Lindal Cedar Homes, Inc. v. Wilkinson

35 F. App'x 507

Opinion

MEMORANDUM

*

Lindal Cedar Homes, Inc. and Premier Home Design and Planning, Inc. (Lindal) appeal from summary judgment entered in favor of Kenneth and Lori Wilkinson. We reverse.

The undisputed facts on the record before this court¹ do not give rise to a nonexclusive implied license under Effects Associates, Inc. v. Cohen, 908 F.2d 555, 558-59 (9th Cir.1990). The Wilkinsons did not ask Lindal to create a plan or design for them, and Lindal did not do so. Nor does the consideration raise a reasonable inference that Lindal intended for the Wilkinsons to copy the expression in any of its works. Foad Consulting Group, Inc. v. Azzalino, 270 F.3d 821 (9th Cir.2001), does not suggest otherwise, for there is no extrinsic evidence, course of conduct, or custom and practice to consider on this record.

We decline to consider Lindal’s other theories for reversal or the Wilkinsons’ alternative grounds for affirmance, as they were not addressed by the district court and the record is not fully enough developed for appellate review. Singleton v. Wulff 428 U.S. 106, 120-21, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).

REVERSED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . We grant the Wilkinsons' motion to strike submissions made by Lindal on appeal that were not part of the summary judgment record before the district court.