would support their motion. Clearly, n more is required to ‘meet the movants’ burden on summary

judgment. Accordingly and for the reasons discussed above, the Court denies Defendants’

i
bi Vi

This Court had previously bifurcated discovery as to  ningement and damages. Because
"SRO aN aes an semeneantepeere bor
the Defendants, motion for summary judgment as to infingement is denied, the parties shall



had a license to develop the-land, such that Cambridge as-a-successor in interest, may have had a

license to develop the farm land pursuant to the Annexation Agreement. (Defs.’ LR 56.1(a)(3) J

undisputed that the parties to the Annexation Agreement included the

decided by the trier of fact.
nd, Defendants argue that they were entitled to use the plans at issue because the

: of the jend” when the village enacted Ordinance 1804, which authorized

ak aOR RIBS
ment, which itself included the Petmiay Plat and Landscape Plan as

's LR 56. 109) 1 60; an LR 56.1(b)(3)(B) {| 58.)

‘ ait iV
se affirmative defense warrants entry of summary judgment in their favor.

yee soy AEe



not make it clear to d gree the revised Preliminary Plat changed the original plan. The

Preliminary Landscape Plan, Preliminary Engineering, as well as the revised Preliminary Plat

were each approved by the Village board. (Id. 158.)

Ocean Atlantic, the Village, and th farmers entered into an annexation

agreement (“Annexation Agreement”) which incorporated the Preliminary Landscape Plan and

revised Preliminary Plat as exhibits. (dd. |59.) The version of the Preliminary Plat, which

shows only Lannert as its drafter, was based on the preliminary plat drafted by Roake for MAF.

(id. 461.)
At that time, the Village board adopted Ordinances 1804 and 1805. (id. $66.) Ordinance

1804 authorized th wage ? President and village to execute © the Annexation Agreement and

AREER SR RRR ji:
any annexation



: HON. RONALD A.
United States Judge

he

it

¢ Court had previously withheld its ruling on Plaintiff's objections to
brick’s prior exclusion of discovery as to profits as to the Liberty Grove site,
that the parties may conduct discovery as to profits as to that site pursuant to
§ 504(b), w which provides that “[t]he copyright owner is entitled to recover the actual
damages suffered by him or her as a result of the infringement, and any profits of the infringer
that are, attributable to the infringement and are not taken into account in computing the actual

’ adopts in full Magistrate Judge Bobrick’s rulings as to the interrogatories,
ect of a motion to compel and motion for protective order, to the extent that
tent with this Court’s holding, After examination of the objections, the Court



court held that the 2 farmers were entitled to terminate the agreement and, in



On June 7, 2001, approximately one month prior to Cambridge’s closing date, an
seetintatiohigiasines scabies:

pl f Cambridge's S surveyor, Midwest Technical Consultants (“MTC”), called Lannert

and J asked for a copy of the Preliminary Plat. (Pl.’s LR i 1(b)(3)(B) J 112.) J. Christopher
Lannert stated “as 4 is our ar normal process, we don’t give out our work. We don’t give copies of

plans to people who call without checking with o our [sic] owner.” (id. 116; see id. 9115.) J.
) ase
ed Ferg Ocean Atlantic’s president, who told him not to send
ae



development costs, Ary mold y Ocean Ail. Woodland Corp, 132F. Supp. 2d 662, 674 (N.D. II.

2001), aa, 284.F. 3d. at 709.

“On December 29, 2000, prior to Ocean Atlantic's s loss of any right to purchase the farm

land, Ocean Atlantic. ontrac purchaser” entered int al estate sales contract with

Cambri: ge, a 1 defendan in the instant case, to purchase wbstantial part of the farm land, i.e.,

380 of 681 lots. “Defs.’ LR 56.1(a)(3) J 102; Def.’ Ex. 31, Farmington Village Brochure.)

Further, ai tate agi cy’ s brochure for Farmington brad shows that Ocean Atlantic

(Wefs.” LR 56.1(a)3) 1 125.) When Ocean Atlantic failed to close on its purchase of the farm
land on. January 25, 2001, the Teal estate contract between Ocean Atlantic and Cambridge

terminated pursuant t t0 its terms. (Id. ¥ 106.)

