Free Statement - District Court of Arizona - Arizona

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Dow Glenn Ostlund, Esq. State Bar No. 002909
THIRD FLOOR CAMELBACK ESPLANADE II 2525 EAST CAMELBACK ROAD PHOENIX, ARIZONA 85016B4237 TELEPHONE: (602) 255-6000 FACSIMILE: (602) 255-0103

Attorneys for Tegan Communities, Inc., American West Communities, LLC and Andrew Welch

UNITED STATES DISTRICT COURT
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DISTRICT OF ARIZONA
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Humphreys & Partners Architects, L.P.,
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Plaintiff, No. CIV 03-0169 PHX SMM vs. George F. Tibsherany, Inc.; et al., Defendants. ________________________________________ Tegan Communities, Inc.; American West Communities, L.L.C. and Andrew Welch, Crossclaimants, vs. George F. Tibsherany, Inc.; George F. Tibsherany, Crossdefendants. TEGAN DEFENDANTS' REPLY RE: PLAINTIFF'S STATEMENT OF FACTS IN OPPOSITION TO DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT

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Pursuant to FRCP, Rule 56(c) and Local Rule 56.1, and as HPA's Statement of Facts in opposition to the Tegan Defendants' Statement of Facts does not clearly state in all instances which of the Tegan Facts HPA is accepting and which it is opposing, the Tegan Defendants' Reply to Plaintiff's Statement of Facts as follows:

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HPA's Position On Tegan's Statement of Facts: 1. 2. It appears that Plaintiff does not dispute this fact. It appears that Plaintiff does not dispute this fact, but that Plaintiff seeks to

clarify this fact insofar as the timing of the construction and/or completion of the Cambria Project is concerned, in relation to the commencement of the Augusta Ranch Project. Plaintiff does not dispute this fact insofar as GFT's act of copying HPA's

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copyrighted materials with respect to the Cambria design and drawing preparation is concerned. For purposes of this Motion, Tegan accepts Plaintiff's clarification (HPA's Statement of Facts at Paragraphs 2, 3 and 4 -- hereafter HPA's SOF at ¶_____). 3. Plaintiff does not contest the claim that none of the Tegan Defendants had

any right or ability to supervise or control the GFT Defendants with respect to the alleged Cambria infringement activities, or that Tegan was not incorporated until March 31, 2000.

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4.

HPA disputes that all of GFT's infringing activities in connection with the

Cambria Project had been completed before the Augusta Ranch Project was begun (HPA's SOF at ¶5). However, HPA's SOF does not identify any act of infringement committed by GFT in connection with the Cambria Project that was still ongoing when GFT first began working on the Augusta Ranch Project. Nevertheless, for purposes of

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this Motion only, the Tegan Defendants will accept HPA's unsupported claim that GFT was somehow still committing acts infringing HPA's copyright protected works with respect to the Cambria Project when GFT began working with AWC in connection with the early stages of the Augusta Ranch Project. Tegan notes that HPA's disputation does

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not allege that AWC, Welch or Tegan had any right at any time to supervise or control GFT with respect to any of GFT's infringing activities at any time with respect to the Cambria Project. 5. 6. HPA does not dispute this Statement (HPA's SOF at ¶9). HPA does not dispute this Statement by Tegan, but does dispute GFT's

claim that the Augusta Ranch drawings are GFT's original work product (HPA's SOF at
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¶10). 7. ¶11). Although HPA's SOF at ¶11, Pg. 7:11 says HPA disputes all of ¶7 of Tegan's Statement of Fact No. 7, it is clear from a reading of the entirety of HPA's Statements that HPA really does not dispute all of Tegan's Statement No. 7. HPA does not dispute AWC's original involvement in the Augusta Ranch Project or that AWC assigned its It does not appear that HPA really disputes all of this fact (HPA's SOF at

