BlackRock Eng'rs, Inc. v. Duke Energy Progress, LLC

Decision Date09 September 2019
Docket NumberNo. 7:15-CV-250-D,7:15-CV-250-D
CourtU.S. District Court — Eastern District of North Carolina
PartiesBLACKROCK ENGINEERS, INC., Plaintiff, v. DUKE ENERGY PROGRESS, LLC, Defendant.
ORDER

On November 25, 2015, BlackRock Engineers, Inc. ("BlackRock" or "plaintiff") filed a corrected complaint against Duke Energy Progress, LLC ("Duke Energy" or "defendant"), AMEC Foster Wheeler Environment & Infrastructure, Inc. ("AMEC"),1 and Charah, Inc. ("Charah")2 alleging copyright infringement, breach of contract, unjust enrichment, conversion and misappropriation, common law unfair competition, trademark infringement under North Carolina law, and violation of the North Carolina Unfair and Deceptive Trade Practices Act ("UDTPA"), N.C. Gen. Stat. § 75-1 et seq. [D.E. 5]. On December 14, 2017, Duke Energy filed an amended answer and asserted a counterclaim against BlackRock for declaratory judgment that BlackRock committed fraud on the copyright office and that BlackRock's copyrights are invalid, void, or unenforceable based on BlackRock's fraud [D.E. 99].

On November 16, 2018, BlackRock moved for partial summary judgment [D.E. 120] and filed a memorandum in support [D.E. 121], a statement of material facts [D.E. 123], and an appendix [D.E. 124, 131, 133, 136, 137]. On December 21, 2018, Duke Energy responded in opposition [D.E.183] and responded to BlackRock's statement of material facts [D.E. 186]. On January 11, 2019, BlackRock replied [D.E. 198].

On November 16, 2018, Duke Energy moved for summary judgment [D.E. 132] and filed a memorandum in support [D.E. 134], a statement of material facts [D.E. 135], and an appendix [D.E. 138, 139-58]. On December 21, 2018, BlackRock responded in opposition [D.E. 180], filed exhibits [D.E. 181-82], responded to Duke Energy's statement of material facts [D.E. 184], and filed an appendix [D.E. 185, 187-90]. On January 11, 2019, Duke Energy replied [D.E. 199] and responded to BlackRock's statement of material facts [D.E. 200].

On November 16, 2018, Duke Energy moved to strike "all evidence" from BlackRock concerning Gary Ahlberg's ("Ahlberg") damages calculation [D.E. 161] and filed a memorandum in support [D.E. 162]. On December 21, 2018, BlackRock responded in opposition [D.E. 179]. On January 4, 2019, Duke Energy replied [D.E. 193].

On February 26, 2019, Duke Energy moved to strike Ahlberg's affidavit that BlackRock submitted in its response to Duke Energy's motion for summary judgment [D.E. 204], filed a memorandum in support [D.E. 205], and filed exhibits [D.E. 206-12]. On March 13, 2019, the parties jointly moved for extensions of time to file, which the court granted [D.E. 216]. On March 27, 2019, BlackRock moved for an additional extension of time to respond [D.E. 222]. On March 28, 2019, Duke Energy responded in opposition [D.E. 223]. On April 1, 2019, Duke Energy moved for adjudication of its motion to strike because BlackRock did not timely respond [D.E. 224]. On April 5, 2019, BlackRock responded in opposition to Duke Energy's motion to strike [D.E. 226], filed exhibits [D.E. 227], and responded in opposition to Duke Energy's motion for adjudication [D.E. 230]. On April 22, 2019, Duke Energy replied [D.E. 231].

As explained below, the court grants in part and denies in part Duke Energy's first motion to strike, grants BlackRock's motion for an extension, denies as moot Duke Energy's motion for adjudication, denies Duke Energy's second motion to strike, grants in part and denies in partBlackRock's motion for partial summary judgment, and grants in part and denies in part Duke Energy's motion for summary judgment.

I.

Duke Energy is a public utility "created and operating under the laws of North Carolina." [D.E. 135] ¶ 1; [D.E. 184] ¶ 1.3 Duke Energy, in part, operates coal-burning power plants in North Carolina, which produce coal ash residue. See [D.E. 123] ¶ 1; [D.E. 186] ¶ 1. Under Norm Carolina law, Duke Energy must store and dispose of coal ash residue and other solid waste in an environmentally safe manner. See [D.E. 123] ¶ 1; [D.E. 186] ¶ 1. Duke Energy owns and operates the Roxboro Lined Ash Monofill (the "Roxboro Landfill") in Semora, North Carolina, to store solidwaste produced at its Roxboro power plant. See [D.E. 135] ¶¶ 4-5; [D.E. 184] ¶¶ 4-5; [D.E. 123] ¶ 1; [D.E. 186] ¶ 1. BlackRock is an engineering firm that "specializes in solid waste landfill services, including the design and permitting of landfills." [D.E. 135] ¶ 2; [D.E. 184] ¶ 2.

