BlackRock Engineers, Inc. v. Duke Energy Progress, LLC et al, No. 7:2015cv00250 - Document 246 (E.D.N.C. 2019)

Court Description: ORDER granting in part and denying in part 120 Motion for Partial Summary Judgment; granting in part and denying in part 132 Motion for Summary Judgment; granting in part and denying in part 161 Motion to Strike; denying 204 Motion to Str ike; granting 222 Motion for Extension of Time to File; denying as moot 224 Motion Adjudication of Motion to Strike regarding 204 MOTION to Strike Affidavit of Gary Ahlberg. Signed by District Judge James C. Dever III on 9/9/2019. (Sellers, N.)

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BlackRock Engineers, Inc. v. Duke Energy Progress, LLC et al Doc. 246 IN TIIE UNITED STATES DISTRICT COURT FOR TIIE EASTERN DISTRICT OF NORTH CAR.OLINA SOUTHERN DMSION No.. 7:15-CV-250-D BLACKROCK ENGINEERS, INC., ) ) Plaintiff, ) ) v. ) ORDER ) DUKE ENERGY PROGRESS, LLC, ) ) Defendant. ) On November 25, 2015, BlackRock Engiileers, Inc. ("BlackRock'' ~r ''plaintiff'') filed a corrected complaint against Duke Energy Progress, LLC ("Duke Energy'' or "defendant"), AMEC Foster Wheeler Environment & Infrastructure,. Ilic. ("AMEC")/. and .Charah, Inc. ("Charah.")2 alleging copyright infringement, breach of contract, unjust enrichment, conversion and misappropriation, common law unfair competition, trademark infringement under North Carolina law, and violation ofthe North Carolina Unfair and Deceptive Trade Practices Act (''UDTPA"), N.C. Gen. Stat. § 75-1 et~ [D.E. 5]. On December 14, 2017, Duke Energy filed an amended answer and asserted.acounterclaim against BlackRock for declaratory judgment that BlackRock committed fraud on the copyright office and that BlackRock' s copyrights are invalid, v~i4, or unenforceable based on BlackRock's fraud [D.E. 99]. On November 16, 2018, BlackRock moved for partial summary judgment [D.E. 120] and .. . . ' . ~ filed a memorandum in support [D.E. 121], a statement ofmaterial facts [D.E. 123], and an appendix [D.E.124, 131, 133, 136, 137]. OnDecember21,2018,DukeEnergyrespondedinopposition[D.E. 1 On December 18, 2018, BlackRock dismissed AMEC with prejudice [D.E. 175]. 2 On March 29, 2016, BlackRock voluntarily dismissed Charah without prejudice [D.E. 30]. Dockets.Justia.com 183] and responded to BlackRock's statement of material facts [D.E. 186]. On January 11, 2019, BlackRock replied [D.E. 198]. On November 16, 2018, Duke Energy moved for summary judgment [D.E. 132] and filed .. a memorandum in support [D.E. 134], a statement of material facts [D.E. 135], and an appendix [D.E. 138, 139--58]. On December 21, 2018, BlackRock responded in opposition [D.E. 180], filed exhibits [D.E. 181-82], responded to Duke Energy's statement ofmated.al facts [D.E. 184], and filed an appendix [D.E. 185, 187-90]. On January 11, 2019, Duke Energy replied [D.E. 199] and responded to BlackRock's statement of material facts [D.E. 200]. On November 16, 2018, Duke Energy moved to strike "all evidence" from BlackRock concerning Gary Ahlberg's ("Ahlberg'') damages calcrilation [D.E. 161] and filed a memorandum [D.E. 179]. On in support [D.E. 162]. On December 21, 2018, BlackRock responded . in opposition . . January 4, 2019, Duke Energy replied [D.E. 193]. . On February 26, 2019, Duke Energy moved to. strike Ahiberg's affidavit that BlackRock submitted in its response to Duke Energy's motion for summaryjudgment [D.E. 204], filed a memorandum in support [D.E. 205], and filed exhibits [D.E. 206:-i2]. On March 13, 2019, the parties jointly moved for extensions of time to file, which the court granted [D.E. 216]. On March 27, 2019, BlackRock moved for an additional extension of time to respond [D~E. 222]. On March 28, 2019, Duke Energy responded in opposition [D.E. 223]. On April _1, f019, Duke Energy moved for adjudication ofits motion to strike because BlackRock did not timely respond [D.E. 224]. On . ._ -;· April 5, 2019, BlackRock responded in opposition to Duke Energy's motion to strike [D.E. 226], filed exhibits [D.E. 227], and responded in opposition to Duke Energy's motion for adjudication '· ·~-- . [D.E.230]. On April 22, 2019, Duke Energyreplied(D.E. 231]. · As explained below, the court grants in part. and denies in·. part Duke Energy's first motion : . ·:.-,· . . ' . to strike, grants BlackRock's motion for an extension, denies as moot Duke Energy's motion for adjudication, denies Duke Energy's second motion to strike, grants in· part and denies in part 2 BlackRock's motion for partial summary judgment, and grants iii part and denies in part Duke Energy's motion for summary judgment. · I. Duke Energy is a public utility "created and operating under the laws of North Carolina." [D.E. 135] , 1; [D.E. 184] , 1.3 Duke Energy, in part, operates coal-burning power plants in North Carolina, which produce coal ash residue. See [D.E. 123] , 1; [D.E. 186] , 1. Under North Carolina law, Duke Energy must store and dispose of coal ash residue and other: solid waste in an environmentally safe manner. See [D.E. 123], 1; [D.E. 186], 1. Duke Energy owns and operates the Roxboro Lined Ash Monofill (the "Roxboro Landfill") in Semora,North Carolina, to store solid ' , 3 ' .-, ~ . ~.