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interest in the Augusta Ranch Project to Tegan. Nor does HPA dispute that AWC received nothing of value from Tegan in exchange for that Assignment and HPA has offered no evidence to support a dispute of any of these facts. HPA does dispute the immateriality of when the timing of when the assignment from AWC to Tegan occurred (early in 2000 as Tegan claims or later that year as some administrative records might indicate -- HPA's SOF, ¶s 6 and 7).
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HPA's SOF at ¶12 at Pg. 8:1-2 referring to the assignment (" . . . and that he did not recall that there was an assignment") is a material misstatement of ACW and Tegan's 30(b)(6) actual testimony. The complete question and answer testimony is: Q: I believe there is an interrogatory answer that's been made that the idea for this project was assigned from American West Communities to Tegan Communities; is that true? Yes. Was that done in a formal assignment that was a written document? I really don't remember anymore. Probably, but I don't recall. Did Tegan Communities give anything of value to American West Communities in exchange for that assignment? No.

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A: Q: A: Q:

A:

(30)(b)(6) deposition of Tegan and AWC at 24:4-6, part of Exhibit 5 to Tegan's SOF. Further, HPA disputes SOF No. 7 that "AWC has received no money from Tegan for any reason associated with the design of the Augusta Ranch Project" only to the

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extent that HPA believes that the $25,000.00 AWC received for work it did for Tegan as the Property Manager of Augusta Ranch is, in HPA's mind, monies received from Tegan which are associated with the design of the Augusta Ranch Project (HPA's SOF at ¶13). 8. 9. HPA does not dispute this SOF (HPA's SOF at ¶14). HPA does not dispute this fact insofar as Welch's receipt of salary is

concerned or that he is a nominal creditor of Tegan. HPA does dispute/claim that salary
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payments and/or loan payments, if any, are evidence of "profits" under 17 USC §504(b) (HPA's SOF at ¶15).

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10.

HPA does not dispute the first portion of this SOF, but claims that all such

profits are subject to its claim in this action as they are, in Plaintiff's mind, attributable only to the alleged infringements (HPA's SOF ¶16). 11. HPA disputes this fact (HPA's SOF at ¶17). HPA does not dispute this Statement and in Paragraph 11 of its SOF, HPA

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12. admits that:

For purposes of this Motion, HPA does not dispute that no one associated with GFT ever admitted to the Tegan Defendants that the GFT work on Augusta Ranch infringed HPA's copyrights. Tegan Defendants' Position With Respect To HPA's New Statements (Using HPA's Paragraph Numbering System). 1. HPA does not identify which drawings of which parts of the Augusta

Ranch Project prepared by GFT are infringements. Nor does HPA identify which building(s) at Augusta Ranch it claims are infringements of its protected copyrights, as HPA merely claims global infringement of its copyright protections in connection with

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the Augusta Ranch Project with out giving any specific information about the alleged infringement. While, for purposes of this Motion for Partial Summary Judgment Re: Vicarious Liability, Tegan has conceded that GFT's work for Tegan with respect to the Augusta Ranch Project included infringements, Tegan does not concede thereby that all of GFT's drawings and/or all of GFT's work with respect to the Augusta Ranch is an infringement of HPA's copyrights.

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For example, the Court is requested to examine the following documents: HPA's SOF Exhibit 7 at Pg. GFT01329 - the Minnezona Project footprint. HPA's SOF Exhibit 9 at Pg. GFT01361 - the Cambria Project footprint.
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HPA's SOF Exhibit 14 at Pg. GFT02568/GFT02583 - the Augusta Ranch Project footprint. HPA's SOF Exhibit 19 at Pg. HPA001778 through 83 - another Augusta Ranch Project footprint.

