Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Mintosh v. Northern California Universal Enterprises Co.

February 4, 2009

ROGER MCINTOSH, PLAINTIFF,
v.
NORTHERN CALIFORNIA UNIVERSAL ENTERPRISES COMPANY, A CALIFORNIA CORPORATION; LOTUS DEVELOPMENTS, LLP; THE CITY OF WASCO, A MUNICIPAL CORPORATION; AND DOES 1 THROUGH 10, INCLUSIVE, DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER GRANTING PLAINTIFF'S MOTION FOR LEAVE TO AMEND THE FIRST AMENDED COMPLAINT ORDER VACATING PREVIOUSLY SCHEDULED FILING DEADLINES AND HEARING DATES

(Document 50)

INTRODUCTION

On November 18, 2008, Plaintiff, Roger McIntosh, ("Plaintiff") filed a Motion to Amend the First Amended Complaint (hereinafter "FAC") and extend deadlines. Plaintiff seeks to add a new defendant, Dewalt C.M., Inc. ("Dewalt") to the FAC. Plaintiff is also requesting that the court alter dates outlined in a previously issued scheduling order. No opposition to the motion was filed. A hearing was scheduled for January 30, 2009, at 9:30 a.m. After reviewing the motion, the court has determined that this matter is suitable for decision without oral argument pursuant to Local Rule 78-230(h). The hearing on January 30, 2009 was vacated. Having considered all materials submitted, Plaintiff's Motion to Amend the First Amended Complaint is GRANTED and Plaintiff's Motion to Amend Dates is GRANTED IN PART.

PROCEDURAL BACKGROUND

Plaintiff filed the initial Complaint on July 26, 2007, citing a single cause of action against Northern California Universal Enterprises Company and Lotus Development LP (collectively "Northern") for copyright infringement. On June 12, 2008, a FAC was filed pursuant to a stipulation of the parties, adding the City of Wasco as a defendant, and alleging two causes of action copyright infringement and contributory copyright infringement. On November 18, 2008, Plaintiff filed the instant motions.

1. Plaintiff's Allegations

In the FAC, Plaintiff alleges that in or about 1992, McIntosh contracted with the Legacy Group to design and supervise the private development and construction of a subdivision called the Valley Rose Estates Project ("the subdivision") on a parcel of land owned by the Legacy Group. Specifically, McIntosh contracted with the Legacy Group to : (1) develop the subdivision's master plans for water, sewer, and drainage systems; (2) develop a phase traffic and circulation plan; (3) determine boundaries; (4) develop a tentative tract map for the subdivision; and (5) develop landscape design unique to the subdivision.

Plaintiff alleges that according to the contract between McIntosh and the Legacy Group, all work product McIntosh created for the subdivision remained McIntosh's property and McIntosh retained the right to use the plans without the Legacy Group's consent, including but not limited to, McIntosh's designs and technical drawings. In addition, the Legacy Group allegedly agreed that McIntosh's designs and technical drawings could only be used by the Legacy Group on the Valley Rose Estates project.

It is alleged that in accordance with the contract, McIntosh designed the overall layout of the subdivision of individual plots and common spaces. McIntosh also allegedly created landscape designs for the subdivision which were depicted in technical drawings ("the plans") that are subject to a Copyright Registration Certificate No. VAU-721-180. McIntosh allegedly is the sole author and owner of the subdivision and landscape designs embodied in the technical drawings and the copyright.

In 1993, McIntosh allegedly submitted the plans to the City of Wasco in order to obtain a building permit to commence construction of the subdivision and the plans were approved. Construction of the subdivision allegedly commenced, however, in 1994, the Legacy group declared bankruptcy and the City of Wasco purchased the subdivision at a tax sale.

Plaintiff alleges that in December 2004, Defendants Lotus and Northern purchased the subdivision, with all the improvements from the City of Wasco. In or about 2005 or 2006, Mr. Wu of Northern allegedly contacted Plaintiff and asked if he could use the plans. Plaintiff allegedly informed Mr. Wu that Northern could use the plans if Mr. Wu paid for them. Mr Wu allegedly refused to pay the price proposed by Plaintiff for use of the plans.

In or about October 2006, Plaintiff alleges that without paying McIntosh for the Plans, Defendants commenced construction on the subdivision. Plaintiff alleges that Defendants' construction of the subdivision is based on the landscape and subdivision designs similar to the subdivision and landscape design conceived and created by Plaintiff's copyrighted plans. Specifically, Plaintiff contends that a feature-by-feature comparison between the subdivision and the plans reveals substantial similarity in, among other things, the streets, curbs and gutters, utilities, walls fences, entry monuments, streets lights, landscaping, and references lines, annotations, and reference numbering. Plaintiff alleges that Defendants, without permission or license, obtained and copied the plans and are using them or have used them to complete the subdivision. Plaintiff alleges that Defendants have not paid for the use of the plans.

In the SAC, Plaintiffs seek to add Defendant Dewalt because at a recent deposition, Dewalt's president, Jeffrey Gutierrez, testified that he had obtained and made copies of McIntosh's tentative map. Declaration of Jeffrey A. Travis dated December 30, 2008 attached to Plaintiff's Motion for Leave to Amend at para. 5; Testimony of Gutierrez at Nov. 24, 2008, deposition attached to Plaintiff's Motion ("Gutierrez Tmy") at pg. 13: 3-25. Gutierrez also testified that he needed the plans to complete the project for Northern and distributed copies of the plan via e-mail. Gutierrez Tmy at pg. 33: 20-36: 4. Dewalt also admitted that it made a similar tentative and final map to McIntosh's ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.