"North Carolina requires every solid state waste management facility to obtain a Permit to Construct ("PTC") issued by the Solid Waste Management Section of the North Carolina Department of Environmental Quality ("DEQ")" before constructing a landfill. [D.E. 135] ¶¶ 6, 10; [D.E. 184] ¶¶ 6, 10.4 PTC applications must contain "detailed plans and specifications prepared by a professional engineer" that include "a grading plan, construction plan, [and] site development showing phases or progression of operation in five-year or ten-year phases of construction and operation." [D.E. 135] ¶¶ 7, 9 (alteration and quotation omitted); [D.E. 184] ¶¶ 7, 9.5 Once a facility owner completes landfill construction, a professional engineer must prepare a Construction Quality Assurance Report ("CQA Report") that certifies that "the landfill was constructed properly and consistent with the plans approved under the PTC." [D.E. 135] ¶¶ 11-12; [D.E. 184] ¶ 11-12. "The CQA Report comprises technical drawings and text reflecting the as-built conditions of the landfill." [D.E. 135] ¶ 13; [D.E. 184] ¶ 13. The DEQ then reviews the CQA Report and, if approved, issues to the facility owner a Permit to Operate ("PTO") to operate (i.e., store solid waste at) the landfill. See [D.E. 135] ¶¶ 14-15; [D.E. 184] ¶¶ 14-15.

In 1999, Duke Energy's predecessors, Carolina Power & Light Co. ("CP&L") and Progress Energy, Inc. ("Progress Energy"), hired Gary W. Ahlberg ("Ahlberg") to provide engineering services for the Roxboro Landfill based on Duke Energy's plan to transition the Roxboro Landfill from an unlined to a lined facility (the "Landfill transition plan"). See [D.E. 123] ¶ 4; [D.E. 186] ¶ 4; [D.E. 135] ¶¶ 18-19; [D.E. 184] ¶¶ 18-19. The parties agreed that the Landfill transition planwould occur in nine phases, but the parties dispute the extent of collaboration between Ahlberg and Duke Energy. Compare [D.E. 135] ¶ 20, with [D.E. 184] ¶ 20. The DEQ approved Phases 1 through 5 of the Landfill transition plan. See [D.E. 123] ¶ 6; [D.E. 186] ¶ 6.

Ahlberg performed under an Individual Project Contract No. 14574 (the "First Contract"), which was "periodically expanded and maintained active by amendments." [D.E. 123] ¶ 4; see [D.E. 186] ¶ 4; [D.E. 200] ¶ 2; [D.E. 133-1]. Several provisions of the First Contract are relevant The First Contract allowed either party "to terminate the contract for convenience." [D.E. 135] ¶¶ 21, 23; [D.E. 184] ¶¶ 21, 23. The First Contract also deemed "any copyrightable material" to be "work for hire" under the Copyright Act, and Ahlberg "assigned all copyrights in any copyrightable materials produced thereunder to Duke Energy's predecessor-in-interest." [D.E. 135] ¶ 24; [D.E. 184] ¶ 24; [D.E. 133-1] 8 (emphasis in original). In addition, the First Contract provides that "any program, document, data or information supplied by [Ahlberg] to CP&L may be used, copied or disclosed by CP&L as necessary in the normal course of its business, notwithstanding any copyright of [Ahlberg] in such materials and notwithstanding any notices or legends appearing thereon." [D.E. 135] ¶ 24; [D.E. 184] ¶ 24; [D.E. 133-1] 13.

In 2006, Ahlberg formed BlackRock, and BlackRock assumed all contracts and responsibilities of Ahlberg. See [D.E. 123] ¶ 5; [D.E. 200] ¶ 1. BlackRock adopted a triangular logo as a service mark to identify its business. See [D.E. 123] ¶ 7; [D.E. 186] ¶ 7. In September 2011, BlackRock claims that Progress Energy requested recommendations for future phase plans from BlackRock. See BlackRock Add. [D.E. 184] ¶ 4; [D.E. 200] ¶ 4. In response, BlackRock requested a contract extension. See BlackRock Add. [D.E. 184] ¶ 5; [D.E. 200] ¶ 5. In March 2012, Progress Energy and BlackRock executed Amendment 30 to the First Contract, expanding the scope of BlackRock's work at the Roxboro Landfill "to include engineering support for the design and permitting of new capacity additions Phases 6 through 9." [D.E. 135] ¶ 27; [D.E. 184] ¶ 27; BlackRock Add. [D.E. 184] ¶ 7; [D.E. 200] ¶ 7. In Amendment 30, the parties "agreed thatBlackRock would retain a license to use work product but that such license rights shall not extend to any information or data that is specific to the Roxboro Plant, which shall remain the exclusive property of [Duke Energy]." [D.E. 135] ¶ 27 (emphasis in original; alteration and quotations omitted); [D.E. 184] ¶ 27; [D.E. 146] 3. BlackRock then created plans for Phase 6 of the Landfill transition plan, and BlackRock submitted the plans to Progress Energy. See [D.E. 123] ¶ 8; [D.E. 186] ¶ 8; [D.E. 135] ¶ 28; [D.E. 184] ¶ 28. The parties dispute the extent to which BlackRock and Duke Energy collaborated on the Phase 6 plans. Compare [D.E. 135] ¶ 28, with [D.E. 184] ¶ 28.

In January 2013, BlackRock and Progress Energy entered into a new Master Contract (the "Master Contract") to replace the First Contract. See [D.E. 123] ¶ 9; [D.E. 186] ¶ 9; [D.E. 135] ¶ 29; [D.E. 184] ¶ 29. The parties dispute when the Master Contract went into effect. Duke Energy contends that the Master Contract went into effect only after the parties executed a work authorization on August 7, 2013, while BlackRock claims that it went into effect on either April 1, 2012, or January 1, 2013, under the terms of the contract. Compare [D.E. 135] ¶ 29, with [D.E. 184] ¶ 29. The Master Contract retained provisions concerning termination. See [D.E. 135] ¶¶ 30-33. The Master Contract did not contain a "work made for hire" clause that would assign...

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