1 12-1385-cv Latimore v. NBC Universal Inc., et al.



### UNITED STATES COURT OF APPEALS **FOR THE SECOND CIRCUIT**



## SUMMARY ORDER

**R ULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT**  **. C**  **ITATION TO A SUMMARY ORDER FILED ON OR AFTER**  **J ANUARY**  **1, 2007,**  **IS PERMITTED AND IS GOVERNED BY F**  **EDERAL R** **ULE OF A** **PPELLATE P**  **ROCEDURE 32.1**  **AND THIS COURT ’**  **S L**  **OCAL R** **ULE 32.1.1.**  **W HEN CITING A SUMMARY ORDER IN A**  **DOCUMENT FILED WITH THIS COURT ,**  **A PARTY MUST CITE EITHER THE F**  **EDERAL A** **PPENDIX 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**  **. At a stated term of the United States Court of Appeals**  1 **for the Second Circuit, held at the Thurgood Marshall United** 2 **States Courthouse, 40 Foley Square, in the City of New York,** 3 **on the 9 th** **day of January, two thousand thirteen.** 4 5 **PRESENT: DENNIS JACOBS,** 6 **Chief Judge ,**  7 **ROSEMARY S. POOLER,** 8 **DENNY CHIN,** 9 **Circuit Judges**

**.** 10 11 - - - - - - - - - - - - - - - - - - - -X 12 **SONYA WHITTEN LATIMORE,** 13 **Plaintiff-Appellant ,**  14 15 **-v.- 12-1385-cv** 16 17 **NBC UNIVERSAL INC., REVEILLE, LLC, A** 18 **DELAWARE LIMITED LIABILITY COMPANY,** 19 **KIM FULLER, INDIVIDUALLY AND AS A** 20 **PARTNER OF MCCREARY & FULLER PUBLIC** 21 **RELATIONS CORPORATION,** 22 **Defendants-Appellees ,**  23 24 **and** 25 26 **DOES, 1 THROUGH 50, INCLUSIVE, ANDREW** 27 **HILL, AN INDIVIDUAL, SHINE LIMITED,** 282 **AN ENTITY OF UNKNOWN ORIGIN,** 1 **TWENTIETH TELEVISION, INC., A** 2 **DELAWARE CORPORATION, DANIEL TIBBETS,** 3 **AN INDIVIDUAL, 25/7 PRODUCTIONS, LLP,** 4 **A DELAWARE LIMITED LIABILITY COMPANY,** 5 **BEN SILVERMAN, AN INDIVIDUAL, 3 BALL** 6 **PRODUCTIONS, INC., NBC UNIVERSAL** 7 **TELEVISION STUDIO,** 8 **Defendants**

**.** 9 10

- - - - - - - - - - - - - - - - - - - - 11 12 **FOR APPELLANT:** B. Joseph Barrett, Barrett & 13 Winn, Esqs., Amityville, NY. 14 15 **FOR APPELLEES:** Alan Robert Friedman (Joel R. 16 Weiner, Katten Muchin Rosenman 17 LLP, Los Angeles CA, on the 18 brief ), Katten Muchin Rosenman 19 LLP, New York, NY forappellees 20 NBC Universal Inc. and Reveille, 21 LLC. 22 23 Appeal from a order of the United States District Court 24 for the Southern District of New York (Hellerstein, J. ). 25 26 **UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED** 27 **AND DECREED**that the judgment of the district court be 28 **AFFIRMED**

. 29 30 Sonya Whitten Latimore appeals from a order of the 31 United States District Court for the Southern District of 32 New York (Hellerstein, J. ), denying her Rule 60(b) motion to 33 vacate the court’s judgment dismissing her complaint. We 34 assume the parties’ familiarity with the underlying facts, 35 the procedural history, and the issues presented for review. 36 37 Latimore argues for vacatur on the basis of Rule 60(b), 38 subsections (2), (3), and (6). Motions under subsections 39 (2) and (3) fail if the proffered evidence is irrelevant to 40 the ultimate outcome. See, e.g. , United States v. Int'l 41 Bhd. of Teamsters , 247 F.3d 370, 392-95 (2d Cir. 2001) 42 (subsection (2)); Fleming v. N.Y. Univ. , 865 F.2d 478, 485 43 (2d Cir. 1989) (subsection (3)). 44 453 Latimore’s allegedly new evidence could not possibly 1 alter the outcome of the case. In the absence of direct 2 evidence of copying, a copyright infringement plaintiff must 3 show “(a) that the defendant had access to the copyrighted 4 work and(b) the substantial similarity of protectible 5 material in the two works.” Williams v. Crichton , 84 F.3d 6 581, 587 (2d Cir. 1996) (quotation omitted and emphasis 7 added). Thus, in the underlying merits case, Latimore had 8 to establish that (a) NBC had access to her Phat Farm 9 treatment, and(b) there was substantial similarity between 10 her Phat Farm treatment and The Biggest Loserproduction. 11 This Court previously concluded that she failed to establish 12 eitherof those elements

. See Latimore v. NBC Universal 13 Television Studio , 480 Fed. Appx. 649, 650 (2d Cir. May 23, 14 2012). The “new” evidence that Latimore presents in this 15 appeal pertains only to access and has no bearing on 16 substantial similarity. 17 18 Latimore offers only the weakest of responses to this 19 defect. Citing no case law, she argues that “[s]ubstantial 20 [s]imilarity is a question for the jury.” But “[t]he 21 question of substantial similarity is by no means 22 exclusively reserved for resolution by a jury.” See Peter 23 F. Gaito Architecture, LLC v. Simone Dev. Corp. , 602 F.3d 24 57, 63 (2d Cir. 2010). She also argues that the allegedly 25 tainted evidence on the issue of access biased the district 26 court against her on the entirely separate question of 27 substantial similarity. She fails to appreciate that this 28 Court (i.e. , not the district court) already reviewed the 29 similarity of the works de novo , finding none. See 30 Latimore , 480 Fed. Appx. at 651 (“Although both ideas take 31 advantage of staples of reality television such as team32 based competition, elimination, and communal living, the way 33 in which The Biggest Losercombines and supplements these 34 common elements results in a concept and overall feel that 35 is entirely different than Latimore’s proposal.”). 36 37 Finally, a “Rule 60(b)(6) motion must be based upon 38 some reason other than those stated in clauses (1)-(5).” 39 United Airlines, Inc. v. Brien , 588 F.3d 158, 175 (2d Cir. 40 2009) (citation omitted). Latimore’s Rule 60(b)(6) motion 41 is merely duplicative of her claims under subsections (2) 42 and (3) and must therefore be dismissed for the same 43

reasons. 44 45 464 Finding no merit in Latimore’s remaining arguments, we 1 hereby **AFFIRM** the judgment of the district court. 2 3 4 FOR THE COURT: 5 CATHERINE O’HAGAN WOLFE, CLERK 6 7