Kids' Town at Falls LLC v. The City of Rexburg, 4:20-cv-00083-DCN

CourtU.S. District Court — District of Idaho
Writing for the CourtDavid C. Nye, Chief U.S. District Court Judge.
PartiesKIDS' TOWN AT THE FALLS LLC, Plaintiff, v. THE CITY OF REXBURG, Defendant,
Docket Number4:20-cv-00083-DCN
Decision Date08 November 2021



No. 4:20-cv-00083-DCN

United States District Court, D. Idaho

November 8, 2021


David C. Nye, Chief U.S. District Court Judge.


Pending before the Court is Defendant City of Rexburg's (“the City”) Motion for Summary Judgment. Dkt. 24. Plaintiff Kids' Town at the Falls, LLC (“Kids' Town”)[1]opposes the Motion. Dkt. 27. Kids' Town also filed objections to certain evidence the City submitted in support of its Motion for Summary Judgment. Dkt. 27-1.

The Court held oral argument on September 2, 2021, and also requested supplemental briefing on a particular issue. The parties dutifully submitted their supplements. Dkts. 33, 34. The Court then took the motion under advisement. Upon review, and for the reasons outlined below, the Court overrules Kids' Town's objections and GRANTS the City's Motion for Summary Judgment.


Kids' Town began operating a children's discovery center in Ammon, Idaho, in June


of 2017. Kids' Town offers education classes (such as art, dance, science, and foreign languages), daycare services, and has an interactive area where children can play and learn. This area features a cityscape scene that includes store fronts, a post office, grocery store, gas station, roadway, farm area, and construction area-among other things. It is this interactive area that is at issue in this case.

On October 28, 2019, Kids' Town obtained a Certificate of Registration for a copyright-Registration No. VAu 1-377-803-covering five unpublished sculptural works: Kids' Town's Logo, Kids' Town's Gas Station & Garage, Kids' Town's Barn, Kids' Town's Grocery, and Kids' Town's Post Office.

In October 2018, the City opened a children's discovery center in Rexburg, Idaho, called Kidsburg. Similar to Kids' Town's discovery center, Kidsburg is an interactive learning environment. It too features a cityscape: complete with store fronts, a hospital, school, fire station, restaurant, bank, grocery store, and farm. The City has admitted that it visited Kids' Town's discovery center for inspiration when designing Kidsburg.

On February 18, 2020, Kids' Town filed suit against the City. Dkt. 1. In its suit, Kids' Town brings four causes of action.

Kids' Town's first cause of action is for copyright infringement pursuant to 35 U.S.C. § 501. In this claim, Kids' Town alleges the City impermissible copied its barn design and farm-yard wall art. In its response to the City's Motion for Summary Judgment, Kids' Town explained that “[its] interest are adequately and more appropriately protectable under trademark law” and, as a result, it was “withdraw[ing] [its] claims for copyright infringement.” Dkt. 27, at 2 n.1. Kids' Town confirmed the same during oral argument on


September 2, 2021. Accordingly, Count One is dismissed.

Count Two revolves around trademark infringement, trade dress infringement, and false designation of origin under 15 U.S.C. § 1125(a). Kids' Town argues its discovery center has a specific “look and feel, ” and that the City is infringing on this trade dress and reaping monetary and non-monetary benefits by misappropriating its look and feel.

In Kids' Town third cause of action, it asserts the City has engaged in unfair competition and deceptive trade practices under Idaho law.

Kids' Town's fourth and final cause of action is for common law trademark infringement.[2]

After discovery, the City moved for summary judgment. Dkt. 24. As part of its Motion, the City filed various documents in support. One of those documents was a declaration from its expert, Melissa Paugh. Dkt. 24-3. Paugh specializes in the planning and design of interactive, educational children's exhibitions such as those at issue in this case. Id. In its moving papers, the City repeatedly cited Paugh's declaration.

Kids' Town filed an opposition to the City's Motion. Dkt. 27. Simultaneously, Kids' Town filed a document entitled “Plaintiff's Objections to Evidence.” Dkt. 27-1. In this document, Kids' Town raises objections to the declaration of Sam Angell (counsel for the City) (Dkt. 24-4), and objects to various paragraphs of Paugh's declaration (Dkt. 24-3).


