1

12-1385-cv

Latimore v. NBC Universal Inc., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Thurgood Marshall United

3 States Courthouse, 40 Foley Square, in the City of New York,

on the 9th 4 day of January, two thousand thirteen.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROSEMARY S. POOLER,

9 DENNY CHIN,

10 Circuit Judges.

11

12 - - - - - - - - - - - - - - - - - - - -X

13 SONYA WHITTEN LATIMORE, 

14 Plaintiff-Appellant,

15

16 -v.- 12-1385-cv

17

18 NBC UNIVERSAL INC., REVEILLE, LLC, A

19 DELAWARE LIMITED LIABILITY COMPANY,

20 KIM FULLER, INDIVIDUALLY AND AS A

21 PARTNER OF MCCREARY & FULLER PUBLIC

22 RELATIONS CORPORATION,

23 Defendants-Appellees,

24

25 and

26

27 DOES, 1 THROUGH 50, INCLUSIVE, ANDREW

28 HILL, AN INDIVIDUAL, SHINE LIMITED,
2

1 AN ENTITY OF UNKNOWN ORIGIN,

2 TWENTIETH TELEVISION, INC., A

3 DELAWARE CORPORATION, DANIEL TIBBETS,

4 AN INDIVIDUAL, 25/7 PRODUCTIONS, LLP,

5 A DELAWARE LIMITED LIABILITY COMPANY,

6 BEN SILVERMAN, AN INDIVIDUAL, 3 BALL

7 PRODUCTIONS, INC., NBC UNIVERSAL

8 TELEVISION STUDIO, 

9 Defendants.

10

11 - - - - - - - - - - - - - - - - - - - -

12

13 FOR APPELLANT: B. Joseph Barrett, Barrett &

14 Winn, Esqs., Amityville, NY.

15

16 FOR APPELLEES: Alan Robert Friedman (Joel R.

17 Weiner, Katten Muchin Rosenman

18 LLP, Los Angeles CA, on the

19 brief), Katten Muchin Rosenman

20 LLP, New York, NY for appellees

21 NBC Universal Inc. and Reveille,

22 LLC.

23

24 Appeal from a order of the United States District Court

25 for the Southern District of New York (Hellerstein, J.).

26

27 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

28 AND DECREED that the judgment of the district court be

29 AFFIRMED. 

30

31 Sonya Whitten Latimore appeals from a order of the

32 United States District Court for the Southern District of

33 New York (Hellerstein, J.), denying her Rule 60(b) motion to

34 vacate the court’s judgment dismissing her complaint. We

35 assume the parties’ familiarity with the underlying facts,

36 the procedural history, and the issues presented for review.

37

38 Latimore argues for vacatur on the basis of Rule 60(b),

39 subsections (2), (3), and (6). Motions under subsections

40 (2) and (3) fail if the proffered evidence is irrelevant to

41 the ultimate outcome. See, e.g., United States v. Int'l

42 Bhd. of Teamsters, 247 F.3d 370, 392-95 (2d Cir. 2001)

43 (subsection (2)); Fleming v. N.Y. Univ., 865 F.2d 478, 485

44 (2d Cir. 1989) (subsection (3)). 

45
3

1 Latimore’s allegedly new evidence could not possibly

2 alter the outcome of the case. In the absence of direct

3 evidence of copying, a copyright infringement plaintiff must

4 show “(a) that the defendant had access to the copyrighted

5 work and (b) the substantial similarity of protectible

6 material in the two works.” Williams v. Crichton, 84 F.3d

7 581, 587 (2d Cir. 1996) (quotation omitted and emphasis

8 added). Thus, in the underlying merits case, Latimore had

9 to establish that (a) NBC had access to her Phat Farm

10 treatment, and (b) there was substantial similarity between

11 her Phat Farm treatment and The Biggest Loser production. 

12 This Court previously concluded that she failed to establish

13 either of those elements. See Latimore v. NBC Universal

14 Television Studio, 480 Fed. Appx. 649, 650 (2d Cir. May 23,

15 2012). The “new” evidence that Latimore presents in this

16 appeal pertains only to access and has no bearing on

17 substantial similarity. 

18

19 Latimore offers only the weakest of responses to this

20 defect. Citing no case law, she argues that “[s]ubstantial

21 [s]imilarity is a question for the jury.” But “[t]he

22 question of substantial similarity is by no means

23 exclusively reserved for resolution by a jury.” See Peter

24 F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d

25 57, 63 (2d Cir. 2010). She also argues that the allegedly

26 tainted evidence on the issue of access biased the district

27 court against her on the entirely separate question of

28 substantial similarity. She fails to appreciate that this

29 Court (i.e., not the district court) already reviewed the

30 similarity of the works de novo, finding none. See

31 Latimore, 480 Fed. Appx. at 651 (“Although both ideas take

32 advantage of staples of reality television such as team33 based competition, elimination, and communal living, the way

34 in which The Biggest Loser combines and supplements these

35 common elements results in a concept and overall feel that

36 is entirely different than Latimore’s proposal.”). 

37

38 Finally, a “Rule 60(b)(6) motion must be based upon

39 some reason other than those stated in clauses (1)-(5).” 

40 United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir.

41 2009) (citation omitted). Latimore’s Rule 60(b)(6) motion

42 is merely duplicative of her claims under subsections (2)

43 and (3) and must therefore be dismissed for the same

44 reasons.

45

46
4

1 Finding no merit in Latimore’s remaining arguments, we

2 hereby AFFIRM the judgment of the district court.

3

4

5 FOR THE COURT:

6 CATHERINE O’HAGAN WOLFE, CLERK

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