--- . . Under Local Civil Rule 56.1, a party opposing a motion for summary judgment shall submit "a separate statement including a response to eachnumbered.paragraphin the moving party's statement [of material facts]." Local Civ. R. 56.l(a)(2). "Each numbered par&graph in the moving party's statement of material facts will be deemed admitted for pmposes of the motion unless it is specifically controverted by a correspondingly numbered paragraph in the .opp()sing statement." Id. ''Each statement by the movant or opponent ... must be followed by citation to evidence that would be admissible, as required by Federal Rule of Civil Procedure S6(c)." Local Civ. R. 56.l(a)(4). Under Rule 56(c), a party disputing a material feet must support itS position by:"citing.to particular parts ofmaterials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for pmposes of the motion only), admissions, interrogatory answers, or other materials" or by "showing that the :inaterials cited do not establish the absence or presence of a genuine dispute, or that ail adverse party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1 )~ Merely responding that a party "disputes" a material fact is insufficient under Rule 56 and Local Rule 56.1. See Howard v. Coll. of the Albermarle, 262 F. Supp. 3d 322, 329 n.1 (E.D.N.C. 2017), a:ff'd, 6')7 F. App'x 257 (per curiam) (unpublished). " ... ,. . , . Duke Energy repeatedly denies factual allegations without ~itingtoevi~ce, which violates LocalRule56.1. See [D.E.186] ft2, 5, 7-8, 11-13, 15-25,27-41; [D.E.200Jft 1-2, 5-14, 16-22, 24-31, 33-36. Because Duke Energy frequently does not oppose BlackRock's statem.entofIDaterial fact by citing to particular parts ofthe record or showing that BlackRock canno~ support its position based on the evidence in the record, the court deems those material facts admitted. See ABL & Assocs. Plumbing. LLC v. United States, No. 5:16-CV-918-D, 2019 WL .2221588, at *2 n.1 (E.D.N.C. May 21, 2019) (unpublished); Alford v. Rosenberg, l"fo. 7:16-CV-376-D,, 2019 WL 1968048, at *1 n.2 (E.D.N.C. May 2, 2019) (unpublished), appeal docketed,_No. 19-159.7 (4th Cir. 2019); Horton v. Methodist Univ.• Inc., No. 5:16".'CV-945-D, 2019 wt 329572;·at *1 n.1 (E.D.N.C. Jan.23,2019)(unpublished),appealdocketed.No.19".'ll74(4thCir.2019);Feltonv.Moneysworth Linen Serv.. Inc., 295 F. Supp. 3d 595, 597 n.1 (E.D.N.C. 2018); Howard, 26Z F. Supp. 3d at 329 n.1.. ., .· ·~. : 3 . ·.-. ·. waste produced at its Roxboro power plant. See [D.E. 135] ft 4-5; [ri.E. 184] ft 4-5; [D.E. 123] ~ ~ 1; [D.E. 186] 1. BlackRock is an engineering firm that "specializes in solid waste landfill services, including the design and permitting of landfills." [D.E.· 135] ~ 2; [D.E. 184] ~ 2. ''North Carolina requires every solid state waste management facility to· obtain a Permit to Construct ("PTC") issued by the, Solid Waste Maiiagement Section· of~the North Carolina Department ofEnvironmental Quality ("DEQ")" before constructing ~landfill; [D.E. 135] ft 6, 1O; [D.E. 184] ft 6, 10.4 PTC applications must contain "detailed plans and specifications prepared by a professional engineer" that include "a grading plan, construction plan, [and] site development showing phases or progression of operation in fiv~-y~ or ten-~ear phases of ~nstruction and operation." [D.E. 135] ft 7, 9 (alteration and quotation omitted); [D.E. 184] ft 7, 9.5 Once a facility owner completes landfill construction, a professional engineer muSt prepare a Construc.tion Quality Assurance Report ("CQA Report'') that certifies that "the landfill was constructed properly and '-., - :~ consistent with th~ plans approved under the PTC." [D.E. 135] ft 11-12; [D.E:?.84] ~ U-12. ''The CQA Report comprises technical drawings and text reflecting the as-built conditj.ons ofthe landfill." I . ' ' - .. . [D.E. 135] ~ 13; [D.E. 184] ~ 13. The DEQ then reviews the CQA Repon and, if approved, issues ' I . • •. . to the facility owner a Permit to Operate ("PTO") to operate (i.e., s.tore solid.waste at) the landfill. See [D.E. 135] ft 14-15; [D.E. 184] ft 14-15. ' -' : In 1999, Duke Energy's predecessors, Carolina Power & Light Co. ("CP&L") and Progress . . .. ' '. . . Energy, Inc. ("Progress Energy"), hired Gary W. Ahlberg ("Ahlberg") to provide engineering ... ' . ' . services for the Roxboro Landfill based on Duke Energy's plan to _transition the Roxboro Landfill ·.... ··:·;·_, .' ' from an unlined to a lined facility (the "Landfill transition plan").. See [D.E. 123] ~ 4; [D.E. 186] ~ 4; [D.E. 135] ft 18-19; [D.E.184] ft 18-19. the parties agreed that the Lmldfill transition plan . . ..... _. ..... - .. 4 In September 2015, the North CarolinaQepartmentofEnvitonmentatidNatural Resources ("DENR") changed its name to DEQ. For simplicity, this order refefS a8. DEQ. . .. ·... to.. the .agency .·::-.. . ' '.· . ' The parties dispute the extent to which North Carolina l~w dictates or prescribes landfill design. Compare [D.E. 135] ~ 8, with [D.E. 184] ~ 8. 5 4 .. -: .- . . would occur in nine phases, but the parties dispute the extent of collaboration between Ahlberg and DukeEnergy. Compare[D.E.135]~20, with[D.E.184]~20. TheDEQaj>provedPhases 1 through 5 of the Landfill transition plan. See [D.E. 123] ~ 6; [D.E. 186] ~ 6.· Ahlberg performed under an Individual Project Contract No. 14574 (the· ''First Contract''), which was ''periodically expanded and maintained active by amendments/' [D.E. 123] ~ 4; see [D.E. 186] ~ 4; [D.E. 200] ~ 2; [D.E. 133-1]. Several provisions of the First Contnict are relevant. The First CQntract allowed either party "to terminate the contract for convenience." [D.E. 135] W21, 23; [D.E. 184] W21, 23. The First Contract also deemed "any copyrightable material" to be ''work for hire" under the Copyright Act, and Ahlberg "assigned all copyrights· in any copyrightable ·. '.: ' materials produced thereunder to Duke Energy's predecessor-in-interest." [D.E. . .. . ·'· 135]~ 24; [D~E. :. 184] ~ 24; [D.E. 133-1] 8 (emphasis in original). In addition, the Fir~ Contract provides_ that "any ' . ' program, document, data or information supplied by [Ahlberg] to CP&L may.be used, copied or . .. ' · ...::.