Robert Kubicek Architects & Associates Inc. v. Bosley , 642 F. App'x 709 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
MAR 11 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ROBERT KUBICEK ARCHITECTS & No. 14-15792
ASSOCIATES INCORPORATED, an
Arizona corporation, D.C. No. 2:11-cv-02112-FB
Plaintiff - Appellant,
MEMORANDUM*
v.
BRUCE C. BOSLEY; JOANNE M.
BOSLEY; BOSLEY GROUP
INCORPORATED, an Arizona
corporation,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Frederic Block, Senior District Judge, Presiding
Submitted December 9, 2015**
San Francisco, California
Before: KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 2
1. Witnesses testified that Bashas’ designed the initial floor and fixture
plans for each store and that Bashas’ exercised substantial control over the plans
throughout the design process. That testimony allowed the jury to infer that any
similarities between Bosley’s allegedly infringing plans and the plans of Robert
Kubiceck Architects & Associates, Inc. (“RKAA”) resulted from the fact that the
two companies shared a client that provided them with similar source material.
See Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002) (en banc)
(explaining that “we must draw all inferences in favor of” the prevailing party).
The jury thus reasonably could have concluded that Defendants didn’t copy any
original elements of RKAA’s plans. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,
499 U.S. 340, 361 (1991). Accordingly, RKAA wasn’t entitled to judgment as a
matter of law. Nor did the district court abuse its discretion in denying RKAA’s
motion for a new trial. See DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218 (9th
Cir. 2010).
2. Although RKAA obtained a pretrial order prohibiting mention of prior
litigation between RKAA and Defendants, one of RKAA’s witnesses, Kubicek,
nonetheless referred to a prior copyright infringement suit at trial. Because the jury
was aware of this prior suit, the district court acted within its discretion when it
page 3
allowed defense counsel to ask clarifying questions and refer to the parties’ prior
disputes in closing. See Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1012 (9th
Cir. 1999). Defense counsel also improperly referred to prior litigation between
the parties in his opening statement, but these and other such references had no
effect on the outcome of the trial. See McEuin v. Crown Equip. Corp., 328 F.3d
1028, 1032 (9th Cir. 2003) (as amended).
3. As the district court recognized, considerable testimony revealed that any
similarities between the parties’ plans resulted from the fact that both RKAA and
Bosley worked from Bashas’ source material. Thus, even if the district court erred
by admitting Defendants’ Exhibit C, the limited references to that exhibit during
trial didn’t prejudice RKAA. See Estate of Barabin v. AstenJohnson, Inc., 740
F.3d 457, 464 (9th Cir. 2014) (en banc); Pfingston v. Ronan Eng’g Co., 284 F.3d
999, 1005 (9th Cir. 2002).
4. RKAA’s motion to supplement the record with full-sized exhibits is
DENIED.
AFFIRMED.