Opinion
Case No. 1:04CV00006PGC
May 17, 2004
ORDER DENYING ABBY WOLNEK'S MOTION TO DISMISS
This copyright action is before the court on defendant Abby Wolnek's motion to dismiss her as a party. Plaintiff Ivory Homes argues that the motion should be denied and also moves to exclude Ms. Wolnek's supporting affidavit. The court agrees and EXCLUDES Ms. Wolnek's affidavit and DENIES her motion to dismiss.
BACKGROUND
Plaintiff Ivory Homes, a Utah-based home builder and designer, developed and copyrighted a unique home design known as "Carrara." Ivory Homes alleges that Jason and Abby Wolnek, collectively referred to as "the Wolneks," obtained access to the Carrara plans, which they then unlawfully copied and subsequently employed in constructing a home in Bountiful, Utah. Ivory Homes further contends that the Wolneks' construction demonstrates a design, floor plan, and features that are substantially and unmistakably similar to the Carrara.
Ivory Homes filed a complaint seeking recovery for damages stemming from copyright infringement, as well an injunction against the continued construction of the Wolnek's project. Ms. Wolnek now moves to be dismissed from the action.
ANALYSIS
Dismissal is proper where a complaint "fail[s] to state a claim upon which relief can be granted." Dismissal is improper if the claimant can prove any set of facts supporting its claim that would entitle it to relief. To that end, an "affidavit cannot be treated, for purposes of the motion to dismiss, as proof contradictory to well-pleaded facts in the complaint." The court has full discretion in deciding whether to accept an affidavit that presents additional material offered in conjunction with a 12(b)(6) motion. Where the additional material is scanty, incomplete, or inconclusive, the court may reject it.
H.J. Inc. v. Northwestern Bell Tel. Co. 492 U.S. 229, 249 (1989).
Frederick Hart Co. v. Recordgraph Corp., 169 F.2d 580, 581 (3rd Cir. 1948).
7 Wright, Miller Kane, Federal Practice and Procedure: Civil 3d § 1366 (1998) (emphasis added).
Id.
Ms. Wolnek asserts in her motion to dismiss that no specific allegations have been made as to any conduct directly related to her. This assertion fails because plaintiff's allegations are made against both Abby and Jason Wolnek collectively, referring to them as "the Wolneks." The complaint alleges that the Wolneks copied the Carrara plans; that the Wolneks are constructing a home with a similar design; and that the acts of the Wolneks constitute a misuse, misappropriation, and theft of Ivory Homes' rights. Ivory Homes uses such language throughout the complaint without differentiating between Jason and Abby and consequently makes it abundantly clear that Ms. Wolnek is indeed implicated.
Compl. 2, ¶ 4.
Id., ¶¶ 12, 14 (emphasis added).
In her motion to dismiss, Ms. Wolnek does not challenge Ivory Homes' ability to prove any set of facts entitling it to relief. Rather, she merely supports her motion with an affidavit asserting that she "did not participate in any copying of any house plans or other material from Ivory Homes. As a factual matter, the affidavit is "scanty, incomplete, or inconclusive." As a legal matter, it does nothing more than deny the allegations in the complaint. Consequently, the affidavit fails to meaningfully contribute to Ms. Wolnek's motion and is appropriately excluded.
CONCLUSION
Accordingly, the motion to strike (#10-1) is GRANTED and the motion to dismiss (#4-1) is DENIED. In light of these actions, the motion to treat Ms. Wolnek's motion as a motion for summary judgment (#10-2) is also DENIED. Ms. Wolnek may renew her motion, if appropriate, when the facts and record of this case are more fully developed.
SO ORDERED.