·. . .:. ' .,,_ . ,' disclosed by CP&L as necessary in the norm.al course ofits business, notwithstllnding any copyright .' ,' ; ~-. ,_ . ., of [Ahlberg] in such materials and notwithstanding any notices or legends appe~thereon." [D.E. 135] ~ 24; [D.E. 184] ~ 24; [D.E. 133-1] 13. In 2006, Ahlberg formed BlackRock, and BlackRock assumed . all contracts and responsibilities ofAhlberg. See [D.E. 123] ~ 5; [D.E. 200] ~ 1. BlackRock adopted a triangular logo . ' as a service mark to identify its business. See [D.E. 123] ~ 7; [D.E. 186] ~ 7... In September 2011, . . . BlackRock claims that Progress Energy requested r~mmendatioils. for future phase plans from . • • ·, . '- . r. ~ ' ~- ' ''-; BlackRock.· See BlackRock Add. [D.E. 184] ~ 4; [D.E: 200] ~ 4. In response, BlackRock requested a ,contract extension. See BlackRock Add. [D.E. 184] ~ 5; [D.E.· 200) ~ 5. ~In March 2012, Progress . . ' .... . . Energy and BlackRock executed Amendment 30. to the First Co~tract, exp~ding the scope of . '. ., . ·. BlackRock's work at the Roxboro Landfill ''to include engineering support for the design and permitting of new capacity additions Phases 6 through 9." [D.E. 135] BlackRock Add. [D.E. 184] ~ 7; [D.E. 200] ~ ~ 27; [D.E. 184] ~ 27; 7. In Amendment 30, the parties ."agreed that 5 BlackRock would retain a license to use work product but that such license right:S shall not extend to any information or data that is specific to the Roxboro Plant, Which shall remain the excllisive . . property of [Duke Energy]." [D.E. 135] , 27 (emphasis in orlginal; ·a1tera~on and quotations omitted); [D.E. 184], 27; [D.E. 146] 3. BlackRock then created plans for Phase 6 of the Landfill transition plan, and BlackRock submitted the plans to Progress Energy. See [D.R 123]., 8; [D.E. 186], 8; [D.E. 135], 28; [D.E. 184], 28. The parties dispute the extent to which Blac]rR.ock and Duke Energy collaborated on the Phase 6 plans. Compare [D.E. 135], 28, with [D.E. 184], 28. In January 2013, BlackRock and Progress Energy entered into a new .Master Contract (the "Master Contracf') to replace the First Contract. See [D.E. 123], 9;·- [D.E. 186], 9; [D.E. 135], . -.-.· . 29; [D.E.184] , 29. The parties dispute when the Master Contractwent into ,effect.· Duke Energy . _. .... . contends that the Master Contract went into ~ffect only after· the .partie~ executed a work authorization on August 7, 2013, while BlackRock cl~ that it went into effect on either April 1, 2012, or January 1, 2013, under the terms ofthe contract. Compare [D.E. 135}, 29, with [D.E. 184] , 29. The Master Contract retained provisions concerning termination.. See [D.E. 135] ft 30--33. The Master Contract did not contain a ''work made for hire" clause that would ~sign BlackRock's copyrights to Duke Energy or Progress Energy. See BlackRock Add~ [D.E. 184] ., 9; [D.E. 200] , 9. BlackRock then ''provided engineering work on Phase 6" ofthe Lan.dfill ~ition plan, ''which included the preparation ofmany reports and technical drawings that were subniitted to J:?uk:e Energy and to [DEQ]." [D.E. 123], 10; [D.E. 186], 10. BlackRock ideJ1tmes various drawings that it prepared, each of which displayed BlackRock's name and service in.ark. See [b.E. 123] ft 11-12, 16. BlackRock claims, and Duke Energy disputes, that BlackRock provided . these services under the terms of the Master Contract. Relevant here, BlackRock prepared a PTC application for Phase 6 and a CQA report stating that ''the Phase 6A landfill was constructed in genera{ accordance with the requirements of the Phase 6 [PTC], project drawings, and specifications." [D.E. 184], 20·. 6 ·. -: ' By 2014, Duke Energy decided to end its relationship with BlackRock· See [D.E. 123] ~ 19; [D.E. 186] ~ 19. Beginning in the fall of 2014, Duke Energy copied BlackR.ock's ''technical drawings and materials generated by BlackRock" and distributed these materlals to AMEC. See [D.E. 123] ft 21-22; [D.E. 186] ft 21-22. On November 17, 2014, Duke Energy issued a cease work directive to BlackRock, and on December 5, 2014, Duke Energy unilaterally terminated its contractual relationship with BlackRock and began working with AMEC. See [D.E. 135] ft 34-35; [D.E. 184] ft 34-35; [D.E. 123] ~ 20. AMEC used and copied BlackRock's technical drawings in preparing reports to submit to DEQ "for activities relating to the Roxboro Landfill." [D.E. 123] ~ 25; [D.E. 186] ~ 25; see [D.E. 123] ft 26--31; [D.E. 135] ~ 39; [D.E. 184] ~ 39. . ' On December 18, 2014, less than two weeks after Duke Energy teJminated the Master Contract, BlackRock contacted DEQ ''to retract its certification of the Phase 6A CQA Report that • . ·: ·. . '1-" . .. ' • . ~ BlackRock had previously submitted to the agency to obtain a [PTO] _for Phase 6" of the Landfill . . : . -. -. ~ ' ~ '- . . . transitionplanforDukeEnergy. [D.E. 135] ~36; [D.E... 184] ~36;'. ·'BlackR.ockAdd. [D.E. 184] ft ' . . :. ...< . ~-:·., 21-24; [D.E. 200] ft 21-24. ~ In response,, DEQ ."requested that Duke Energy. submit a report in . . . -~ · .. ' : response to the issues raised" by BlackRock. [D.E. 135] ~ 36; [D.E. 184] ~ 36. On February 9, . "•. ··.· ' .'· 2015, DEQ issued a PTO for Phase 6 to Duke Energy. See [D.E. 135] ft 37, 49; [D.E. 184] ft 37, 49. In April 2015, DEQ required Duke Energy to submit an "Annual Progress Report for Dam SafetyCertificateofApprovalfortheRoxboroLandfill." [D.E.1~3]~13; [D.l~. f86]~13. AMEC prepared the report for Duke Energy, which included copies ofBlackR.ocktechni~ docUmen.ts. See .. . . \ • [D.E. 123] ft 14-15; [D.E. 186] ft 14-15. On August 17, 2015, BlackRock applied to obtain-~pyright reeistratio~ for "its intellectual 1 • ,_-.. •. property," [D.E. 121] 11-12,includingitsAugust2013 PTCforPhase6andits 6ctober2014CQA ' • , ' I . '. ' • • ;: ''.' • .