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ROSNER v. CODATA CORP.

February 23, 1996

STEVEN ROSNER and HARVEY WACHTEL, Plaintiffs, against CODATA CORP., ZETECK CORP., BERTRAND DORFMAN, ARTHUR DORFMAN, and GEORGE FINN, Defendants.


The opinion of the court was delivered by: EDELSTEIN

 EDELSTEIN, District Judge:

 Pursuant to Federal Rule of Civil Procedure ("Rule") 56, plaintiff pro se Steven Rosner ("Rosner" or "plaintiff") and defendants have cross moved for summary judgment on plaintiff's claims of copyright infringement, fraud, conversion, unjust enrichment, and misappropriation of technology. Because this Court finds that each of plaintiff's claims is barred by the applicable statute of limitations, defendants' motions for summary judgment are granted. In addition, because this Court finds that genuine issues of material fact exist such that plaintiff is not entitled to a judgment as a matter of law on his summary-judgment motion, plaintiff's motion is denied.

 BACKGROUND

 Rosner brings various copyright and state-law tort claims based on defendants' allegedly improper appropriation of a computer program ("the computer program") and a computer user manual ("the user manual" or "the manual") that Rosner allegedly co-wrote with former plaintiff Harvey Wachtel in 1973 and 1974. On May 26, 1993, Magistrate Judge Nina Gershon signed an Order, dismissing this action as to Wachtel, including all claims and counterclaims. Accordingly, Wachtel no longer is a plaintiff.

 Rosner alleges that in 1973, he worked for the University Application Processing Center ("UAPC") of the City University of New York. (Amended Complaint P 9.) Rosner asserts that his responsibilities at UAPC included "the design, development, and operation of computer systems and associated software." Id.

 Plaintiff asserts that as part of his work on the fire-monitoring-system project, he "visited the offices of defendant Codata in Larchmont, New York from time to time during the course of the Project." Id. P 13. Plaintiff alleges that when he finished "the fire monitoring and control computer program . . . [he] spent several weeks at the facilities of defendant Codata performing extensive tests of plaintiffs' computer program on the corresponding computer hardware." Id.

 Plaintiff claims that "upon completion of plaintiffs' work pursuant to defendants' instructions, [Rosner and Wachtel] turned over their work product comprising the computer program, the user specifications manual and related documentation to defendants in or about April 1974." P 14. Plaintiff further asserts "upon information and belief" that the "Fire Monitoring and Control System, including plaintiffs' computer program, was installed in many office buildings in New York City and elsewhere, including without limitation, 529 Fifth Avenue, 666 Fifth Avenue, One Bankers Trust Plaza, and One New York Plaza, in New York City." Id. P 14.

 Plaintiff contends that "defendants falsely represented to plaintiffs that the aforesaid work requested of plaintiffs was in accordance with plaintiffs' obligations of employment at UAPC." Id. P 15. Plaintiff alleges that as a result of these misrepresentations, defendants obtained the computer program and user specification manual that plaintiff created, and defendants commercially exploited plaintiff's creations. Id. PP 14-17.

 In 1989, plaintiff filed both the computer program and the user manual with the United States Copyright Office. The computer program was assigned registration number TXu 389-102, and the effective date of the registration was October 16, 1989. *fn1" The user manual was assigned registration number TXu 388-472, and the effective date of the computer program's registration was October 12, 1989.

 Plaintiff filed suit in the United States District Court for the Southern District of New York on April 30, 1991, alleging eight causes of action. First, plaintiff alleges that defendants Codata Corporation ("Codata"), Zeteck Corporation ("Zeteck"), Bertrand Dorfman, and Arthur Dorfman infringed plaintiff's copyright of the computer program. Second, plaintiff claims that defendants Codata, Zeteck, Bertrand Dorfman, and Arthur Dorfman infringed plaintiff's copyright of the user manual. Third, plaintiff alleges that defendant Finn infringed plaintiff's copyright of the computer program. Fourth, plaintiff contends that Finn infringed plaintiff's copyright of the user manual. Fifth, plaintiff asserts that "defendants" defrauded plaintiff. Sixth, plaintiff alleges that "defendants" converted the computer program and the user manual that plaintiff created. Seventh, plaintiff contends that "defendants" have been unjustly enriched. Eighth, plaintiff brings a cause of action against "defendants" that is styled "Misappropriation of Technology." Plaintiff voluntarily dismissed the third, fourth, sixth and eighth causes of action that were brought against defendant Finn. Accordingly, plaintiff only seeks relief from Finn on the grounds of fraud and unjust enrichment.

 Defendants Codata, Zeteck, Bertrand Dorfman, and Arthur Dorfman largely deny plaintiff's allegations. Defendants' deny that Rosner "carried out assigned duties under the direct supervision and management of Arthur Dorfman at UAPC." (Answers by Defendants Codata Corporation, Zeteck Corporation, Bertrand Dorfman and Arthur Dorfman to Plaintiffs' Amended Complaint, and Codata Corporation's Counterclaims against Plaintiffs P 12.) These defendants further deny that Rosner holds a valid copyright to either the computer program or the user manual. Id. P 13.

 Defendant Codata also filed counterclaims against Rosner. Codata alleges that Rosner was "hired to render coding and computer programming services for use by Codata in a particular Codata fire monitoring and control system." Id. P 66. Codata asserts that "Codata developed and provided [Rosner] with data and information to enable [Rosner] to write and/or create coding and programming . . . based on said data and information" and that "Codata . . . exercised control and direction over the creation and development of said work." Id. PP 67-68. Codata claims that plaintiff was "fully paid" for his work. Id. P 70. Codata alleges that the computer program that the plaintiff registered with the United States Copyright Office is a work that was created by Rosner for Codata, and "which was derived from the data and information provided by Codata to [Rosner]." Id. P 72. Codata also maintains that Rosner had access to a fire-control-and-maintenance user manual that was "created by Codata" and that Rosner copied this manual and registered this manual with the United States Copyright Office. P 75-77. Codata claims that "the manual which is the subject of [registration number] TXU 388-472 . . . was copied, virtually in its entirety, from Codata's user manual." Id. P 77.

