Burke v. Lewis Investment Company of Nevada, LLC

• Court: District Court, D. Nevada
• Decided: February 5, 2025
• Docket: 3:23-cv-00184
• Status: Unknown

Opinion

3 UNITED STATES DISTRICT COURT

4 DISTRICT OF NEVADA

5 * * *

6 DONALD J. BURKE, et al., Case No. 3:23-cv-00184-MMD-CSD

7 Plaintiffs, ORDER v. 8 LEWIS INVESTMENT COMPANY OF 9 NEVADA, LLC, et al.,

10 Defendants.

11 12 I. SUMMARY 13 Plaintiffs Donald J. Burke (“Burke Sr.”) and Donald W. Burke (“Burke Jr.”) sued 14 Defendants Lewis Investment Company of Nevada, LLC (“Lewis”), Kiley Ranch Six 15 Apartments, LLC, and Luke Dragovich for alleged copyright infringement and unjust 16 enrichment regarding the development of an apartment complex known as Kiley Ranch 17 in Sparks, Nevada that allegedly infringed on copyrighted architectural plans developed 18 by Plaintiffs. (ECF No. 1.) Defendants counterclaimed that Plaintiffs’ copyrights are invalid 19 and not infringed by Kiley Ranch. (ECF No. 11 at 8-11.) Before the Court are Defendants’ 20 motions to exclude Burke Sr.’s expert testimony (ECF No. 28) and for summary judgment 21 (ECF No. 39 (“Motion”)), along with some related motions to seal (ECF Nos. 33, 48, 60).1 22 Because Plaintiffs waited too long to file this lawsuit, an agreement between an 23 organization they used to work for and Lewis precludes their copyright and unjust 24 25 1The Court has also reviewed the corresponding responses and replies. (ECF Nos. 26 38, 52, 54, 59.) Plaintiffs did not respond to any of Defendants’ motions to seal. Plaintiffs also submitted some sealed documents in a manner noncompliant with the Court’s Local 27 Rules and the protective order in this case. The Court addresses that noncompliance along with the motions to seal in this order. In addition, Defendants requested oral 28 argument on their motion for summary judgment. (ECF No. 39 at 1.) The Court declines their request because it finds oral argument unnecessary. See LR 78-1 (“All motions may 2 Motion, deny their motion to exclude expert testimony as moot, and grant them limited 3 declaratory relief consistent with the Court’s other findings in this order. 4 II. BACKGROUND 5 The following facts are undisputed unless otherwise noted. Lewis develops and 6 manages apartment buildings. (ECF No. 49-1 (sealed) at 3.) Kiley Ranch Six Apartments, 7 LLC is a special purpose entity formed by Lewis to develop a residential apartment 8 complex in Sparks, Nevada, known as Homecoming at Kiley Ranch (the “Kiley Ranch 9 Project”). (Id.) Dragovich is an in-house engineer and architect for Lewis who used to 10 work with Plaintiffs. (Id.; ECF No. 55-1 (sealed) at 5.) Burke Sr. is an architect and Burke 11 Jr. is a computer operator who helps his father prepare architectural documents. (ECF 12 No. 1 at 3.) 13 In 2011, 2015, and 2017, Plaintiffs registered three copyrights in multifamily 14 apartment building designs. (ECF Nos. 40-5 at 2, 40-6 at 2, 41-6 at 2.) Meanwhile, as 15 pertinent here, Burke Sr. formed a company with William D. Pennington and John Burkett 16 called Pacific West Design-Build Services, LLC (“Pac West”) in 2016. (ECF No. 42-1 at 17 3.) 18 Pac West and Lewis-affiliated companies worked together between 2016 and 19 2019. (ECF No. 49-1 (sealed) at 4.) Pac West and Lewis formalized their relationship by 20 signing the Master Consultant Agreement for Design Build Services dated June 16, 2016 21 (the “MCA”). (ECF No. 49-3 (sealed) at 2; see also ECF No. 49-1 (sealed) at 4.) The MCA 22 contains a key ownership term that is the subject of further discussion below. (ECF No. 23 49-3 (sealed) at 7-8.) And as also further discussed below, Pac West and Lewis 24 subsequently entered into several other agreements. 25 Pac West dissolved in 2019. (ECF No. 42-16; see also ECF No. 55-1 (sealed) at 26 3 (stating he was terminated by Pac West in 2019).) Lewis then retained Integrated 27 Design Build Solutions (“IDBS”) to continue design of the Kiley Ranch Project. (ECF No. 28 49-1 (sealed) at 6.) Lewis’ affiliate Pioneer Parkway Holding Company, LLC entered into 2 any plans or drawings along with any corresponding intangible property. (Id. at 6; see 3 also ECF No. 49-11 at 7-8.) Defendant Kiley Ranch Six Apartments, LLC later entered 4 into a ‘short form’ agreement that incorporated by reference the master consulting 5 agreement between Pioneer Parkway Holding Company, LLC and IDBS, but did not 6 supersede or modify the ownership term. (ECF No. 49-12.) 