The City filed a reply to its Motion for Summary Judgment (Dkt. 30) and a response to Kids' Town's Objections (Dkt. 31).

On September 2, 2021, the Court held oral argument on the City's motion and Kids' Town's Objections. At oral argument, the Court also requested supplemental briefing from the parties in relation to a case neither had cited, but which the Court deemed critically important to the resolution of the issues presented. The parties timely filed their supplemental briefs (Dkts. 33, 34), and the matters are now ripe for the Court's review.


Summary judgment is appropriate where the moving party can show that, as to any claim or defense, “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The Court must enter summary judgment if a party “fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). One of the principal purposes of the summary judgment rule “is to isolate and dispose of factually unsupported claims or defenses.” Id. at 322. It is not “a disfavored procedural shortcut, ” but is instead the “principal tool[] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources.” Id. at 327.

“The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S.


242, 247-48 (1986) (emphasis in original). Material facts are those “that might affect the outcome of the suit under the governing law.” Id. at 248. Summary judgment is not appropriate “if the dispute about a material fact is ‘genuine,' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

The Court's role at summary judgment is not “to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson, 477 U.S. at 249. The Court does not make credibility determinations at this stage of the litigation, as such determinations are reserved for the trier of fact. Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir. 1992). In considering a motion for summary judgment, the Court must also “view[] the facts in the non-moving party's favor[.]” Zetwick v. Cty. of Yolo, 850 F.3d 436, 441 (9th Cir. 2017).

However, the Court need not accept allegations by the non-moving party if such allegations are not supported by sufficient evidence. Anderson, 477 U.S. at 249. Instead, the nonmoving party “must go beyond the pleadings and by its own evidence and ‘set forth specific facts showing that there is a genuine issue for trial.'” Far Out Productions, Inc. v. Oskar, 247 F.3d 986, 997 (9th Cir. 2001) (quoting Fed.R.Civ.P. 56(e)); Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (noting the nonmoving party must “identify with particularity the evidence that precludes summary judgment”). “If the evidence is colorable, or is not significantly probative, summary judgment may be granted.” Anderson, 477 U.S. at 249-50 (cleaned up).



A. Kids' Town's Objections

At the outset, the Court must address Kids' Town's objections, particularly those in reference to Paugh's declaration as her comments plays a role in the parties' briefs and the Court's decision today.

As mentioned, Kids' Town filed objections to Sam Angell and Melissa Paughs' declarations. Kids' Town objections to Angell's declaration are mostly procedural-that it is not dated, lacks certain signatures, and has exhibits which have not been authenticated. Kids' Town objections to Paugh's declaration are more substantive in nature.

1. Legal Standard

Federal Rule of Civil Procedure 56 makes clear that only admissible evidence may be considered in ruling on a motion for summary judgment. Fed.R.Civ.P. 56(c); see also Orr v. Bank of America, 285 F.3d 764, 773 (9th Cir. 2002). However, in determining admissibility for summary judgment purposes, it is the contents of the evidence rather than its form that must be considered. Fraser v. Goodale, 342 F.3d 1032, 1036-37 (9th Cir. 2003). If the contents of the evidence could be presented in an admissible form at trial, those contents may be considered on summary judgment. Id.

While the Court typically sees these issues come up via a motion to strike, a specific motion is not required. The advisory committee's notes to the most recent amendments to Rule 56 provide that a Rule 56(c)(2) objection “functions much as an objection at trial, adjusted for the pretrial setting. The burden is on the proponent to show that the material is admissible as presented or to explain the admissible form that is anticipated. There is no


need to make a separate motion to strike.” Fed.R.Civ.P. 56 advisory committee's notes to 2010 amendment (emphasis added). Motions to strike are limited to pleadings, which are defined by Federal Rule 7(a); affidavits and exhibits filed in support of, or in opposition to, a motion for summary judgment are not pleadings. See Albertson v. Fremont County, Idaho, 834 F.Supp.2d 1117, 1123 n.3 (D. Idaho 2011). Thus, the Court properly considers Kids' Town's objections to the declarations as just that: objections, not motions to strike.

2. Discussion

Kids' Town's procedural objections to Angell's...

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