 Based on the facts alleged in its counterclaims, Codata brings two claims for relief. First, Codata seeks a declaratory judgment that Rosner is not the author of the computer program that is the subject of copyright registration number TXu 389-102 or the user manual that is the subject of copyright registration number TXu 388-472. Id. PP 81-84 & 16. Second, Codata asks this Court to cancel copyright registration number TXu 389-102 and copyright registration number TXu 388- [ILLEGIBLE TEXT]. Codata claims that in filing papers with the United States Copyright Office in which he claimed to be the author of the computer program and the user manual, Rosner "knowingly made materially false statements to the Copyright Office." Id. P 86. Codata asserts that because the Copyright Office relied upon these false statements in deciding to issue copyright registration numbers Txu 389-102 and TXu 388-472, this Court should cancel these copyrights.

 Defendant Finn--who did not join in the answer filed by the other defendants but rather filed a separate answer--also largely denies plaintiff's claims. Finn denies that he assigned Rosner to work on the fire-monitoring-and-control system with Arthur Dorfman. (Defendant George Finn's Answer ("Finn's Answer") P 5.) Finn further denies that defendants falsely represented to Rosner that Rosner should design the fire-monitoring-and-control system as part of Rosner's work at UAPC. Id. P 10. Finn also denies that defendants conspired to defraud Rosner and that defendants conspired to induce Rosner to create and deliver the computer program and the user manual. Id.

 Currently before the Court are the parties respective motions for summary judgment. Rosner moves for partial summary judgment regarding the copyright of the user manual, TXu 388-472. Rosner claims that he is entitled to a judgment that: (1) he owns the copyright to the user manual; (2) defendants Codata, Zeteck, Bertrand Dorfman, and Arthur Dorfman are not entitled to a declaratory judgment that Rosner does not hold a valid copyright to the user manual; (3) copyright TXu 388-472 should not be canceled; and (4) defendants Codata, Zeteck, Bertrand Dorfman, and Arthur Dorfman infringed Rosner's copyright of the user manual. (Memorandum of Law in Support of Plaintiff's Motion for Partial Summary Judgment ("Plaintiff's Summary Judgment Memo") at 4.)

 Defendant Finn also has moved for summary judgment. Like the other defendants, Finn argues that each of plaintiff's claims is barred by the applicable statute of limitations. (Defendant George Finn's Memorandum of Law in Support of His Motion for Summary Judgment ("Finn's Summary Judgment Memo") at 4-8.)

 DISCUSSION

 As an initial matter, it should be noted that plaintiff has proceeded in this litigation pro se. Courts in this circuit read papers submitted by a pro se litigant "liberally, and will interpret them to raise the strongest arguments that they suggest." Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) (citing Mikinberg v. Baltic S.S. Co., [ILLEGIBLE TEXT] 988 F.2d 327, 330 (2d Cir. 1993)).

 A party seeking summary judgment must demonstrate "that there is no genuine issue as to any material fact" such that it "is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir. 1986), cert. denied, 480 U.S. 932, 94 L. Ed. 2d 762, 107 S. Ct. 1570 (1987). The moving party has the initial burden of establishing the absence of a genuine issue of material fact. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970). In determining whether this burden has been met, however, "it has long been the rule that 'on summary judgment the inferences to be drawn from the underlying facts contained in [the moving party's] materials must be viewed in the light most favorable to the party opposing the motion.'" Lendino v. Trans Union Credit Info. Co., 970 F.2d 1110, 1112 (2d Cir. 1992) (quoting Adickes, 398 U.S. at 158-59). "In considering the motion, the court's responsibility is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight, 804 F.2d at 11 (citations omitted).

 If the movant demonstrates an absence of material facts such that he is entitled to a judgment as a matter of law, "summary judgment will be granted unless the party opposing the motion offers some competent evidence that could be presented at trial showing that there is a genuine issue as to a material fact." 10A Charles A. Wright et al., Federal Practice and procedure § 2727, at 143 (2d ed. 1983); see also Fed. R. Civ. P. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party's pleadings, but the adverse party's response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial."); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). This Court will deny summary judgment if the evidence supporting the non-moving party's case is sufficient to lead a rational trier of fact to return a verdict in his favor. National Union Fire Ins. Co. v. Walton Ins. Ltd., 696 F. Supp. 897, 900 (S.D.N.Y. 1988).

 In the instant case, plaintiff moves for summary judgment on a number of issues regarding the user manual. Plaintiff seeks a judgment that he owns the manual and that defendants infringed his copyright of the manual. (Plaintiff's Summary Judgment Memo at 4.) Moreover, plaintiff seeks a judgment denying defendants' counterclaims for a declaration that plaintiff does not hold a valid copyright for the manual and for cancellation of plaintiff's copyright. Id.

 Defendants Codata, Zeteck, Bertrand Dorfman, and Arthur Dorfman contend that the applicable statute of limitations bars each of the claims that plaintiff has brought against them. Similarly, defendant Finn asserts that the each of the claims that plaintiff has brought against him are barred by the applicable statute of limitations.

 In the interests of clarity, this [ILLEGIBLE TEXT] will first examine defendants' arguments that the applica[ILLEGIBLE TEXT] statutes of limitations bar all of plaintiff's claims. Next, this Court ...


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