7 In November 2019, Plaintiffs sued Pacific West Contractors of California, Inc., 8 Pacific West Contractors of Nevada, IDBS, Pacific West Service Company, Pacific West 9 Companies, LLC, Pacific West Operations, LLC, and Pacific West Operating Group, LLC, 10 alleging infringement of the same copyright registrations at issue here. See Burke et al. 11 v. Pacific West Contractors of California, Inc. et al., Case No. 3:19-cv-00687-MMD-WGC, 12 at ECF No. 1 (D. Nev. Filed Nov. 15, 2019) (“Pacific West Contractors”). Plaintiffs did not 13 sue Lewis or its affiliated entities in that case. See id. 14 Eventually, Lewis hired Dragovich and completed the plans for the Kiley Ranch 15 Project in-house with his help. (ECF No. 49-1 (sealed) at 7.) Lewis received approval for 16 the Kiley Ranch Project in 2022 and began construction that year as well. (Id. at 7-8.) 17 Plaintiffs sent Demir (“Ted”) Erkan, a senior employee of Lewis and its affiliates, a demand 18 letter alleging that the Kiley Ranch Project infringed their copyrights in September 2022. 19 (Id. at 8; see also ECF No. 46-5.) Plaintiffs filed this lawsuit on May 3, 2023. (ECF No. 1.) 20 III. DISCUSSION 21 The Court begins by addressing the pending motions to seal and the related issue 22 of how Plaintiffs filed sealed documents. The Court then addresses some of the 23 dispositive arguments raised in Defendants’ Motion. Because the Court finds Defendants 24 are entitled to summary judgment, the Court denies their motion to exclude Burke Sr.’s 25 expert testimony (ECF No. 28) as moot. 26 A. Sealed Documents 27 Defendants move to file some exhibits to their pending motions under seal, along 28 with seeking permission to redact portions of their briefs that quote or refer directly to 2 (regarding the Motion), 59 (regarding the reply filed in support of the Motion).) As noted, 3 Plaintiffs did not oppose these motions. The Court finds the pending motions dispositive; 4 a motion for summary judgment is obviously so, and the other motion seeks exclusion of 5 expert testimony from a party witness, which could be dispositive. Thus, to overcome the 6 strong presumption in favor of public access, Defendants must make particularized 7 showings as to why these exhibits should be sealed and provide compelling reasons, 8 supported by specific factual findings, for their request. See Kamakana v. City & Cty. of 9 Honolulu, 447 F.3d 1172, 1178 (9th Cir. 2006); Pintos v. Pac. Creditors Ass’n, 605 F.3d 10 665, 678 (9th Cir. 2010). In general, compelling reasons for sealing exist when court 11 records might become a vehicle for improper purposes, such as “to gratify private spite, 12 promote public scandal, circulate libelous statements, or release trade secrets.” Demaree 13 v. Pederson, 887 F.3d 870, 884 (9th Cir. 2018) (quoting Kamakana, 447 F.3d at 1179). 14 Applying these standards, the Court will grant Defendants’ motions to seal in part 15 and deny them in part. The motions are denied to the extent Defendants seek to keep 16 under seal the key ownership provision in the MCA. Defendants disclose the key 17 elements of this term in the unredacted text surrounding the redaction of the term itself. 18 (See, e.g., ECF No. 39 at 8.) It is illogical for Defendants to disclose and rely upon key 19 elements of this term while seeking to keep the term itself redacted. Moreover, because 20 the Court finds this term material to resolution of this case, the public interest in disclosing 21 it is heightened. In addition, the fact that Lewis often negotiates for ownership of 22 architectural plans it purchases along with the corresponding intangible rights to those 23 plans is not a trade secret. As noted, Defendants revealed that fact in their unredacted 24 briefing. Finally, the mere fact that information is subject to a protective order does not, 25 standing alone, constitute good cause for filing that information under seal. See Heath v. 26 Tristar Prod., Inc., Case No. 2:17-cv-02869-GMN-PAL, 2019 WL 12311995, at *2 (D. Nev. 27 Apr. 17, 2019). The Court accordingly orders Defendants to re-file unredacted versions 28 of the MCA and its briefs that remove redactions of quotations of the MCA within 10 days. 2 motion is denied. (ECF No. 33.) 