In April 2001, a itl over a month after the district court had ruled that Ocean Atlantic
oe ;
had. lost any right to pusine the farm land, Cambridge entered a contract with the farmers to

purchase the farm land. Cd. 1 107.) In April or May 2001, Cambridge hired Cowhey, an

engineering and design fm, to prepare the civil engineering , plans for Cambridge’s residential

subdivision named Litery Grove. (PL.’s LR 56. 1C018)8) 1 108.) In May 2001, Cambridge

informed Cowhey 1 that the e project was subject to the Village's s Annexation Agreement. (Defs.’

YF es come be



PLE phe
‘Nevertheless, . . . Ocean Atlantic proceeded to serve the Sellers in

January 1999 with its now moot lawsuit for specific performance, Three months later, Ocean

Atlantic voluntarily dismissed its suit and dropped its demand for a price reduction.” Id.

“The parties subsequently agreed to a second extension of the contract, which pushed back the
initial date of closing to November 30, 1999.” Id.
In early November 1999, “Ocean Atlantic sought to delay the initial closing for a third

JR 56.1 487). On November 22, 1999, the farmers filed a federal suit

timer Id.; (see Defs,

against Ocean Atl tic “secking a declaratory judgment that the contract would be terminated if

the losing did not occur by November 30, 1999.” Arbol, 284 F.3d at 696; (see Defs.’ LR 56.1



ee a
doing so, held that the farmers suffered disproportionate. prejudice by Ocean Atlantic’s failure to

close by the drop-dead date of January 25, 2001, a material breach, although Ocean Atlantic

than Sellers? "default, as found by the Court, or Sellers’ failure to participate in or
ae cooperate as set forth herein, as found by the Court, Purchaser shall have no
mec to purchase or. otherwise encumber the Property or Homestead parcel, the

Id. at 667. The S Seventh Circuit affirmed and stated “it is, ithe unreasonable nor unfair for the
Sellers to avail themselves of any extent to which Ocean Atlantic’s $1.7 million expenditures

have improved the value.of the Sellers’ property.”. Arnhold, 284 F.3d at 707. It further stated,

that it is unfair for Ocean Atlantic to forfeit all rights to the property, while the
Sellers retain the sare property and all improvements thereto.” Jd. at 709.

_In the instant action, Ocean Atlantic has sued Defendants for copyright infringement,

unfair competi on, cptive trade te practices, false se designation of origin, conversion, and unjust



(10) preparation of utility design/layout and plans, including offsite and onsite
horizontal layout of storm sewer, offsite and onsite horizontal layout for
watermain, and offsite and onsite horizontal layout of sanitary;

(11) preparation of final utility design and plans, including offsite and onsite
sanitary, watermain and storm sewer with all sizes, locations, depths and services
_,teas, alo: ith, storm sewer tributary areas and sump pump connections;

(12) preparation of pavement design and plans, including a typical pavement
cross-section design, pavement thickness, and Route 126 geometry and cross-
7 Section; ’

(13) preparation of final pavement plans, including details of the Route 126 road
_dvidenin, S sections, and auger under IDOT road and tapering;

(14) preparation of street lighting and signage design and plans, including
locations, sizes, specification, type and number;

(15) preparation of construction standard details, including erosion controls, mass
gradin; derground; Pend. ny

At He ne
(16) preparation of numerous Village and State submissions for review, comment,
and approval;

Phas wey dnl
(17) additional final engineering, including plans for.an alternate lift station and
forcemain design for sanitary sewer outfall, design grading and utility plan for the
School Site and Sesign grading and utility Plan for the Swim Club.

(d.; Defs.’ "Ex, cheli Af. 6.) Cowhey’s work required hundreds of pages of civil

engineering drawin, s, in the form of plan segments, draft drawings, preliminary engineering

plans and final engineering plans. (Defs.’ Ex. 45, Micheli Aff. 115, 7.) Cambridge, Cowhey, an

ing and design firm, and Pugsley, a landscaping architect, completed the storm water

“ote ete

engi

pod
detention basin and sanitary sewer, water main and storm, sewer system, undertook grading of

at

streets, and began development of the school site? (Defi? “LR 56.1(a)(3) J 112.)

aise , . : ey

During thé ne of the instant litigation, the school was built and ready for the fall
2003 1 term. (Ua. 121), 5 tr”



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Naine of Assigned Jud Ror Sitting Judge if Other
venor Maglstrate Judge _Ronald A. Guzman than Assigned Judge
CASE NUMBER 02 C 2523 DATE 9/29/2004
CASE OCEAN ATLANTIC WOODLAND CORPORATION vs. DRH CAMBRIDGE
TITLE HOMES, INC., et al
[In the following box (a) indicate the party filing the motion, eg plant, defendant, drd pary plaintiff and (b) state briefly the nature
MOTION of the motion being presented.)