~ • '> • ·• • • • ' ~ • • • . Report for Phase 6A. See [D.E. 123] ft 32, 34; [D.E. 186] ft 32, 34; [I).E. 135] ~ 40; [D.E. 184] I . . . ~ 4~. The United States Copyright Office granted BlackR.ock's copyright appµcations. See [D.E. 123] ft 33, 35; [D.E. 186] ft 33, 35; BlackRock Add. [D.E. 184] ~ 19; [D.E. 200] ~ i9. In 2017, 7 BlackRock applied to supplement its copyright registrations, which the Copyright Office granted on July 2, 2018. See [D.E. 123] ft 37-41; [D.E. 186] ft 37-41. II. A. Duke Energy moves to strike all evidence from BlackRock or Ahlberg concernilig damages because "Ahlberg' s testimony should have been offered by an. expert, but was instead offered by'' Ahlberg as a lay witness. [D.E. 161] 1. BlackRock seeks two types of damages: "(1) business loss . . .. - . to BlackRock arising from the complete destruction ofits business when [Duke Energy] terminated to- BlackRock' s its services in bad faith an.d provided BlackRock' s proprietary work product . ,,, ' •, :~· competitor, measured by the amount of income BlackRock reaso~bly expected to have earned during the remaining term of the Master Contract; an.d (2), recovery· of the :savings an.d profits realized by [Duke Energy] when [Duke Energy] -gained the right'~ through the infringement of Black:Rock's copyrighted works-to expan.d the capacity ofthe_Roxboro Landfill an.d dispose of coal ash waste generated by the Roxboro Plan.ton its own premises." [D.E. 179] 1-2. BlackRock seeks $1,739,296 in business losses an.d $229,036,487 in savings an.d profits re~_ by Duke - . - ' Energy. See [D.E. 179] 4, 5. BlackRock presents only Ahlberg as a witness concernilig damages. -. . - Under Rul.e 701 of the Federal Rules of Evidence, "[i]f a witness is not testifying as an. ',. expert, testimony in the form of. an. opinion is limited to one that is (a) rationally based on the . '· ,~-:· - :Mtness' s perception; (b) helpful to clearly understanding the witn~ss's testimony or to determining a fact in issue; an.d (c) not based on scientific, technical,_ or other speeialized ~owledge within the i;cope of Rule 702." Fed. R. Evid. 701; see Gallagher v. S. Source Packagjn~LLC, 568 F. Supp. 2d 624, 632-33 (E.D.N.C. 2008). "The modern trend favors the admission Qf_opinion testimony, provided that it is well founded on personal knowledge as distinguished from hypothetical facts an.d susceptible to specific cross-examination." MCI Telecommc'ns Corp. v. W8nzer, 897 F.2d 703, 706 (4th Cir. 1990) (quotation, alte(ation, an.d citation omitted); see Lord & Taylor. LLC v. white 8 .·-· •.· Flint LP, 849 F.3d 567, 575 (4th Cir. 2017); United States v. Perkins, 470 F.3d 150, i55-56 (4th Cir. 2006). As for Ahlberg's opinion concerning BlackRock's business_ losses, Ahlberg's opinion is based on a report by BlackRock's extemal accountant concerning BlackRock's normalized profit margins, not on Ahlberg' s personal knowledge or experience in the engineering field. See Ex. B [D.E. 162-1] 9--13. BlackRock may not present its aecountant' s report as Ahlberg' s lay opinion and thereby circumvent Rule 702 of the Federal Rules of Evidence. See Gallagher, 568 F. Supp. 2d at 633; Static Control Components. Inc. v. Darkprint Imaging, Inc., 240 F. Supp. 2d 465, 481 (M.D.N.C. 2002) (noting that, while ''business ownerS and officers [may] testify~ lay witnesses under [Rule] 701," such witnesses ''must possess personal knowledge ofthe lost profits and damages and may not rely on hearsay''). To the extent that Ahlberg offers a lay opinion based on BlackRock's . ":·. extemal accountant's report, the court grants Duke Energy's moD:on to strike. , · As for Ahlberg's opinion concerning Duke Energy's potential saVings, Ahlberg lacks personalknowledgeofrelevantDukeEnergydata. See [D.E.162 ..1] 21-22. That is, Ahlberg bases . . . ~ any such opinion on hypothetical facts, not on his personal knowled_ge. Accordingly, the court grants Duke Energy's motion to strike such evidence. Thus, the court grants in p~ and denies in part Duke Energy's motion to strike BlackRock's evidence concerning damages. B. . . .... · Duke Energy next moves to strike Ahlberg' s affidavit, [D.E_. 180- ~ ], and _for_ an award of its reasonable expenses [D.E. 204]. Duke Energy argues that Ahlberg's affidavit-.which BlackRock I ' :",._:· submitted in its.response in opposition to Duke Energy's motion for summaryjudgment-violates the Federal Rules ofEvidence, violates BlackRock' s duty to supplei:p.ent its dise<>veryrespon8es, and is a sham affidavit. See [D.E. 205] 4-5. For good cause shown, the court grants BlackRock's motion for an extension and denies as moot Duke Energy's motion for adjudication. . . ~ Ahlberg's affidavit does not violate Rule 56(c)(4) of the Fecieral Rules of Civil Procedure. 9 See Fed. R Civ. P. 56(c)(4); Antonio v. Barnes, 464 F.2d 584, 585 (4th Cir.1972) (per curiam); Kingv. N.C. De.p'tofPub. Safecy, No. 5:12-CV-152-F, 2014 WL 69601, at *2:-3 (E.D.N.C. Jan. 8, 2014) (unpublished). Relatedly, Ahlberg's affidavit does not violate Rule 701 of the Federal Rules of Evidence and the court declines to exclude Ahlberg' s affidavit as a sham~ ' ~ . . As for whether . BlackRock violated its duty to supplement its discovery responses, the coUrt demes Duke Energy's motion to strike Ahlberg' s affidavit. Instead, the court has considered the competent portions of Ahlberg' s affidavit in deciding the parties' motions for summary judgment. King, 2014 WL 69601, at *2-4. m. Summary judgment is appropriate when, after reviewing. the record 88. a whole, the court determines that no genuine issue ofmaterial fact exists and the moving party is entitled to judgment , ' as amatteroflaw. See Fed. R Civ. P. 56(a);Anderson v. LibertyLobby,Inc.,:477U.S. 242,247-48 (1986). The party seeking summary judgment must initially demonstrate the ~sence of a genuine issue ofmaterial fact or the absence of evidence to support the nonm.oving party's case. See Celotex . ""·· . . . ' . Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the movmg party has ·.-. met its burden, the ' . . . . nonm.oving party may not rest on the allegations or denials in its pleading, see Anderson, 477 U.S. at 248-49, but ''must come forward with specific facts showing· that th.ere is a genuine issue for trial." MatsushitaElec. Indus. Co. v. Zenith Radio Corp., 475 u._s. S74,· 587 (1,986) (eDlphasis and quotation omitted). A trial court reviewing a motion for . . summ~ judgm~t . should determine . whether a genuine issue of material fact exists for trial. See Anderson, 477 U.S. at 249. In making this determination, the court must view the evidence and the inferenees drawn ~erefrom in the light most favorable to the nonm.oving party. See Scott v. Harris, 550 U.S. 372, ~78 (2007). "when cross-motions for summary judgment are before a court, the court examines each' motion. separately, ·... ' ~ploying the familiar standard under Rule 56 of the Federal Rule~ of Civil Procedure." Desmond v~ PNGI Charles Town Gaming, L.T.C., 630 F.3d 351, 354 (4th Gir. 2011). ·;_ . . .. 10 A genuine issue ofmaterial fact exists ifthere is sufficient evidence favo:riD.gthe nonm.ov:ing party for a jury to return a verdict for that party. See Anderson, 477 iJ.S~- at 249. "The mere existence of~ scintilla of evidence in support ofplaintiff's position_[is] insufficient ...." Id~ at 252.; see Beale v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Only facwai disputes thataffect the outcome under substantive law properly preclude summary judgment. See Anderson, 477 U.S. at 248. Subject-matter jurisdiction is based on federal question jurisdiction: _ The motions for summary judgment require the court to consider state law claims, and in doing so the court applies state substantive law and federal procedural rules. See Erle-R.R. v. Tompkins, 304 U.S. 64, 78--80 (1938); Dixon v. Edwards, 290 F.3d 699, 710 (4th Cir. 2002). North Carolina law applies to the - -:· state law claims. Accordingly, this court must predict how the Supreme Court of North Carolina would rule on any disputed state-law issue. · See Twin City Fire Ins· Co. v. Ben Arnold-Sunbelt ,, ' Beverage Co. of S.C., 433 F.3d 365, 369 (4th Cir. 2005). In, doing so~ the court must look first to opinions ofthe Supreme Court ofNorth Carolina. See id. at 369. Ifjhere ~e no governing opinions ' . from that court, this court may consider the opinions of the North Carolina Court of Appeals, treatises, and ''the practices of other states." Id. (quotation omitted).6 In predicting how the highest court of a state would address an issue, this court must "follow the decision of an intermediate state appellate court unless there [are] persuasive data that the highest court would-decide differently." 630 &- n.3 (1988). Toloczko, 728 F.3d at 398 (quotation omitted); see Hicks v. Feiock, 485 U.S. 624, . . . Moreover, in predicting how the highest court of a state would address a.ti 1~~' a federal court "should notcreate or expand a [s]tate's public policy.''. Time Warner Entm't-Advance/Newhouse . . .. . . . P'shipv.Carteret-CravenElec.MembershipCorp.,506F.3d304,J14(4thCir.2007)(alterationand . ~· :- quotation omitted); see Day & Zimmerman, Inc. v. Challoner, 423 U.S: 3, 4 (1975) (per curiam); ' '- Wade v. Danek. Inc., 182 F.3d 281, 286 (4th Cir. 1999). 6 North Carolina does not have a mechanism to certify questions of state law to its Supreme Court. See Town ofNags Head v. Toloczko, 728 F.3d 391, 397-98 (4th Cfr. 2013). ll :··- A. In count one, BlackRock alleges that Duke Energy will:fully infring~ its. copyrights by impermissibly and unauthorizedly reproducing, using, distributing, and inducing the preparation of "derivative works based upon BlackR.ock's Technical Documents" in violation ofthe United States Copyright Act of 1976, 17 U.S.C. § 101 et seq. Compl. [D.E. 5] W 129-.-38~ ... ''The power over patent and copyright granted to Congress in Articfo- I, Section 8 of the Constitution is intended to motivate the creative activity of authors and inventOrs by the provision of a special reward, and to allow the public access to the products of their geni1ls after the limited period of exclusive control has expired." Bouchat v. Bait. Ravens Ltd. P'ship, 737 F.3d 932, 936 (4th Cir. 2013) (quotation omitted); see Sony Cotp. ofAm. v. Universal City StiJdios. Inc., 464 U.S. 417, 429 (1984). The Copyright Act grants "a bundle of exclusive rights-~ the owner of the ..... ,; :· ~opyright," including the rights ''to publish, copy, and distribute the author's work," to promote the progress of science and the useful arts. Hamer & Row Publishers. Inc. v. Nation En~., 471 U.S. 539, 546-47 (1985); see U.S. Const. art. I, § 8; Bo~hat, 737 F.3d at 93~37 .. · "Copyright protection subsists . . . in original works of authorship fixed in any tangible .. . medium of expression . . . from which they can be perceived, reproduced, or otherwise . ' ' communicated ...." 17 U.S.C. § 102(a); see Humphreys & PartJ:lers Architects. LP v. Lessard Design. Inc., 790 F.3d 532, 537 (4th Cir. 2015); Universal Fumi~:~-Int't Inc. v'. Collezi.one Europa USA. Inc., 618 F.3d 417, 428 (4th Cir. 2010). "The sine qua non of copyright is originality. To qualify for copyright protection, a work must be original to the author." Feist Publ'ns. Inc. v. Rural .