3 However, the Court finds that Defendants have otherwise presented compelling 4 reasons supporting sealing the rest of the information they seek to file under seal. 5 Defendants otherwise seek to seal contracts with confidential terms and financial 6 information regarding their payments to other parties they have contracted with to develop 7 apartment complexes. (ECF Nos. 48, 60.) And Defendants’ third motion to seal largely 8 seeks to file under seal the same information they moved to seal in their second motion 9 to seal. (Id.) Defendants provide specific, factual reasons for each document they seek 10 to file under seal. (ECF No. 48 at 3-5.) Defendants also proffered Erkan’s declaration 11 along with this motion, in which he asserts that the contracts and financial documents 12 Defendants seek to file under seal contain sensitive nonpublic information that could harm 13 Defendants’ commercial standing if disclosed, including but not limited to trade secret 14 information. (ECF No. 48-1 at 1-2.) Documents containing “proprietary, trade secret, and 15 technical information” may properly be filed under seal. Amarin Pharma, Inc. v. W.-Ward 16 Pharms. Int’l Ltd., 407 F. Supp. 3d 1103, 1119 (D. Nev. 2019) (citation omitted). In sum, 17 the Court grants Defendants’ second and third motions to seal except to the extent they 18 seek to file the MCA and references to it under seal. (ECF Nos. 48, 60.) 19 Plaintiffs did not file any motions to seal but included redactions in their response 20 to the Motion and went ahead and filed their exhibits to it under seal. (ECF Nos. 54, 55 21 (and exhibits thereto), 56 (and exhibits thereto).) The approach Plaintiffs took violates LR 22 IA 10-5 along with the protective order Plaintiffs signed, and which United States 23 Magistrate Judge Craig S. Denney entered. (ECF No. 23 at 10-12.) Plaintiffs have 24 accordingly no excuse for their noncompliance with the Court’s Local Rules and an order 25 that governs in this very case. The Court thus orders Plaintiffs to file a motion to seal 26 within 10 days consistent with LR IA 10-5 and Kamakana, 447 F.3d at 1178-79, justifying 27 the sealing decisions they already made. The Court further orders Plaintiffs to file, under 28 seal and at the same time, an unredacted version of their response to the Motion, which 2 motion to seal once they file it. 3 B. Summary Judgment Motion 4 Defendants raise several, alternative arguments in their Motion as to why they are 5 entitled to summary judgment. The Court addresses below only some of those 6 arguments, but overall agrees that Defendants are entitled to summary judgment on 7 Plaintiffs’ claims against them. The Court then addresses Defendants’ counterclaims. 8 1. Statute of Limitations 9 Defendants first argue they are entitled to summary judgment on Plaintiffs’ 10 copyright infringement claim because it is time barred. (ECF No. 39 at 15-16.) They more 11 specifically argue that Plaintiffs stated in verified discovery responses in Pacific West 12 Contractors that they believed the Kiley Ranch apartment buildings were infringing as of 13 August 12, 2019—or more than three years before they filed suit. (Id.) Plaintiffs concede 14 that they “did suspect and believe” that their former business partners were using their 15 designs for the Kiley Ranch Project in 2019, but contend a genuine dispute of material 16 fact precludes summary judgment on this issue because they submitted a declaration 17 from Burke Sr. with their opposition to the Motion in which he states Plaintiffs thought 18 Defendants would not continue using their designs after Defendants fired their mutual, 19 former business partners. (ECF No. 54 at 8-9.) Defendants reply that the Court should 20 disregard Burke Sr.’s declaration because it is self-serving and unreasonable, and other 21 evidence before the Court supports that he was aware of the potentially infringing nature 22 of the Kiley Ranch apartments in August 2019. (ECF No. 61 (sealed) at 7-8.) 23 “7 U.S.C. § 507 establishes the statute of limitations under the Copyright Act: ‘No 24 civil action shall be maintained under the provisions of this title unless it is commenced 25 within three years after the claim accrued.”’ Starz Ent., LLC v. MGM Domestic Television 26 Distribution, LLC, 39 F.4th 1236, 1239 (9th Cir. 2022). “[T]he three-year limitations period 27 runs from the date the claim accrued, i.e., from the date when the copyright holder knew 28 or should have known of the infringement.” Id. at 1244. Either actual or constructive 2 Co., 971 F.3d 1042, 1047 (9th Cir. 2020). And as to constructive knowledge, suspicion of 3 copyright infringement requires the plaintiff to investigate further. See id. at 1047-48. 