Gordon Levey v. Brownstone Investment Group
590 F. App'x 132
3rd Cir.2014Background
- Levey sues Brownstone Investment Group for copyright infringement over Levtek, a software system.
- Levey departed Brownstone in 2006 and alleges Brownstone continues to use Levtek or a substantially similar system.
- Levey has no access to Brownstone’s internal software workings and relies on limited public allegations.
- Evidence includes a Codestreet comparison claim and a 2011-2012 communications narrative suggesting Brownstone had what Codestreet offers.
- District Court dismissed for failure to state a claim and denied discovery and a sur-reply; court held no plausible infringement alleged.
- Third Circuit affirmed the district court, holding the complaint failed to show continued use or substantial similarity sufficient for infringement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the complaint plausibly allege infringement? | Levey contends Brownstone uses Levtek or substantially similar software. | Brownstone argues the complaint lacks facts showing continued use or substantial similarity. | No plausible infringement; dismissal affirmed. |
| Was the sur-reply denial an abuse of discretion? | Sur-reply would reveal key evidence about conversations with Lane and Sablowsky. | Sur-reply evidence would not alter the Rule 12(b)(6) sufficiency evaluation. | No abuse of discretion; sur-reply properly denied. |
| Was discovery properly stayed pending dismissal motions? | Discovery could clarify whether Brownstone used infringing software. | Rule 12(b)(6) dismissal should precede discovery; discovery would be a fishing expedition. | No discovery; district court did not err in staying discovery. |
Key Cases Cited
- Whelan Assocs., Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222 (3d Cir. 1986) (substantial similarity requires identifying protectable elements)
- Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197 (3d Cir. 2002) (copying contemplated through derivative or substantially similar works)
- Oracle Am., Inc. v. Google Inc., 750 F.3d 1339 (Fed. Cir. 2014) (complexity of determining substantial similarity in software)
- Stenograph L.L.C. v. Bossard Assocs., Inc., 144 F.3d 96 (D.C. Cir. 1998) (identify protectable elements and assess similarity to protectable expression)
- Morrow v. Balaski, 719 F.3d 160 (3d Cir. 2013) (plaintiff pleading standards for 12(b)(6) dismissals and discovery implications)
- Neitzke v. Williams, 490 U.S. 319 (U.S. 1989) (dismissals under Rule 12(b)(6) without discovery when claims are implausible)