DOCKET ENTRY:

qd) Oo Filed motion of { use listing in “Motion” box above.]

(2) Oo Brief in support of motion due

(3) oO Answer brief to.motion due___. Reply to answer brief due_____.

(4) Oo Ruling/Hearingon__—_ssetfor_—at_.

(5) [| Status hearing set for 10/13/2004 at 9:30 A.M..

(6) Oo Pretrial conference[held/continued to] [set for/re-set for] on setfor sat.

(7) oO Trial[set for/re-set for]on__— at

(8) Oo (Bench/Jury trial] [Hearing] held/continued to sat

(9) a This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) OLocal Rule 41.1 CFRCP41(a)(1) CFRCP41(a)(2).

(10), Ml (Other docket entry] ENTER MEMORANDUM OPINION AND ORDER: The Court denies DRH
Cambridge Homes, Inc., Gundmundson, Leder, Ltd., and Pugsley & LaHaie, Ltd.’s joint motion for
summary judgment [doc. no. 134-1].

(11) Ml [For further detail see order attached to the original minute order. }

No notices required, advised in open court.

No notices required. umber of noi
uber of natices

Notices mailed by judge’s staff.

Notified counsel by telephone.

wv | Docketing to mail notices.
Mail AO 450 form.

Copy to judge/magistrate judge.

courtroom
ty’s
inal

Date/time received in

smaiting deputy initials

central Clerk's Office



—_ Qn February 21, 2002, Ocean Atlantic sent cease and desist letters to Cambridge and

Cowhey. (Pls LR 56.1(b)(3)(B) 153.) On February 25, 2002, Ocean Atlantic sent a cease and
ie cine Rod

98080004 and Farmington Village - Preliminary Engineering 5291P5 with the United States
Copyright Office. (Pls LR 56.1(6)(3)(B) § 155.) The Landscape Plan 98080004 copyright is
\d incorporated into the Annexation
? LR 56.1 re 49117.) The Farmington Village ~ Preliminary Engineering
5291PS copyright is for the Preliminary Engineering that was derived from the Preliminary Plat.

(a)

to: any material fact ‘and that the moving party is entitled to a a judgment as a matter of law.” FED.

R Civ. P. 56(6). A genuine issue of material fact exists for trial when, in viewing the record and



Cambridge instructed Pugsley, i its landscape architect, to prepare final

had drafted. Ud. 4132.) Pugsley was going to use Cowhey’s engineering plans and grading and

lans for the.base of its landscape plans. (Id. J 133.) Kyle Weber of Pugsley referenced

scaling the size and square footage of the sign and entry monument for Liberty Grove. (Id. 1}
136-37; Pl.’s Ex. 39, Weber Dep. at 84-85.)

r 14, 2001, Cambridge filed its Plane with the Village. (id. 147.) If

Cambridge did develop the farm land, it was obligated to. ‘take the necessary steps to develop it in
htm aa «feces
conformance with the Pein Plat and Landscape Plan attached to the Annexation

Agreement. (els. LR 56. 1016)1 120.) Mr. Terrance Burghard, the Village Administrator,
‘ aE

eens

ruary 8, 2002, Ocean Atlantic obtained th the alsin property rights and



Starting in May 2001, at the request of Cambridge, Cowhey performed site investigation,

site analysis, calenlations and plan and drawing Preparation, which necessitated Cowhey’s:

(1) obtaining permits for the development from the Environmental Protection
Agency, the Illinois Department of Natural Resources, the Illinois Historic