4 Plaintiffs had actual knowledge triggering the copyright statute of limitations when 5 they wrote in discovery responses in Pacific West Contractors (while represented by the 6 same attorney who represents them here) that, “as of August 12, 2019,” “the Kiley Ranch 7 Project in Sparks, Nevada” was infringing their copyrights. (ECF No. 43-4 at 7.) Indeed, 8 the same attorney who represents Plaintiffs in this case wrote in the next discovery 9 response, “[o]n March 26, 2019, Ted Erkan of Lew Communities advised the Plaintiffs 10 that the Defendants prepared design and construction documents for the Veteran’s 11 Parkway Project and the Kiley Ranch Project, utilizing the Burke B-Product and the Burke 12 Townhouse products.” (Id. at 7-8) This appears to concede that Plaintiffs were aware of 13 the potentially infringing nature of the Kiley Ranch Project before the August 2019 date. 14 Thus, Plaintiffs affirmatively contended that the Kiley Ranch Project was violating their 15 copyrights on August 12, 2019, at the latest. They had actual notice. 16 There is also an apparent contradiction between Burke Sr.’s declaration and his 17 counsel’s citation to it in opposition to the Motion regarding when and why Plaintiffs began 18 to suspect that the Kiley Ranch Project infringed their copyrights. Burke Sr. says, “[i]n 19 early March 2022, Burke Jr. and I happened to drive by the Kiley Ranch Project and noted 20 that it looked similar to their Harvest 2B design, specifically the foundations.” (ECF No. 21 55-1 (sealed) at 6.) His counsel, citing that declaration, says, “[t]he Burkes were diligent 22 in their investigative efforts and only gained knowledge of the Lewis Parties’ infringement 23 on March 10, 2022, when the Burkes received the permitted plans that were a direct copy 24 of the Burkes’ Harvest 2B design plans.” (ECF No. 54 at 9.) Happening to drive by and 25 receiving permitted plans are not the same thing. This contradiction renders Burke Sr.’s 26 assertion of this alternative date for actual notice unreasonable. See Villiarimo v. Aloha 27 Island Air, Inc., 281 F.3d 1054, 1065 n.10 (9th Cir. 2002) (“At summary judgment, this 28 2 reasonable ones.”) (citation omitted). 3 Burke Sr. otherwise attempts to render the discovery response from Pacific West 4 Contractors nondispositive by pointing to a statement included in his declaration 5 submitted along with his response to Defendants’ Motion that, “Burke Jr. and I reasonably 6 believed that, in light of the litigation against Pac West and IDBS, the Lewis Parties would 7 not willfully infringe on the Burke Designs.” (ECF No. 55-1 (sealed) at 5-6.) And Burke Sr. 8 otherwise supports his statement that he and Burke Jr. had no knowledge that 9 Defendants would use their designs “since Erkan was deposed on June 15, 2021, as part 10 of the Burkes’ case against Pac West.” (Id. at 5.) But these statements do not directly 11 contradict the discovery responses their attorney submitted on their behalf in Pacific West 12 Contractors that the same person (Erkan) told them back in March 2019 that Defendants 13 (or some related entities) were using their designs in the Kiley Ranch Project. Thus, 14 Burke, Sr.’s declaration does not create a genuine dispute of material fact as to whether 15 Plaintiffs had actual knowledge of the alleged infringement on August 12, 2019, at the 16 latest. 17 And even if it did, the same admission in the discovery response filed in Pacific 18 West Contractors put Plaintiffs on constructive notice also sufficient to trigger the three 19 year statute of limitations. (ECF No. 43-4 at 7-8 (stating they suspected the Kiley Ranch 20 Project infringed their copyrights).) ‘“[S]uspicion’ of copyright infringement ‘place[s] upon 21 [the plaintiff] a duty to investigate further into possible infringements of [its] copyrights.”’ 22 Oracle, 971 F.3d at 1048. Because Plaintiffs said they suspected the Kiley Ranch Project 23 violated their copyrights as of August 12, 2019, they had a duty to investigate further. See 24 id. It accordingly was not reasonable for Plaintiffs to decline to undertake any further 25 investigation until they happened to drive by a couple of years later. (ECF No. 55-1 26 (sealed) at 6.) “Although ‘summary judgment is generally an inappropriate way to decide 27 questions of reasonableness,’ it ‘is appropriate ‘when only one conclusion about the 28 conduct’s reasonableness is possible.’” Oracle, 971 F.3d at 1048. Such is the case here. 2 Burke Sr.’s declaration, Plaintiffs offer only one internally contradictory sentence to resist 3 the reasonable conclusion that Plaintiffs were required to further investigate infringement 4 at Kiley Ranch when they suspected it: “The Lewis Parties’ contention that the Burkes 5 failed to investigate their suspicion that the Burke Designs were being used on the Kiley 6 Ranch Project is belied by the fact that following the Pac West litigation, the Burkes had 7 no knowledge of the Lewis Parties’ design plans for the Kiley Ranch Project.” (Id. at 9.) 