· , Tel. Serv. Co., 499 U.S. 340, 345 (1991) (citation omitted); see 17 U.S.C. § _102(b); Custom Dynamics. LLC v. Radiantz LED Lighting. Inc., 535 F. Supp. 2d 542, 549 (E.D.N.C. 2008). "Original, as the term is used in copyright, means only that the work was ind~dently created by the author (as opposed to copied from other works), and that it pos~esses at least some minimal 12 '~[T]he requisite level degree of creativity." Feist Publ 'ns. Inc., 499 U.S. at345 (citation omitted). of creativity is extremely low; even a slight amount will suffice." Id. To establish copyright infringement, a plaintiffmust prove two elem.en~: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are 'original. See id. at 361; Humphreys & Partners Architects, 790 F.3d at 537; Arnett v. Jackson, No. 5:16-CV-872-D, 2017 WL 3493606, at *2 (E.D.N.C. Aug. 14, 2017) (unpublished); Custom Dynamics, 535 F. Supp. 2d at 548. "A certificate of registration issued by the Copyright Office is prima facie evidence of the validity of the copyright and of the facts stated in the certificate, such as oWQ.ership." Universal V/h~ a certificate of Furniture Int'l, 618 F.3d at 428 (quotation omitted); see 17 U.S.C. §.410(c). registration exists, ''the burden shifts to the defendant to prove that the claimed copyrights are invalid." Universal Furniture Int'l, 618 F.3d at 428 (citation omitted).. The fair use exception is codified at 17 U.S.C. § 107. See 17 U.S.C. § 107; Campbell v. . . .: ........ _· ' / -~' ' ~ . Acuff-Rose Music. Inc., 510 U.S. 569, 576-78 (1994); Bouchat, ?3?,F.3d at 936-37. Section 107 lists four factors, which are to be weighed together in light ofthe puwoses ofcopyright, to determine ·.·" whether a particular use is a fair use: .. '. ' '.·· (1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonpr~fit educational purposes; , ' · (2) the nature of the copyrighted work; (3) the amount and substantiality 'of the portion used in relation to the copyrighted work as a whole; and (4) the effect ofthe use upon the potential market for or value ofthe-copyrighted work. · 17 U.S.C. § 107. The primary focus is on the first factor; See Bo~hat, 737 F;3d at937; ''The crux of the profit/nonprofit distinction is not whether the sole motive': ofthe use is monetary gain but whether the user stands to profit from exploitation of the copyrighted material .without paying the customary price." Harper & Row, 471 U.S. at 562 (citation omitted). As for the:Iast factor, the court must consider whether Duke Energy's use ''would materially impair the marketability of the work 13 and whether it would act as a market substitute for it." Borichat, 737. F.3d a~ 943 (quotation and citation omitted). Fair use is a complete defense to an infringementclaim. See 17 U.S.C. § 107. The court assumes without deciding that BlackRock owned a valid copyright and that Duke Energy copied the copyrighted work. Even viewing the record· in the light most favorable to BlackRock, no rational jury could find that Duke Energy's use did not constitute fair use. Duke Energy submitted BlackR.ock's copyrighted materials as part of a regulatory process, and Duke Energy previously compensated BlackRock for preparing these materials. BlackR.ock's drawings had no marketability otherwise because they were specific to the Roxboro' Landfill project. . Furthermore, considering the scope offilackR.ock's copyrightinfringern.entcl~ Duke Energy used :. ~ _: only a portion of BlackR.ock's total copyrighted work. Examining .the record in.the light most ' • I • '·'·· 'c' . ''- • favorable to BlackRock and weighing the factors in s~on 107, Duke;, .Energy's use constituted fair use. Accordingly, the court grants Duke Energy's motion for summary judgment on count one. B. In count two, BlackRock alleges that Duke Energy breached its con~t with BlackRock by "[w]rongfully seeking to terminate the contractual relationship with BlackRock; [w]rongfully acting in bad faith to terminate the Master Contract; [t]~ting the Master. . Contract [which BlackRock . - . ' alleges caused substantial inconvenience to Duke Energy]; and [r]eftising to pay BlackRock for work . :· completed. See Compl. [D.E. 5] mf 139-46.7 Under North Carolina law, a breach of contract ~laim baS ·~o elements: (1) the existence . ·. ''- . . . of a valid contract and (2) a breach ofthe terms ofthat contract. See McLamb.v. T.P. Inc., 173 N.C. In its response, BlackRock also claims that Duke Energy ~eached the iinplied.covenant of good faith and fair dealing by "string[ing] BlackRock along to gain the nCC.Cssary engineering information and experience for the Roxboro Landfill project, terminat[ing] BlackRock, [and] replac[ing] it with a different Engineer of Record." [D.E. 180] 1+...15. B,ecause BlackRock improperly raised this claim for the first time in its response brief, the. court declines to consider the argument. See United States ex rel. Graybar Blee. Co. v. Team Constr., LLC, 27,5 F. Supp. 3d 737, 748 n.3 (E.D.N.C. 2017) (collecting cases). ·· · 7 14 App. 586, 588, 619 S.E.2d 577, 580 (2005); Cater v. Barker, 172 N.C. App. 441, 445, 617 S.E.2d 113, 116 (2005), aff'd, 360 N.C. 357, 625 S.E.2d 778 (2006); Poor v. Hill, 138 N.C. App. 19, 29, 530 S.E.2d 838, 845 (2000). ''Non-performance of a valid contract is a breach thereof unless the· person charged shows some valid reason which may excuse the non-performance; and the burden of doing so rests upon him." Cater, 172 N.C. App. at 447, 617 S.E.2d at J17 (quotation and alterations omitted); Blount-Midyette v. Aeroglide Cor,p., 254 N.C. 484, 488, 119 S.E.2d 225, 228 (1961); s~ Mic~l Borovsky Goldsmith LLC v. Jewelers Mut. Ins. ~o., 359 :F~ ~upp. 3d 306, 311 (E.D.N.C. 2019); Barbourv. Fid. LifeAss'n, 361 p; Supp. 3d 565, 51i·(E.D.N.C. 2019); Abbington SPE. LLC v. U.S. Bank Nat'l Assoc., 352 