Mcdonald Constr., Inc. v. Raymond & Kimberly Oborn, Husband & Wife, & Tushie-Montgomery Assocs., Inc.
| Decision Date | 19 May 2016 |
| Docket Number | Case No. 15-cv-3126 (JRT/TNL) |
| Parties | McDonald Construction, Inc., a Minnesota corporation, Plaintiff, v. Raymond and Kimberly Oborn, husband and wife, and Tushie-Montgomery Associates, Inc., a Minnesota corporation Defendants. |
| Court | U.S. District Court — District of Minnesota |
REPORT AND RECOMMENDATION
Keith S. Moheban and Benjamin D. Eastburn, Stinson Leonard Street LLP, 150 South 5th Street, Suite 2300, Minneapolis, MN 55402 (for Plaintiff);
Dustin D. Fossey, Fossey Law Firm, PLLC, P.O. Box 24357, Edina, MN 55424 (for Defendants Raymond and Kimberly Oborn); and
Kristine M. Boylan, Michael M. Sawers, and John M. Degnan, Briggs & Morgan, PA, 80 South 8th Street, Suite 2200, Minneapolis, MN 55402 (for Defendant Tushie-Montgomery Associates, Inc.).
This matter is before the Court, United States Magistrate Judge Tony N. Leung, on Defendant Tushie-Montgomery Associates, Inc.'s Motion for Judgment on the Pleadings, (ECF No. 13), and Defendants Raymond and Kimberly Oborn's Joinder in Motion for Judgment on the Pleadings, (ECF No. 32). These motions have been referred to the undersigned for a report and recommendation to the Honorable John R. Tunheim, Chief United States District Judge for the District of Minnesota, pursuant to 28 U.S.C. § 636 (b)(1)(B). (ECF No. 44). For the reasons set forth below, this Court recommends that Defendants' motions be DENIED.
Plaintiff McDonald Construction, Inc. ("McDonald") filed suit alleging Defendant Tushie-Montgomery Associates, Inc. ("Tushie-Montgomery") and Defendants Raymond and Kimberly Oborn ("The Oborns") violated copyright law. (ECF No. 1). Tushie-Montgomery filed its answer and asserted a crossclaim of indemnification and contribution against the Oborns. (ECF No. 8).1 The Oborns filed their answer and asserted an indemnification and contribution crossclaim against Tushie-Montgomery. (ECF No. 10). Tushie-Montgomery moved for a judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (ECF No. 13). The Oborns joined this motion. (ECF No. 32).
Under Rule 12(c), "a party may move for judgment on the pleadings" after pleadings are closed, but early enough not to delay trial. When considering a motion for judgment on the pleadings, the Court accepts as true all facts pleaded by the non-moving party and grants reasonable inferences from the pleadings in the non-moving party's favor, but need not accept conclusory allegations of law. Gallagher v. City of Clayton, 699 F.3d 1013, 1016 (8th Cir. 2012) (citations omitted); Faibisch v. Univ. of Minnesota, 304 F.3d 797, 803 (8th Cir. 2002). "Judgment on the pleadings is appropriate if there isno material issue of fact to be resolved and the moving party is entitled to judgment as a matter of law." Buddy Bean Lumber Co. v. Axis Surplus Ins. Co., 715 F.3d 695, 697 (8th Cir. 2013) (citing Thach v. Tiger Corp., 609 F.3d 955, 957 (8th Cir. 2010)).
Courts "generally may not consider materials outside the pleadings when deciding a motion . . . for judgment on the pleadings." Greenman v. Jessen, 787 F.3d 882, 887 (8th Cir. 2015) (citing Porous Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999)). A court, "may, however, consider some materials that are part of the public record or do not contradict the complaint, as well as materials that are necessarily embraced by the pleadings." Greenman, 787 F.3d at 887 (citing Porous Media, 186 F.3d at 1079). Thus, a court "may consider the pleadings themselves, materials embraced by the pleadings, exhibits attached to the pleadings, and matters of public record." Mills v. City of Grand Forks, 614 F.3d 495, 498 (8th Cir. 2010) (citing Porous Media, 186 F.3d at 1079). "Documents necessarily embraced by the pleadings include 'documents whose contents are alleged in a complaint and whose authenticity no party questions, but which are not physically attached to the pleading.'" Ashanti v. City of Golden Valley, 666 F.3d 1148, 1151 (8th Cir. 2012) (quoting Kushner v. Beverly Enters., Inc., 317 F.3d 820, 831 (8th Cir. 2003)). If, on a Rule 12(c) motion, "matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment . . . ." Fed. R. Civ. P. 12(d). If the Court converts the Rule 12(c) motion into a Rule 56 motion for summary judgment, "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Id.