8 The latter half of this sentence does not refute the premise summarized in the former. 9 Said otherwise, this sentence simply does not address Plaintiffs’ duty to investigate 10 further—it instead merely concedes that they did not. Plaintiffs accordingly do not 11 genuinely dispute that they failed to discharge their duty to investigate suspected 12 copyright infringement back in 2019. 13 In sum, Plaintiffs had at least constructive knowledge sufficient to trigger the 14 copyright statute of limitations as of August 12, 2019. (ECF No. 43-4 at 7-8.) Plaintiffs did 15 not file this case until May 3, 2023. (ECF No. 1.) That is more than 3 years. Plaintiffs’ 16 copyright infringement claim is accordingly time barred. See Starz, 39 F.4th at 1239 17 (restating that the limitations period is three years). 18 2. Laches 19 In addition, and alternatively, Defendants contend both of Plaintiffs’ claims are 20 barred by the equitable doctrine of laches. (ECF No. 39 at 18-19.) Plaintiffs rely on the 21 same date the Court rejected above as to the statute of limitations argument (when they 22 drove by the Kiley Ranch Project) to argue they did not unreasonably delay in filing this 23 case and otherwise counter that Defendants have insufficiently established prejudice 24 resulting from Plaintiffs’ delay. (ECF No. 54 at 11-12.) The Court agrees with Defendants 25 that both of Plaintiffs’ claims are alternatively barred by the equitable doctrine of laches, 26 so Defendants are entitled to summary judgment on both claims. 27 “Laches is an equitable defense that prevents a plaintiff, who ‘with full knowledge 28 of the facts, acquiesces in a transaction and sleeps upon his rights.’” Danjaq LLC v. Sony 2 (1) unreasonable delay by the plaintiff, causing; (2) prejudice to the defendant. See id. at 3 951. But laches may not be used as a complete bar to a copyright infringement suit— 4 unless extraordinary circumstances are present—if the plaintiff files suit within the 5 Copyright Act’s three-year statute of limitations. See Petrella v. Metro-Goldwyn-Mayer, 6 Inc., 572 U.S. 663, 686 (2014). 7 Petrella accordingly does not prohibit the Court from alternatively granting 8 Defendants summary judgment on Plaintiffs’ copyright infringement claim based on 9 laches because, as the Court held above as to the statute of limitations argument, 10 Plaintiffs waited for more than three years after they suspected that the Kiley Ranch 11 Project infringed their copyrights to file this action. See id. The Court accordingly analyzes 12 the two prongs of laches as presented in the Motion—and finds both are satisfied. 13 First, Plaintiffs unreasonably delayed in suing Defendants over the Kiley Ranch 14 Project. As the Court found above, Plaintiffs contended that the Kiley Ranch Project 15 infringed their copyrights on August 12, 2019, at the latest, yet Plaintiffs waited until May 16 3, 2023, to file this case. The Court accordingly rejects Plaintiffs’ corresponding argument 17 that they did not delay because they only discovered the infringement when they drove 18 by the Kiley Ranch apartments on March 10, 2022. (ECF No. 54 at 11.) That argument is 19 insufficiently supported and unpersuasive for the reasons provided above in the statute 20 of limitations section. Moreover, Plaintiff’s lawsuit against PacWest did not “stop the clock” 21 on laches, see Danjaq, 263 F.3d at 953, and instead illustrates the unreasonableness of 22 Plaintiff’s delay. Plaintiffs contended Kiley Ranch was infringing, so why did they not sue 23 the developer they were aware was building it at the time when they sued other 24 defendants over the same project? (ECF No. 40-4 at 16 (agreeing that this lawsuit 25 accuses Defendants’ Kiley Ranch Project of infringing his copyrights), 52 (explaining that 26 he was one of the owners of PacWest, and PacWest contracted with Lewis to build the 27 Kiley Ranch Project).) Again, and as explained above, Plaintiffs have no reasonable 28 explanation. 