F. Supp. 3d 508, 517 (E.D.N.C. ·2016), aff'd, 698 F. ' ' ' App'x 750 (4th Cir. 2017) (per curiam) (unpublished).. "[T]he terms ofa contract are to be interpreted according to the.expressed intent ofthe parties unless such intent is contrmy to law." Offi.ss. Inc. v. First Union Nat'l Bank,_ 150 N.C. App. 356, 363, 562 ~.E.2d 905, 910 (2002), disc. review denied, 356 N.C.165, 568 s_.E.2d 606 (2002); see Lane v. Scarborough, 284 N.C. 407, 410-11, 200 S.E.2d 622, 624 (1973); Duke Power Co. v. Blue . :·: ' ~ Ridge Blee. Membership Cor,p., 253 N.C. 596, 602, 117 S.E.2d 812, 816 (196!). The contract between BlackRock and Duke Energy at all times contained a ~tion for convenience clause - . . ~ andamerger clause. See [D.E. 135] ft 21, 23, 30-33; [D.E. ·184]ft:Zl, 23,.30:-33. Duke Energy t • . . ' merely exercised its contractual right in terminating its contract witbBlackRock. Accordingly, the court grants Duke Energy's motion for summary judgment on co\int two. c. In count three, BlackRock claims that Duke Energy has been unjUStly enriched by its BlackRock ~ts that ''it has dropped allegedly ilimnging actions. See Compl. [D.E. 5] ft 147-53. . . . ''· its .unjust enrichment'' claim. [D.E. 184] ~ 54; see [D.E. 180] 39; [D.E. 39] 35. Acc0rdingly, the . . : ... . ' . court grants Duke Energy's motion for summary judgment on count three. · · • ' I . 15 . • .• <·-~: ~ D. Jn count four, BlackRock claims that Duke Energy is liable for common law conversion and misappropriation.. See Compl. [D.a. 5] mf 154-61. BlackRock admits that·it ''has dropped" its conversion and misappropriation claims. [D.E. 184] ~ 54; see [D.E. ·180]' 39; [D.E. 39] 35. Accordingly, the court grants Duke Energy's motion for summary judgment on count four. Jn count six, BlackRock claims that Duke Energy infringed its trademarks in violation ofthe North Carolina TrademarkRegistrationAct(''NCTRA"), N.C. Gen. Stat.§ 80-1 et~ [D.E. 5] mf 166-72. BlackRock and Duke Energy seek summary judgment on this count. protection substantially The NCTRA provides "a system of State trademark registration and . .. ..... consistent with the federal system oftrademark registration and protection . . underthe Trademark Act ' . of 1946, 15 U.S.C. § 1051 et~" . . _.. ' N.C. Gen. Stat.§ 80-1.1. "The. construction given the federal '• .". " act should be examined as persuasive authority for interpreting and . . constructing'' the NCTRA. Id. The NCTRA defines two types of conduct as trademark infringement: (1) [To] [u]se in [North Carolina] without the consent of the registrant, any reproduction, counterfeit, copy, or colorable imitation of a mark registered under [the NCTRA] in connection with the sale, offering for sale, or advertising of any goods or services on or in connection with which such use is likely to cause confusion or mistake or to deceive as to the solirce of origin of such goods or services; or (2) [To] [r]eproduce, counterfeit, copy or colorably imitate ariy ~h mark and apply such reproduction, counterfeit, copy or colorable imitation to labels, signs, prints, packages, wrappers, receptacles, or advertisement:S intended to be used upon or in conjunction with the sale or other distribution in [North ~· Carolina] of such goods or services. Id.§ 80-11; see lSU.S.C. § 1114(1). Black:Rockproceedsunderthefjrstprong.oftheNCTRA. The parties dispute whether Duke Energy used BlackRock' s niarks "in connection with the sale, offering for sale, or advertising of any goods or services" and whether such use is likely to cause confusion. N.C. Gen Stat.§ 80-1.1. 16 To determine whether a likelihood ofconfusion exists, courts applying federal trademark law consider nine factors: (1) the strength or distinctiveness of the plaintiff's mark as actually used in the marketplace; (2) the similarity of the two marks to consumers; (3) the similarity of the goods or services_ that the marks identify; (4) the similarity of the facilities used by the markholders; (5) the similarity of advertising used by ·the markholders; (6) the defendant's intent; (7) actual confusion; · (8) the quality of the defendant's product; and (9) the sophistication of the consuming public. Variety Stores. Inc. v. Wal-Mart Stores. Inc., 888 F.3d 651, 660 (4th Cir. 2018); see Grayson 0 Co. v.Agadirlnt'lLLC, 856F.3d307, 314 (4th Cir. 2017); Ga. Pac. ConsumerProds.• LPv. VonDrehle Corp., 618 F.3d441, 454 (4th Cir. 2010); George & C'?~ v. ImaginationEntm.'tLtd., 575 F.3d 383, 393 (4th Cir. 2009). ''Not all of these factors will be relevant in every trademark dispute, and there is no need for each factor to support the plaintiff's position on the likelihood of confusion issue." Variety Stores. Inc., 888 F .3d at 660 (alteration and quotation omitt.ed). In evaluating the likelihood of confusion, the court may consider whether "it can be shown that public confusion will adversely affect the plaintiff's ability to control [its] reputation among its laborers, lenders, investors, or other group with whom plaintiff interacts." Ga. Pac. Consumer Prods., 618 F.3d at 453 (quotation omitted). Even assuming that BlackRock's trademark infringement claim is not merely a repackaged copyright infringement claim, see Dastar Corp. v. Twentieth Centwy Fox Film Corp., 539 U.S. 23, ' ...... 