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These are drawings of the various overall project footprints involved in this case. Obviously these drawings violate no HPA copyright protections. HPA's SOF Exhibit 20 at Pg. HPA001761 - Augusta Ranch Recreation Building floor plan. Tegan's Exhibit 8 attached to this Reply (following the numbering system employed in the Tegan Defendants initial Statement of Facts), GFT00470 - The Cambria

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Recreation Building floor plan (a part of HPA's expert witness appraisal report for the Cambria Apartments, Mark Grumley, Appraiser). These two designs are not even remotely similar and neither the drawings nor the constructed buildings represent an infringement of HPA's copyright protections. HPA's SOF Exhibit 7 at Pg. GFT01330 ­ Minnezona building elevations; note the double and single garage doors prominently depicted in the left, front and right elevations.

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HPA's SOF, Exhibit 9 at GFT01370 ­ Cambria building elevations; note the double and single garage doors prominently depicted in the right, front and left elevations. HPA's SOF, Exhibit 19 at Pg. HPA001776, Augusta Ranch building elevations; note the total absence of any and all garage doors and/or garages in these elevations

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and/or buildings. No garages are depicted in these drawings, nor were garages constructed in these buildings. Simply stated, HPA's own evidence establishes that the Augusta Ranch Project is not a carbon copy of either the Minnezona Project or the Cambria Project. At a

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minimum, HPA's own evidence establishes major parts of the August Ranch Project/drawings unquestionably are not infringements of HPA's copyrights, but are GFT's original work product. 11. As Tegan's Motion for Partial Summary Judgment is addressed to HPA's

claim of vicarious liability of the Tegan Defendants for the alleged GFT infringements, and the vast majority of Paragraphs 11 and 16 deal with issues other than the vicarious

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liability claims, they are not relevant to this Motion for Partial Summary Judgment. Accordingly, the fact that Tegan controverts and does not accept these statements does not create a genuine or material issue of fact which would result in the denial of the instant Motion for Partial Summary Judgment. RESPECTFULLY SUBMITTED this 23rd day of May, 2006. TIFFANY & BOSCO, P.A.

By

Dow Glenn Ostlund Dow Glenn Ostlund, Esq. Third Floor Camelback Esplanade II 2525 East Camelback Road Phoenix, Arizona 85016-4237 Attorneys for Tegan Defendants

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X I hereby certify that on the 23rd day of May, 2006, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/ECF registrants: Kathleen L Beiermeister [email protected]; [email protected],[email protected] Mark A Bloomquist [email protected] [email protected],[email protected] Guy William Bluff [email protected] [email protected] Louis K Bonham [email protected] John D Everroad [email protected] [email protected]
Monty Lee Greek [email protected]; [email protected]

Ray Kendall Harris [email protected] [email protected] Christopher DC Hossack [email protected] [email protected] Edward Albert Kenney [email protected]
C. Mark Kittredge [email protected]; [email protected]; [email protected] Joseph E. Mais [email protected]; [email protected]; [email protected] Scott Sebastian Minder [email protected]; [email protected]; [email protected]

Joseph W Mott [email protected] [email protected] Jimmie W Pursell, Jr [email protected] [email protected],[email protected]
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Joseph A Schenk [email protected] [email protected],[email protected] Richard W Shapiro [email protected] [email protected] Deborah F Sirias [email protected] [email protected],[email protected] William C Steffin [email protected] [email protected],[email protected] Barry Harris Uhrman [email protected] [email protected],[email protected] Kurt M Zitzer [email protected] [email protected],[email protected] Patrick Zummo [email protected]; [email protected] I hereby certify that on the 23rd day of May, 2006, I served the attached X document by United States ail on the following, who are not registered participants of the CM/ECF System: Wayne Michael Flood Jennings Strouss & Salmon PLC Collier Ctr 201 E Washington, Ste 1100 Phoenix, AZ 85004-2385 Paul L Mitchell Mayer Brown Rowe & Maw LLP 700 Louisiana St, Ste 3600 Houston, TX 77002-2730 John Henri Toohey Bremer & Whyte 20320 SW Birch St 2nd Floor Newport Beach, CA 92660 By Donna Hamel Donna Hamel
9269.005/306373.doc

Case 2:03-cv-00169-SMM

Document 340 -9- Filed 05/23/2006

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