2 reasonably explain in their Motion that they would have paused development on the Kiley 3 Ranch Project if they had been aware of Plaintiffs’ claims and resolved them before 4 investing significant sums of money in the project. (ECF No. 39 at 19.) Plaintiffs 5 unpersuasively attempt to dismiss this proffered prejudice by calling it self-serving, but do 6 not attack its logic. Indeed, Petrella described a Sixth Circuit case with analogous facts 7 as an example of the sort of extraordinary circumstances under which a court could 8 permissibly apply the doctrine of laches even if the plaintiff had filed suit within the three- 9 year statute of limitations. See Petrella, 572 U.S. at 685-86. The Petrella court described 10 the Sixth Circuit’s affirmance of the district court’s judgment that the plaintiff would not be 11 entitled to knock the allegedly infringing apartment building down because, “the plaintiffs 12 knew of the defendants’ construction plans before the defendants broke ground, yet failed 13 to take readily available measures to stop the project; and the requested relief would ‘work 14 an unjust hardship’ upon the defendants and innocent third parties.” Id. at 686. Said 15 otherwise, Petrella took it as a given that waiting for years while the defendants built the 16 apartment building would prejudice the defendants. The Court rules similarly here. 17 Plaintiffs’ delay prejudiced Defendants because they must now defend against this lawsuit 18 regarding building plans after the building is under construction. And indeed, Plaintiffs 19 waited more than three years, which is longer than in the Sixth Circuit case described in 20 Petrella and outside the statute of limitations period. 21 In sum, the doctrine of laches alternatively bars Plaintiffs’ copyright infringement 22 claim under the circumstances present here. In addition, laches can also bar an unjust 23 enrichment claim. See Paskvan v. Klier, No. 2:08-CV-01144-KJD, 2011 WL 1131296, at 24 *4 (D. Nev. Mar. 24, 2011); Dam v. Gen. Elec. Co., 265 F.2d 612, 614 (9th Cir. 1958) 25 (affirming the application of laches to bar an unjust enrichment claim). For the same 26 reasons that laches bars Plaintiffs’ copyright infringement claim against Defendants—as 27 analyzed above—it also bars Plaintiffs’ unjust enrichment claim against Defendants. The 28 application of the laches doctrine accordingly supplies one, alternative basis for the 2 claims against Defendants. 3 3. Master Consulting Agreement 4 Defendants otherwise argue the MCA between Lewis and PacWest means they 5 are entitled to summary judgment on both of Plaintiffs’ claims because it is the written 6 agreement governing the pertinent relationship—precluding an unjust enrichment claim— 7 and a key term in the MCA assigns ownership of the Kiley Ranch Project plans and any 8 corresponding intangible property rights to Lewis. (ECF No. 39 at 19-21.) Plaintiffs point 9 to various other agreements in response to these arguments, but none of them create a 10 genuine dispute of material fact. (ECF No. 54 at 10-11, 12-13.) The Court first explains 11 why its interpretation of the MCA provides another, alternative basis for the Court’s finding 12 that Defendants are entitled to summary judgment on Plaintiffs’ copyright infringement 13 claim, and then moves on to its impact on Plaintiffs’ unjust enrichment claim. 14 a. Copyright Infringement 15 The relationship between Lewis and PacWest is governed by the MCA. (ECF Nos. 16 49-1 (sealed) at 4, 40-4 at 54 (describing the MCA as the ‘original agreement’ between 17 PacWest and Lewis).) Burke Sr. was one of the owners of PacWest and worked with 18 Lewis through the MCA. (ECF No. 40-4 at 52 (explaining that he was one of the owners 19 of PacWest, and PacWest contracted with Lewis to build the Kiley Ranch Project).) It is 20 further undisputed that the MCA provides that Lewis owned any plans prepared by 21 PacWest and any corresponding intangible property. (ECF No. 49-3 (sealed) at 7-8 22 (ownership clause), 12 (signed by Erkan and Pennington), 49-1 at 4-5 (swearing that the 23 MCA gave Lewis ownership over plans and corresponding intangible property in clause 24 16 and was not superseded by other agreements between the parties), 40-4 at 54 (“[T]he 25 original consultant agreement gave Lewis ownership of the plans.”).) Intangible property 26 rights in architectural plans logically include copyrights in those plans. See Sierra Club 27 Inc. v. Comm’r, 86 F.3d 1526, 1531 (9th Cir. 1996) (describing copyright as an example 28 of an intangible property right). Defendants accordingly cannot be infringing Plaintiffs’ 2 MCA gives Defendants a right to use them, along with ownership of any corresponding 3 copyrights. (ECF No. 49-3 (sealed) at 7-8.) 