, Inc., a planning firm, to continue the Church Street Project. The thrust of plaintiffs' Amended Complaint is that the defendants thereafter unlawfully used plaintiffs' copyrighted designs for the Church Street Project without plaintiffs' authorization, and that SLCE developed a "re-design" for the project based in large part on plaintiffs' designs.

The Amended Complaint identifies 35 alleged similarities between plaintiffs' designs for the Church Street Project and SLCE's re-design. They include similarities as to location (such as the placement of a new park, parking garage, public plaza, "plaza connection," "elevator stair entry tower," and "public landscaped open space"); similarities as to certain features and functions (such as the inclusion of a new parking garage, a "landscaped street level plaza," "on site parking for both residential and retail use," a water feature, public art, active retail space at the base of a residential tower, boutique shops with "the flexibility for a potential single larger tenant," "architecture that was light, airy, transparent, made of glass with hints of traditional materials," a tower with a "slender profile," balconies for the residential units, a parking garage with a pre-cast masonry facade, as well as certain similarities with respect to the orientation of the project); and similarities as to parameters (such as a floor-area-ratio of 5.5, a parking garage with 850 parking spaces, retail space of 44,000 square feet, and professional office space of 2,500 square feet). Id. ¶¶ 131-204. Plaintiffs' designs and SLCE's re-designs are attached to the Amended Complaint as Exhibits C and N.

Based on the foregoing allegations, plaintiffs commenced the instant action, alleging violations of the Copyright Act, 17 U.S.C. § 101 et seq., and asserting claims for quantum meruit and unjust enrichment under New York State law. On November 19, 2008, defendants moved to dismiss the action pursuant to Federal Rule of Civil Procedure 12(b)(6), principally arguing that, even assuming defendants had access to plaintiffs' designs, there is no substantial similarity between the protectible elements of those designs and SLCE's re-designs.

By Opinion and Order dated May 22, 2009, 2009 WL 5865686 ("District Court Opinion"), the district court granted defendants' motion. Because the district court assumed, for purposes of defendants' motion, "that actual copying by defendants occurred," the district court primarily focused on the question of "whether substantial similarity exists between defendants' re-design and the protectible elements of plaintiffs' design." District Court Opinion at 8. With respect to that question, the district court compared the various features and design elements of the "predominant" high-rise building in each design, and concluded that "the overall visual impressions of the two designs are entirely different," and that "no reasonable juror would be disposed to ... regard their aesthetic appeal as the same." Id. at 9 (internal quotation marks omitted). With respect to the various specific similarities identified by plaintiffs, the district court concluded that such "features are common to countless other urban high-rise residential developments," and thus amounted to mere "abstract ideas or concepts" that are not protected under the Copyright Act. Id. at 10. Based on this analysis, the district court dismissed plaintiffs' copyright infringement claim, concluding that there was no substantial similarity between defendants' re-design and the protectible elements of plaintiffs' design. Id. at 12. With no independent federal claim for relief, the district court declined to exercise supplemental jurisdiction over plaintiffs' state law claims, and dismissed those claims without prejudice. Id. The district court entered final judgment on May 29, 2009, and the instant appeal followed.

II.

We review de novo a district court's dismissal of a complaint for failure to state a claim upon which relief can be granted, Maloney v. Soc. Sec. Admin., 517 F.3d 70, 74 (2d Cir.2008), "accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor," Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir.2009). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to `state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, ___ U.S. ___, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)).

III.

As a threshold matter, the Simone Defendants contend that this Court lacks jurisdiction to hear plaintiffs' appeal because Peter Gaito, the holder of the copyrighted designs, did not file a proper notice of appeal, and because both plaintiffs failed to appeal from the "final decision" in this case. Neither argument merits extended discussion.

Broadly stated, we find no defect in either the notice or amended notice of appeal filed in this case. It is undisputed that the district court entered final judgment on May 29, 2009, plaintiff Gaito Architecture filed an original notice of appeal on June 17, 2009, and Peter Gaito, together with Gaito Architecture, filed an amended notice of appeal on June 29, 2009. Both of these notices were timely under Federal Rule of Appellate Procedure 4, because they...