34 (2003), and even assuming that Duke EnergyusedBlackRock's marks incomiection with the sale of electricity, and even considering the record in the light most favorable to BlackRock, BlackRock 17 has not produced evidence from which a rational jury could find that Duke Energy's use is likely to cause confusion. First, BlackRock has not produced evidenee ofthe strength of its trademarks. See Variety Stores. Inc., 888 F.3d at 663 (listing factors); Grayson 0 Co., 856 F.3d at 314-17. Second, no rational jury could find that Duke Energy intended to confuse consul:ners or infringe BlackRock' s marks. Cf. Variety Stores. Inc., 888 F.3d at 665. Third, BlackRock has not produced evidence of actual confusion, particularly how AMEC's modifications could cause confusion to the public. "[T]he absence of any evidence of actual confusion over a substantial period oftime creates a strong inference that there is no likelihood of confusion." Id. at 666 (alteration and quotation omitted); see George & Co., 575 F.3d at 398; CareFirst ofMd.. Inc. v. First Care. P.C., 434 F.3d 263, 269 (4th Cir. 2006); Grayson 0 Co., 856 F.3d at 319--20. Finally, BlackRock offers little__ evidence that ~e Energy's submissions have interfered with BlackRock' s ability to control the quality ofits products, . . .. . . ' . · ' ~ · thereby causing risk of injury to the reputation ofBlackR.ock's marks;. See, ~-Ga. Pac. Consumer Prods., 618 F.3d at 455. Accordingly, viewing the record in the light most fav()rable to BlackRock, the court grants Duke Energy's motion for summary judgment on count six and denies BlackR.ock's motion for summary judgment on count six. F. In count five, BlackRock claims that Duke Energy's use of its technical drawings, which ''prominently display BlackRock' s service mark and logo," violates common law unfair competition [D.E. 5] W 162--66. "The North Carolina common law of unfair competi.1;i()n in the context of trademarks is similar to the federal law of trademark infringement." Re/Max _LLC v. M.L. Jones & ,· . . . Assocs.. Ltd., No. 5:12-CV-768-D, 2014 WL 7405461, at *4. (E.D.N.C. Dec. 30, 2014) (unpublished) (alteration and quotation omitted); see Polo Fashions. Inc. v. Craftex. Inc., 816 F.2d 145, 148 (4th Cir. 1987); Charcoal Steak House of Charlotte. Inc. v. Staley. 263 N.C. 199, 201--03, 139 S.E.2d 185, 187--88 (1964). BlackRock and Duke Energy move for summary judgment on this count. 18 To establish trademark infringement under federal law, Blac~ock must prove that (1) it owns a valid mark; (2) Duke Energy used the mark in commeree and· without BlackRock's authorimtion; (3) Duke Energy used the mark, or an imitation of it, in connection with.the sale of goods and services; and (4) Duke Energy's use of the mark is likely to confuse customers. See 15 U.S.C. § 1114(1)(a); Rosetta Stone Ltd. v. Google. Inc., 676 F.3d 144, 152 (4th Cir. 2012); George & Co., 575 F.3d at 393; Louis Vuitton Malletier S.A. v. Haute Diggizy Dog. LLC, 507 F.3d 252, 259 (4th Cir. 2007); People for Ethical Treatment of AnjmaJs v. Doughney, 263 F.3d 359, 364 (4th Cir. 2001). see [:r;>.E. 135] , .3; [D.E. Even. assuming that Duke Energy ~d BlackRock are compcajtors, - . . ·, . -. ~ 184] , 3, and even assuming that the Copyright Act does not preepipt BlackRo_ck's unfair \ . ' --·. '• ·,· - ·, . co:mpetition claim, no rational jury could find tha~ Duke Energy infringed Bl3'?kRock' s trademark. ' ,.___ . . ·· .... . - Viewing the record in the light most favorable to BlackRock, BlackRock cannot establish a likelihood of confusion based on Duke Energy's use of BlackRock' s tec11ni.cal drawings in its regulatory ~ubmission. Accordingly, the court grants Duke Energy's m9tion for summary judgment on count five and denies BlackRock's motion for summary j~gment on count ,five. G. Jn count seven, BlackRock alleges that Duke Energy's ~kinfringement also violates the UDTPA. See Compl. [D.E. 5] mf 173-79; [D.E. 180] 39-40. Because BlackRock's UPDTA clainl depends on the success ofits trademark infringement claim, ~ee [D.~. 180] 39-40, and because :. ~ ~... ~ -~ no rational jury could find that Duke Energy's conduct violates th~ ~CfRA, the court grants Duke Energy's motion for summary judgment on count seven. H. Jn its counterclaim, Duke Energy alleges that BlackRock committed fraud on the Copyright Office when BlackRock submitted copyright applications for the Phase 6 PTC and the Phase 6A 19 ' . __ ·, ____ _ __ _..:. __:_ - ---- ------~-·-- ----- -- --~ CQA Report. See Countercl. [D.E. 99] mi 23-34. Duke Energy and BlackRock move for SUilllrulry judgment on Duke Energy's counterclaim. "A claim alleging fraud on the Copyright Office is only available where the registrant is alleged to have made false representations offact with the requisite intent to deftaUd." Metro. Reg'l Info. Sys.• Inc. v. Am. Home Realty Network. Inc., 948 F. Supp. 2d 538; 558 (D. Md. 2013). Even viewing the record in the light most favorable to Duke Energy, no rational jury could find that BlackRock made false representations with the intent to defraud the Copyright Office. Although Duke Energy alleges that BlackRock made false representations to the Copyright Office, no rational jury could find that BlackRock made any such representations with t\le ~tent to defraud the Copyright Office. See [D.E. 135] mi 40-54. Accordingly, the court grants BlackRock's motion for SUilllrulry judgment and denies Duke Energy's ~otion for S1lllllrul9' judgmetl.t.on Duke Energy's counterclaim. IV. In sum, the court GRANTS INPART and DENIES IN PART BlackRock's_motion for partial - ..... - SUilllrulry judgment [D.E. 120], GRANTS IN PART and DENIES IN PART Duke Energy's motion .· . forSUilllrulryjudgm.ent[D.E.132],GRANTSINPARTandDENIESINPARTDukeEnergy'sfirst --· ·' ·' ' ·, motion to strike [D.E. 161], DENIES Duke Energy's second motion to strike [l)~E. 204], GRANTS BlackRock's motion for an extension [D.E. 222], and DENIES as moot Duke Energy's motion for adjudication [D.E. 224]. The clerk shall close the case. SO ORDERED. This j_ day of September 2019. .J4sc.~~~ United States District.Judge 20

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