4 Plaintiffs attempt to resist this conclusion by pointing to various other agreements 5 between Lewis and PacWest, but the only agreement the parties proffer that relates to 6 the Kiley Ranch Project does not purport to supersede clause 16 of the MCA giving Lewis 7 ownership of any plans PacWest produced for Lewis. (ECF No. 49-9 (sealed); see also 8 id. at 2 (“Kiley Village 20” located at “SW Corner Kiley Parkway and Windmill Farms 9 Parkway” in Sparks); see ECF No. 49-1 at 5 (“On December 27, 2018, Lewis entered into 10 a Consultant Work Agreement with Pac West relating to the Kiley Ranch Project, which 11 incorporated the terms and conditions of the MCA, including the provision expressly 12 granting Lewis ownership rights to the plans.”).) 13 The other agreements Plaintiffs identify in response to the Motion do not concern 14 the Kiley Ranch Project and thus do not somehow override the MCA as to Kiley Ranch. 15 The addendum Plaintiffs identify (ECF No. 54 at 12 (referring to Exhibit U)) relates to a 16 job identified in the addendum as, “70030180 Double R” (ECF No. 42-8 at 2). The 17 conclusion that this addendum only modified the parties’ agreement as to the Double R 18 project is consistent with Erkan’s declaration, where he states, “[e]ach project would have 19 a work agreement that applied to that particular project and referred to the MCA.” (ECF 20 No. 49-1 at 4.) Plaintiffs also mention a work agreement attached as exhibit T to the 21 Motion (ECF No. 54 at 12), but that agreement also relates to, “70030180 Double R” (ECF 22 No. 49-4 (sealed) at 2), not Kiley Ranch. Moreover, at his deposition, Burke Sr. described 23 Double R as a distinct project from the Kiley Ranch Project. (ECF No. 40-4 at 32, 54-55.) 24 The Court accordingly does not find that agreements about the Double R project would 25 modify the MCA as to the Kiley Ranch Project. 26 Plaintiffs otherwise point to exhibits C and E, but the agreements they are 27 describing do not appear to be exhibits C and E to the Motion. (ECF No. 54 at 12; see 28 also ECF Nos. 40-3, 40-5.) The Court accordingly infers Plaintiffs are referring to exhibits 2 Pacific West Design Build Services, LLC and Pioneer Parkway Apartments II, LLC, which 3 applies to a property located in “a portion of Parcel 2 of Parcel Map 5222, recorded as 4 File No. 4565232 in the Office of the Washoe County Recorder, State of Nevada, on 5 March 1, 2016.” (ECF No. 55-3 (sealed) at 2, 6.) The Court searched for File No. 456232 6 on the website of the office of the Washoe County Recorder and takes judicial notice of 7 the fact that it does not relate to the Kiley Ranch Project—it describes a site in South 8 Reno off Veterans Parkway. See Washoe County Recorder, Document Search and 9 Copies (Last Accessed Feb. 5, 2025), 10 https://icris.washoecounty.us/ssrecorder/document/DOC905S725?search=DOCSEARC 11 H1503S1. See also Maxfield v. IndyMac Mortg. Servs., 700 F. App’x 731, 731 (9th Cir. 12 2017) (“The district court did not abuse its discretion in taking judicial notice of documents 13 filed with the county recorder’s office.”). And the agreement filed as exhibit E to Plaintiffs’ 14 response is between Lewis Management Corp. and two entities with Pacific West in their 15 name, not any of the entities that are Plaintiffs or Defendants in this case. (ECF No. 55-5 16 (sealed).) The Court accordingly does not find that agreement could have impacted 17 ownership over the plans used for the Kiley Ranch Project, particularly considering that 18 there are agreements governing that project and described above—the MCA and the 19 addendum to it that specifically listed Kiley Ranch as the project it applied to. 20 Plaintiffs finally point to Burke Sr.’s declaration filed with Plaintiffs’ response to the 21 Motion in which he asserts, “[i]t was never my intent to sell ownership of the Burke 22 Designs (including adaptive or derivative works, i.e. the Harvest 2B plans) to Lewis.” (ECF 23 No. 54 at 13; see also ECF No. 55-1 (sealed) at 6 (including the quoted language).) But 24 Burke Sr. otherwise testified at his deposition that William Pennington was another 25 member of PacWest, and Burke Sr. was aware that Pennington gave ownership of the 26 plans to Lewis in the MCA. (ECF No. 40-4 at 54.) Burke Sr.’s intent is accordingly 27 immaterial because Pennington could bargain away the rights that he apparently did, and 28 Burke Sr. was aware that he did (acknowledging, of course, that Burke Sr. viewed it as 2 (“Any Person dealing with the Company may rely upon any instrument executed by any 3 one (1) of the Managers without inquiring into the approval of the transaction pursuant to 4 Section 11.1 and elsewhere in this Agreement.”).) In plain English, and from Plaintiffs’ 5 perspective, Pennington made a bad deal on Plaintiffs’ behalf. Plaintiffs’ remedy—which 6 they availed themselves of to some extent in Pacific West Contractors—is against 7 Pennington and PacWest, not against Defendants. 