P Agency, the Illinois Department of sportation, and the Will
> Department; °

(2) conducting the initial site investigation and site research that included research
of soil conditions, site topography, floodplain/wetlands designations, Illinois
Department of Transportation requirements and Village of Plainfield ordinances
and requirements, offsite easements, existing utilities, existing sources of water
_and sewer, storm sewer alternates, storm sewer system outfall points and
alternates, and offsite watermain routing;

(3) attending various meetings with the Village of Plainfield and the Illinois
Department of Transportation;

(4) reviewing site geometry and development plats from survey (Midwest
~-Lechnic: Consultants);

(5) conducting a preliminary hydraulic analysis that included an analysis of
existing depressional areas, offsite tributary areas, 100 year flood routing,
cities, and drain tiles; :

(6) preparation of an existing and proposed model of. subsurface with offsite areas;

(6) preparation of final hydraulic design/drafting, including a detention basin
design and analysis, v volume calculations, release structures, and a 100 year flood

«! !
(7) preparation of a preliminary grading design a and plans, including centerline
grading, a soil erosion control plan and a preliminary earthwork analysis;

(8) preparation of a final grading design and plans,:including earthwork design,
complete lot grading (including rear yards), open space grading, street grading,
flood routing, driveway slopes, a and Route 126 toad widening and ditch

“grading

__(9) preparation of an erosion control design and plans, including stockpile
_locations, silt fence locations, seeding and blankets, s straw bales, and construction



Farmers entered into an agreement to sell the farm land to Ocean Atlantic. (Id. J 37.) Atsome

point in time, Ocean Atlantic stated that it intended to develop the farm land into a residential

armington Village.” (P1.’s LR 56. TOE) 4/4.) The agreement required

farm land into the Village prior to the closing date. (Det? LR 56.1(a)(3) ff] 41, 42.) The

farmers S gave 2 all a gineering, preliminary plats, soil tests, studies, and due diligence conduct by
MAF to Ocean Atlantic. (/d. 44.) Mr. Michael Ferraguto, president of Ocean Atlantic, does
not recall whether Ocean Atlantic was asked to reimburse MAF for any work Roake had done

prior to Roake’s retention by Ocean Atlantic. (Jd. 146.) Ocean Atlantic wanted to proceed with

a a plan similar to the MAF plan and wanted to take the MAF documents and start the ball rolling
” rei eA MRE Wy an

again. Cd. q 39.)

1 thay

cted new hearings reading th the ° farm land because the last step in the

'The November 15, 1997 closing date came and went, and because the parties realized
that they were not able to meet that deadline, the farmers later extended the initial closing
deadline. Arnhold v. Ocean Atl. Woodland Corp., 284 F.3d,693, 695-96 (7th Cir. 2002).

3

etl



“[T]he equitable defense of copyright misuse . . . has its historical roots in the unclean hands

defense id is a complete, bar to enforcement of one’s copyright.” gad Inc. v. ALN Assocs. Inc.,

SPS Techs., Inc,, 694 F-2d 505, 512 (7th Cir. 1982). “Itis .. . well settled that concerted and

ior th threatens competition is not immune from antitrust inquiry simply

yf

because it involves. the exercise of copyright Privileges ‘Data Gen. Corp. v. Grumman Sys.

athe



parcel of the farmland from Ocean Atlantic when the two parties entered a contract for 380 of

woeaged cma : een
the 681 lots, (Defs.” LR 56.1(a)(3) { 102; Defs.’ Ex. 31, Farmington Village Brochure). Further,

Ocean Atlantic may h have known as early as May 2001 that Cambridge was using the plans

because when Cambridge sought a full-sized copy of the plans i in May 2001 from Lannert,

sina Scanning.

Lannert, told Ocean. Adlantic about the request. (PL.’s s Ex. "3, Lannert Dep. at 125.) Thus, there is

: aya ones
pensating O an, Atlantic. (Pls LR 56. 1)GX8) 4100.) Third, Plaintiff argues

oes

‘gn j dy



purchase of the farm land. (Defs.’ LR 56.1(a)(3) ff 20, 22.)-MAF’s name for the proposed
development was “Sweetwood.” (/d. § 23.)
MAF made substantial progress toward its goal of having the Village annex the farm

land, ld 4 29.) The Village required a party petitioning for annexation to prepare and submit,

among other things, a Preliminary Plat showing the plans for such things as street locations, lot
configurations and relative lot sizes, and Preliminary Engineering showing such things as the
plans for locations of sanitary sewers, storm water drainage systems, and detention basins. (Id. {
16.)

