Filed: Apr. 04, 2013
Latest Update: Mar. 28, 2017
Summary: 11-4701-cv XAC, LLC et al. v. Deep 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 ORD
Summary: 11-4701-cv XAC, LLC et al. v. Deep 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 ORDE..
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11-4701-cv
XAC, LLC et al. v. Deep
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 TO 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 for the Second Circuit, held at
2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 4th day of April, two thousand thirteen.
4
5 PRESENT:
6 BARRINGTON D. PARKER,
7 RAYMOND J. LOHIER, JR.,
8 SUSAN L. CARNEY,
9 Circuit Judges.
10 _____________________________________________
11
12 XAC, LLC, fka Amici LLC, XEROX CORPORATION,
13 Plaintiffs-Consolidated-
14 Defendants-Counter-
15 Defendants-Appellees,
16
17 iDEAL APPLICATIONS, LLC,
18
19 Consolidated-Defendant- 11-4701-cv
20 Appellee,
21
22 v.
23
24 JOHN A. DEEP,
25
26 Defendant-Consolidated-
27 Plaintiff-Counter-
28 Claimant-Appellant.
29 _____________________________________________
1 FOR APPELLANT: JOHN A. DEEP, pro se, Cohoes, NY.
2
3 FOR APPELLEES: CRAIG M. CRIST, Dreyer Boyajian LLP,
4 Albany, NY (William J. Dreyer, Dreyer
5 Boyajian LLP, Albany, NY; Gregory A.
6 Markel, Cadwalader, Wickersham & Taft
7 LLP, New York, NY, on the brief).
8
9 Appeal from a judgment of the United States District Court for the Northern District
10 of New York (Frederick J. Scullin, Jr., Judge).
11 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
12 AND DECREED that the judgment of the District Court is AFFIRMED.
13 Appellant John Deep appeals from the District Court’s judgment entered October
14 11, 2011. On appeal, Deep argues that he has a viable cause of action for copyright
15 infringement as the equitable or beneficial owner of the software at issue.1 He asserts that
16 the District Court erred by (1) dismissing his copyright claim and granting declaratory
17 relief to plaintiffs limiting his rights in the software at issue and (2) denying his motion
18 pursuant to Federal Rule of Civil Procedure 56(d)2 and his motion to strike certain portions
19 of and exhibits to the declarations of William J. Dreyer, counsel for appellees. We assume
20 the parties’ familiarity with the facts and record of the prior proceedings, to which we refer
21 only as necessary to explain our decision to affirm.
1
Deep does not challenge the District Court’s dismissal of his state law claims, nor
does he challenge its dismissal of his copyright claim under a theory of legal ownership.
2
Deep’s motion was brought pursuant to former Federal Rule of Civil Procedure
56(f). In 2010, subdivision 56(d) incorporated what had formerly been Rule 56(f) without
substantial change.
2
1 “We review an order granting summary judgment de novo, drawing all factual
2 inferences in favor of the non-moving party.” Viacom Int’l, Inc. v. YouTube, Inc., 676
3 F.3d 19, 30 (2d Cir. 2012). Summary judgment is appropriate if “there is no genuine
4 dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
5 Fed. R. Civ. P. 56(a). Because Deep is proceeding pro se, we liberally construe his
6 submissions on appeal, Ahlers v. Rabinowitz,
684 F.3d 53, 60 (2d Cir. 2012), but do not
7 afford the same latitude to the submissions of his former counsel to the District Court.
8 I. Copyright Claim
9 Deep argues on appeal that he is the equitable or beneficial owner of the software at
10 issue and is entitled to a constructive trust on the copyright because his former attorneys
11 committed legal malpractice by failing to protect his intellectual property. Appellees
12 argue that Deep failed to make this argument to the District Court and therefore cannot
13 raise it on appeal. Deep argues that he raised the issue to the District Court in his affidavit
14 in opposition to summary judgment and in connection with his motion to strike and for an
15 order to show cause. However, at oral argument on plaintiffs’ summary judgment motion,
16 when Deep’s attorney started to raise the issue, the District Court stated that the issue was
17 not before it and that Deep would have to litigate it through a malpractice action. Deep’s
18 attorney agreed. Accordingly, the issue of whether Deep is an equitable owner of the
19 software at issue and is entitled to a constructive trust on the copyright was not adequately
20
21
3
1 raised below. We therefore affirm the District Court’s decision with regard to Deep’s
2 copyright claim.3
3 II. Motions
4 We review the District Court’s denial of Deep’s Rule 56(d) motion for abuse of
5 discretion, Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003), and
6 will not disturb the District Court’s ruling on Deep’s motion to strike unless it was
7 “manifestly erroneous,” Hollander v. Am. Cyanamid Co.,
172 F.3d 192, 198 (2d Cir.
8 1999), abrogated on other grounds by Schnabel v. Abramson,
232 F.3d 83, 90 (2d Cir.
9 2000). We affirm the District Court’s denial of both of Deep’s motions. First, we have
10 already affirmed the District Court’s grant of appellees’ motion for summary judgment,
11 which raised issues that substantially overlapped with the issues raised in Deep’s Rule
12 56(d) motion. Second, by claiming only that the affidavit of opposing counsel was not
13 based on personal knowledge, Deep failed to show that the District Court’s denial of his
14 motion to strike was manifestly erroneous.
15
16
17
18
3
We note that the District Court did not include the scope of declaratory relief in its
judgment in favor of plaintiffs. We construe the applicable declaratory relief as set forth
in plaintiffs’ memorandum of law in support of their motion for summary judgment:
“Plaintiffs therein are not violating any copyright of Deep’s, and Deep has no claim under
any state law relating to the Subject Assets that is not preempted or barred by the applicable
statute of limitation.”
4
1 We have considered Deep’s remaining arguments and conclude that they are
2 without merit. For the foregoing reasons, the judgment of the District Court is
3 AFFIRMED.
4 FOR THE COURT:
5 Catherine O’Hagan Wolfe, Clerk
6
5