8 In sum, Plaintiffs cannot prevail against Defendants for copyright infringement 9 because the MCA gave Lewis ownership over the plans PacWest prepared for the Kiley 10 Ranch Project along with corresponding intangible property. Defendants are accordingly 11 entitled to summary judgment on Plaintiffs’ copyright infringement claim for this alternative 12 reason as well. 13 b. Unjust Enrichment 14 And because the MCA exists, Defendants are also entitled to summary judgment 15 on Plaintiffs’ unjust enrichment claim. “An action based on a theory of unjust enrichment 16 is not available when there is an express, written contract, because no agreement can be 17 implied when there is an express agreement.” Leasepartners Corp. v. Robert L. Brooks 18 Tr. Dated Nov. 12, 1975, 942 P.2d 182, 187 (Nev. 1997) (citation omitted). The MCA is 19 the written, express agreement that governs the relationship between the parties. Indeed, 20 the Nevada Supreme Court has even held that a written agreement between parties to 21 an agreement regarding a construction project barred an unjust enrichment claim against 22 the ultimate property owner even though the property owner was not a party to the 23 contract. See Korte Constr. Co. v. State on Rel. of Bd. of Regents of Nevada Sys. of 24 Higher Educ., 492 P.3d 540, 544 (Nev. 2021). Thus, the MCA bars Plaintiffs’ unjust 25 enrichment claims against all Defendants. 26 4. Defendants’ Counterclaims 27 As noted at the outset, Defendants counterclaimed that Plaintiffs’ copyrights are 28 invalid and not infringed by Kiley Ranch. (ECF No. 11 at 8-11.) Defendants accordingly 2 39 at 27-28.) Plaintiffs counter by essentially incorporating by reference their arguments 3 resisting summary judgment. (ECF No. 54 at 19-20.) Because the Court reached the non- 4 infringement but not invalidity arguments above, the Court will grant Defendants a 5 corresponding declaratory judgment of non-infringement based on the ownership term in 6 the MCA. The Court accordingly grants in part, and denies in part, the portion of 7 Defendants’ Motion seeking summary judgment on their declaratory judgment claims. 8 IV. CONCLUSION 9 The Court notes that the parties made several arguments and cited to several 10 cases not discussed above. The Court has reviewed these arguments and cases and 11 determines that they do not warrant discussion as they do not affect the outcome of the 12 motions before the Court. 13 It is therefore ordered that Defendants’ motion for summary judgment (ECF No. 14 39) is mostly granted as specified herein. 15 It is further ordered that Defendants are entitled to summary judgment on Plaintiffs’ 16 copyright infringement and unjust enrichment claims. 17 It is further ordered that the Kiley Ranch Project in Sparks, Nevada does not 18 infringe Plaintiffs’ copyrights asserted in this case. 19 It is further ordered that Defendants’ motion to exclude expert testimony (ECF No. 20 28) is denied as moot. 21 It is further ordered that Defendants’ first motion to seal (ECF No. 33) is denied. 22 It is further ordered that Defendants’ second motion to seal (ECF No. 48) is granted 23 in part, and denied in part, as specified herein. 24 It is further ordered that Defendants’ third motion to seal (ECF No. 60) is granted 25 in part, and denied in part, as specified herein. 26 It is further ordered that Defendants must file an unsealed version of the MCA and 27 versions of its briefs that remove redactions of content excerpted from the MCA within 10 28 days. 1 It is further ordered that Plaintiffs must file a motion to seal within 10 days 2 || consistent with LR IA 10-5 and Kamakana, 447 F.3d at 1178-79, justifying the sealing 3 || decisions they already made. 4 It is further ordered that Plaintiffs must also file, under seal, an unredacted version 5 || of their response to the Motion at the same time as their motion to seal. 6 The Clerk of Court is directed to enter judgment accordingly—in Defendants’ 7 || favor—and close this case. 8 DATED THIS 5" Day of February 2025.

10 MIRANDA M. DU 11 UNITED STATES DISTRICT JUDGE 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17