Here, all parties have submitted or referenced materials outside the pleadings. (See, e.g., Tushie-Montgomery's Mem. of Law, at 8-9, n. 1, ECF No. 15; Decl. of Gary Tushie, ECF No. 16; Decl. of Keith S. Moheban, ECF No. 37; Decl. of Teresa St. Amant, ECF No. 38). These are not documents necessarily embraced by the pleadings, matters of public record, or attached to the pleadings. While some parts of the submitted affidavits do not ineluctably contradict the complaint, the veracity of the affiants has not been tested. The Court does not find it appropriate that the parties would submit such materials when the parties have elected to engage in the particular choice of a Rule 12(c) motion. Given that this is a motion for judgment on the pleadings, the Court will only consider the pleadings themselves. Therefore, the Court declines to consider the additional materials submitted by all parties. Because the Court declines to consider this information, this remains a motion for judgment on the pleadings and does not convert into a summary judgment motion. See Fed. R. Civ. P. 12(d).
McDonald is a residential home building company. (Compl. ¶¶ 1, 6, ECF No. 1). McDonald has built several homes using its "Terra Vista Model #1" design plans. (Compl. ¶¶ 7, 8). Homes built using this design plan sell for prices starting at $670,000. (Compl. ¶ 21). McDonald has sought copyright registration for the Terra Vista Model #1 design plans from the United States Copyright Office. (Compl. ¶¶ 7, 24).
The Oborns held discussions with McDonald for the purchase of a model home built by McDonald in Plymouth, Minnesota pursuant to the Terra Vista Model #1 design plans. . During these discussions with McDonald, the Oborns visitedand walked through the Plymouth model home, took photographs of the interior while on the walkthrough, viewed the design plans, and possessed handouts depicting the floor plan. (Compl. ¶¶ 10, 14; Oborns Ans. ¶ 10, ECF No. 10). The Oborns and McDonald executed a purchase agreement for the Plymouth model home on April 25, 2013. (Compl. ¶ 11; Oborns Ans. ¶ 10). At the Oborns' request, McDonald emailed a copy of "some or all" of the Terra Vista Model #1 design plans to the Oborns. (Compl. ¶ 12; Oborns Ans. ¶ 12). McDonald also emailed the Oborns information on the type and color of finishes and paint used in the Plymouth home. (Compl. ¶ 12; Oborns Ans. ¶ 12). On June 24, 2013, the Oborns cancelled the purchase agreement. (Compl. ¶ 13; Oborns Ans. ¶ 13). McDonald then refunded earnest money that the Oborns deposited pursuant to the purchase agreement. (Compl. ¶ 13).
The Oborns, at some point in time, shared a copy of the Terra Vista Model #1 design plans with Tushie-Montgomery. (Compl. ¶ 14; Tushie-Montgomery Cross-Cl. ¶ 2, ECF No. 8). Tushie-Montgomery then created plans for a home for the Oborns. (Compl. ¶ 15; Oborns Cross-Cl. ¶ 1, ECF No. 10; Tushie-Montgomery Ans. to Oborns Cross-Cl. ¶ 2, ECF No. 12). The Oborns then used plans created by Tushie-Montgomery to build a home in Chaska, Minnesota. ).
McDonald alleges that the Chaska home is substantially similar to the Plymouth home. (Compl. ¶¶ 16, 17). The front of the home and how it appears from the street is "strikingly similar." (Compl. ¶ 16). McDonald further alleges that the overall floor plan, arrangement of rooms, details of features, dimensions, and specifications are "essentiallyidentical." (Compl. ¶ 16). McDonald lists examples of similarity: four-car garage with attached gymnasium; dining room that opens to a great room, separated only by columns; cross-beams in the study; arch of the great room; similar stone and color pattern on the fireplace, as well as its arching; floor plan of the main floor; double refrigerator with similar staining color; layout and dimensions of two bedrooms; and similar entrance to a bedroom off the staircase. (Compl. ¶ 16). McDonald asserts that these similarities show the Oborns and Tushie-Montgomery have copied the Terra Vista Model #1 design plans to create the Chaska home. (Compl. ¶¶ 18, 19, 25). Neither the Oborns nor Tushie-Montgomery have received authorization or a license from McDonald to use the Terra Vista Model #1 design plans. (Compl. ¶ 20). Based on this, McDonald filed suit, alleging one count of copyright infringement against the Oborns and Tushie-Montgomery. (Compl. ¶¶ 22-28).
As noted above, judgment on the pleadings is appropriate if there is no material issue of fact to be resolved and the moving party is entitled to judgment as a matter of law." Buddy Bean Lumber, 715 F.3d at 697 (citing Thach, 609 F.3d at 957). Here, Plaintiff has brought a single claim: copyright infringement.
To establish copyright infringement, McDonald must show ownership of a valid copyright and that Defendants copied original elements of its work. Mulcahy v. Cheetah Learning LLC, 386 F.3d 849, 852 (8th Cir. 2004) (citing Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Subject to certain exceptions, the copyright ownermay not sue for infringement under the federal Copyright Act until the owner has delivered "the deposit, application, and fee required for registration" to the United States Copyright Office. 17 U.S.C § 411(a); Reed Elsevier, Inc. v. Muchnick, 568 U.S. 154, 157 (2010); Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006). Failure to comply with this...
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