MAF hired Roake & Associates (“Roake”), a land surveying and engineering firm, to

create a Preliminary Plat and Preliminary Engineering and to assist in the development efforts.

Seciisas ate aan wine

cect

(a 4 24. ) The Preliminary Plat and Preliminary Engineering were both submitted to the Village,

ye

and the Village Plann

ing commission recommended that the Village board approve them. (/d. J

30.) The farmers, Mar, and ‘the Village then entered into an annexation agreement, the terms of

which were agreed to by the he parties. Ud. 31.) However, the last required stage, board approval,
did not occur. (la. CF 30, 32; Defs. Ex. 15, Philipehuck Dep at 18-19.) MAF decided not to

pro ed with its acquisition nand development of the farm land (Defs.’ LR 56.1(a)(3) 32.)

MAF paid Roake in, full for all of the services it performed 0 on MAF’s behalf. (/d. 146.) Either

MAF 0 or t Roake ther provided copies of the Preliminary Plat t and Preliminary Engineering to the

Ree eae

owners to show that MAF or Roake had d pursued the project in in good faith and to allow the

seas
~In 1997, , within months after MAF and Roake’s collaboration of work had ended, the



NE gen

“IN THE UNITED STATES DISTRICT COURT
_FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DISTRICT

OCEAN ATLANTIC WOODLAND
CORPORATION, a Virginia Corporation,

Plaintiff,
Judge Ronald A. Guzman

HED
SEP 29 2004

Vv.

DRH CAMBRIDGE HOMES, INC.,

a California Corporation, COWHEY,
GUNDMUNDSON, LEDER, LTD., an Illinois
Corporation, and PUGSLEY & LAHAIE, LTD.,
an Illinois Corporation,

02 C 2523

ewe Seer

Defendants.

MEMORANDUM OPINION AND ORDER
RRR RRR MMRaRR SN joe 2

Ocean Atlantic Woodland Corporation (“Ocean Atlantic”) has sued DRH Cambridge

Homes, Ine. Cambridge”), Cowheys Gundmundson, Leder, Ltd. (“Cowhey”), and Pugsley &

LaHaie, Ltd (Pagstey” alegng copyright infringement, deceptive trade practices and consumer
fraud, ¢ conversion, false designation of origin, and unjust enrichment. Before the Court is

Defendants’ joint motion for summary judgment based on several affirmative defenses. For the

reasons s provided i in this Order, the Court denies Defendants’ summary judgment motion.

SSF ARRRERE ESE ND ARORYES

FACTS

The following facts are either undisputed or deemed admitted due to a party’s

will {County adjacent to the Village of Plainfield, Illinois (ithe Village”) entered into a contract

Be ees

with Mid-America Financial Development, Inc. CMAP, a residential developer, for the

oo ; = ep



(0986) For the purposes of summary judgment, the movant has the burden of proving that there

is no -gettuine inyegh pati fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

material issues of fact are disputed. It is “well-settled that a non-exclusive license is not a
transfer of ownership, and is not, therefore, subject to the writing requirement of [17 U.S.C.] §

149 F.3d 494, 500 (6th Cir. 1998). An implied nonexclusive license is

licensor) makes that pra work and delivers it to the licensee who requested it, and (3) the
"Rear neon | een thes
licensor-requestor intends that the licensee copy and distribute his work.” 1.A.E., Inc. v. Shaver,

eee se

1920. An express | one license may be granted orally or in

c a payment to Ocean Atlantic for the work Roake had performed for
: dit



46, Fetraguo Dep. at 19), i which Ocean Atlantic had- lost previously, Arnhold, 132 F.

ts rely ona laches defense. “{TJhe doctrine of laches . . . is ‘principally

@ is uneaonal and inexcusable, and ® materially prejudices the defendant.”

Se

ree
: i

2972, 1996 WL 332689, at 3 au D. Ill. Jun 13, 1996).

veiceweninivoeyinlaiipees +01 ; 15