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Asset Marketing Systems Insurance Services, LLC v. McLaughlin

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA


November 1, 2007

ASSET MARKETING SYSTEMS INSURANCE SERVICES, LLC, PLAINTIFF,
v.
WILLIAM J. MCLAUGHLIN, JR.; MCLAUGHLIN FINANCIAL GROUP, LLC; AND SENIOR RESOURCES SERVICES, LLC., DEFENDANTS.

The opinion of the court was delivered by: Hon. Jeffrey T. Miller United States District Judge

ORDER DENYING PLAINTIFF'S MOTION FOR RECONSIDERATION; DENYING DEFENDANTS' MOTION FOR THE RECONSIDERATION

Both Plaintiff Asset Marketing Systems Insurance Services, LLC. ("AMS") and Defendants William J. McLaughlin, Jr., The McLaughlin Financial Group, and Senior Resource Services (collectively "McLaughlin") move for reconsideration of this court's August 20, 2007 order granting in part and denying in part cross motions for summary judgment or summary adjudication ("Order"). Pursuant to Local Rule 7.1(d)(1), this matter is appropriate for decision without oral argument. For the reason set forth below, both motions for reconsideration are denied.

Plaintiff's Motion for Reconsideration*fn1

Plaintiff moves for reconsideration of this court's findings that (1) genuine issues of material fact preclude granting summary judgment on the issue of whether or not McLaughlin willfully infringed AMS's copyrights and (2) AMS failed to meet their summary judgment burden to show that McLaughlin failed to return an alleged missing original binder to AMS upon termination of the parties' contractual relationship. The court denies reconsideration on the raised grounds.

With respect to the issue of willful infringement, the court notes that summary judgment is generally inappropriate where intent is at issue. See Sega Enterprises Ltd. v. Maphia, 948 F.Supp. 923, 936 (N.D. Cal. 1996) ("Generally, a determination as to willfulness requires an assessment of a party's state of mind, a factual issue that is not usually susceptible to summary judgment."). Moreover, that is particularly true where, like here, the parties identify genuine disputed issues of material fact as set forth in the parties' submissions and the court's Order. (Order at p.13:10 - 14:4).

With respect to the return of the original binder, the court notes that, as identified in the Order, AMS failed to satisfy its summary judgment burden to demonstrate a disputed genuine legal or factual issue. (Order at p.6:17-23, Docket No. 49). In opposition to McLaughlin's motion for summary adjudication on the narrow issue raised by the alleged failure to return the binder, AMS set forth a five sentence opposition, (Oppo. at p.21:19-28, Docket No. 43), and the only evidence cited was the Akerstein declaration. The Akerstein declaration, (Docket No. 43-6), did not even address the return of the binder. Consequently, AMS failed to meet its evidentiary burden and summary judgment was appropriately entered in favor of McLaughlin on this claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (opposing party who bears the burden of persuasion at trial has burden to designate "specific facts showing that there is a genuine issue for trial"). In its motion for reconsideration, AMS cites for the first time the declarations of Bob Olsen and Dee Costa to create genuine issues of material fact with respect to the return of the binder.*fn2 Even assuming the identified declarations are sufficient to create a genuine issue of material fact on the merits, Defendants' failure to cite this evidence in opposition to McLaughlin's motion for summary adjudication is a complete failure of proof. It is not the role of the court to mine the record to identify genuine issues of material fact to support the arguments presented. See Schneider v. TRW, Inc., 938 F.2d 986, 990 n.2 (9th Cir. 1991) ("district court is under no obligation to mine the full record for issues of triable fact"). Rather, that is the role of the parties, not the court.

In sum, the court denies Plaintiff's motion for reconsideration as it fails to identify any newly discovered facts, change in intervening law, or manifest injustice.

Defendants' Motion for Reconsideration

Defendants move for reconsideration of this court's finding that portions of McLaughlin's March 28, 2006 handout violated Plaintiff's copyrighted materials as a matter of law. Defendants do not argue that newly discovered evidence or changes in the law warrant relief. Rather, McLaughlin contends that the court did not appreciate nor "recognize the total dissimilarity of the topics," (Motion at p.11:9-10), between the March 28, 2006 handout and AMS's copyright and therefore relief should be granted to avoid a manifest injustice. The court denies the motion for reconsideration.

The thrust of McLaughlin's argument is that the AMS materials are entitled to only "thin" protection and therefore only verbatim copying constitutes infringement as a matter of law. This argument is not persuasive. The court notes that such terms as "thin" and "broad," as used in Apple Computer, Inc. v. Microsoft Corp., 35 F.3d 1435 (9th Cir. 1994), Satava v. Lowry, 323 F.3d 805 (9th Cir.2003), and Ets-Hokin v. Skyy Spirits, Inc., 323 F.3d 763 (9th Cir. 2004), are helpful to describe the extreme ends of the copyright continuum but are simply another way of stating that "[o]riginality remains the sine qua non of copyright." Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 348 (1991). The greater the variations of expression of a work, the greater the copyright protection. See Apple, 35 F.3d at 1146-47. Conversely, limited or narrow variations of expression result in limited copyright protection. Id. Here, there is little doubt that AMS's copyright is afforded only limited copyright protection because of the limited degree of originality demonstrated by the materials.

As set forth in the Order, "[t]he originality of the 10 Ways Senior Program is demonstrated by the arrangement, selection, and identification of topics touching on financial considerations for seniors." (Order at p.9:27 - 10:2). A comparison of AMS's copyrighted materials to McLaughlin's materials of January 12, 2006 and March 28, 2006 reveals that McLaughlin copied constituent elements of AMS's materials as a matter of law. (Plaintiff's Exhs. 1, 18, 20). The January 12, 2006 materials are verbatim copies of AMS's materials. The March 28, 2006 materials modified and made minor changes to AMS's handouts. However, McLaughlin continued to copy the arrangement, selection, layout, and the expressions of the ideas contained therein. (Plaintiff's Exhs. 1, 20). The "modifications to the materials are relatively minor and infringe AMS' protectable interests." (Order at p.12:9-10). Consequently, there is no genuine issue of material fact that McLaughlin's materials of January 12, 2006 and March 28, 2006 infringe constituent elements of AMS' copyright.

In sum, the court denies both motions for reconsideration.

IT IS SO ORDERED.


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