Soos & Associates, Inc. v. Five Guys Enterprises, LLC et al

THIRD party complaint by Five Guy Operations, LLC, Five Guys Enterprises, LLC against DXU Architects.

Northern District of Illinois, ilnd-1:2017-cv-06577

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Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 1 of 8 PageID #:433 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION) SOOS & ASSOCIATES, INC.,)) Plaintiff,)) v.)) FIVE GUYS ENTERPRISES, LLC and) Civil Action No. 1:17-cv-06577 FIVE GUYS OPERATIONS, LLC,)) Judge Lefkow Defendants/Third-Party Plaintiffs,)) v.)) DXU ARCHITECTS,))) Third-Party Defendant.)) THIRD-PARTY COMPLAINT Defendants and Third-Party Plaintiffs Five Guys Enterprises, LLC and Five Guys Operations, LLC (collectively, "Five Guys") for its Third-Party Complaint against DXU Architects states as follows: 1. This Third-Party Complaint asserts derivative liability against DXU Architects ("DXU") for Plaintiff's claims against Five Guys in this underlying action for copyright infringement, contributory copyright infringement, vicarious liability for copyright infringement, and violation of the Digital Millennium Copyright Act ("DMCA"). If Five Guys faces any potential liability for those claims, it is because of conduct by DXU in violation of DXU's contractual obligations to Five Guys. 00039827 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 2 of 8 PageID #:434 THE PARTIES 2. Defendant and Third-Party Plaintiff Five Guys Enterprises, LLC is a Delaware limited liability company with its principal place of business in Lorton, Virginia. 3. Defendant and Third-Party Plaintiff Five Guys Operations, LLC is a Delaware limited liability company with its principal place of business in Lorton, Virginia. 4. On information and belief, Third-Party Defendant DXU is an architectural services firm with its principal place of business in Chicago, Illinois. 5. Plaintiff Soos & Associates, Inc. ("Soos") is an Illinois corporation with its principal place of business in Lincolnshire, Illinois. JURISDICTION AND VENUE 6. This court has subject matter jurisdiction over the underlying action pursuant to 17 U.S.C. § 101, et seq. and subject matter jurisdiction over Five Guys's third-party claims under 28 U.S.C. § 1367(a). 7. Because DXU's principal place of business is in Chicago and provides architectural services in Chicago, this Court has personal jurisdiction over DXU. 8. Venue is proper for this third-party action because it is proper in the underlying case and because DXU is located in this district. FACTUAL ALLEGATIONS Five Guys's Relationship with Soos 9. Five Guys operates the FIVE GUYS brand restaurant chain. 10. Soos provided architectural services to Five Guys beginning in or around late 2008/early 2009. 11. As part of those architectural services, Soos prepared architectural plans for a number of individual FIVE GUYS restaurant locations. 00039827 2 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 3 of 8 PageID #:435 12. As a nationwide chain, consistency in branding and trade dress is important, and all FIVE GUYS brand restaurants are required to follow a carefully-developed brand image, including a specific trade dress. 13. To that end, Five Guys also hired Soos to develop and maintain a uniform set of standards, specifications, and prototypical drawings reflecting the trade dress and other standards with which all FIVE GUYS restaurants must comply (the "Corporate Design Standards"). 14. The intent and purpose of this Corporate Design Standards project was to promote consistency of the FIVE GUYS brand and trade dress across all restaurant locations. These Corporate Design Standards were to serve as reference materials for future restaurant locations consistent with the FIVE GUYS trade dress. Soos was compensated for this service. 15. From around 2009 to 2013, Soos worked with Five Guys to create the Corporate Design Standards and uploaded them to a file-sharing platform called "Buzzsaw," where they could be accessed by third-party architects and other consultants. 16. Full architectural plans for individual restaurant locations were not routinely uploaded and kept on the Buzzsaw platform. Five Guys's Relationship with DXU 17. Five Guys worked closely on the Corporate Design Standards project with one of Soos's employees, Eric Styer. 18. On information and belief, Styer had access to Soos plans for FIVE GUYS restaurants (as well as for other Soos clients) while employed by Soos. 19. In or around July 2013, Eric Styer left Soos and formed DXU. 00039827 3 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 4 of 8 PageID #:436 20. Because Styer possessed substantial institutional knowledge from his prior work with Five Guys, Five Guys hired DXU to provide the Corporate Design Standards work previously provided by Soos. 21. Five Guys also hired DXU to prepare architectural plans for individual FIVE GUYS restaurant locations. The Underlying Litigation and DXU's Derivative Liability to Five Guys 22. On September 12, 2017, Soos sued Five Guys for copyright infringement, contributory copyright infringement, vicarious liability copyright infringement, and violation of the DMCA. (Compl., Dkt. 1.) 23. In its Complaint, Soos asserts that DXU copied copyrighted material from site- specific plans created by Soos. (Compl., Dkt. 1 ¶¶ 28-31.) 24. Soos claims that DXU and other third-party architects were provided access to Soos plans by Five Guys's use of the Buzzsaw platform. (Compl., Dkt. 1 ¶¶ 32-34, 37, 39.) 25. Soos also claims that Five Guys contributed to, or is vicariously liable for, DXU's and other third-party architects' copyright infringement of Soos's copyrighted works. (Compl., Dkt. 1 ¶¶ 43-46, 49-52.) 26. Finally, Soos claims that Five Guys violated the DMCA by removing copyright management information from Soos plans before distributing those plans to DXU and other third-party architects. (Compl., Dkt. 1 ¶¶ 55-56.) 27. In providing architectural services to Five Guys, DXU was obliged to provide those services in conformity with the standards of care and skill of the architectural profession. 28. Five Guys did not encourage or authorize DXU to copy Soos's architectural plans. 00039827 4 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 5 of 8 PageID #:437 29. Five Guys did not remove or modify copyright management information from any Soos plans, nor did it encourage or authorize DXU to do so. 30. While investigating Soos's claims against it, Five Guys learned that, in the years following Styer's departure from Soos, Soos sent multiple cease and desist letters to Styer, alleging violation of a non-disclosure/non-compete and related claims, misappropriation of trade secrets and related claims, and copyright infringement. 31. To the extent that DXU copied Soos plans, it acquired and used those plans without Five Guys's knowledge or authorization. 32. Any liability Five Guys may face from Soos's allegations of such copying results from DXU's improper and unauthorized use of Soos's plans. COUNT I – BREACH OF CONTRACT 33. Five Guys incorporates by reference as though fully set forth herein the allegations of Paragraphs 1 through 32 above. 34. DXU and Five Guys entered into an agreement for architectural services. Under that agreement, DXU agreed to (1) assist Five Guys in developing and maintaining Five Guys's Corporate Design Standards, and (2) prepare architectural plans for certain FIVE GUYS restaurant locations. 35. DXU was obliged to provide those services in conformity with the standards of care and skill of the architectural profession. 36. Five Guys paid DXU for the architectural services performed under the contract. 37. If Five Guys is found liable to Soos for any of the underlying litigation's claims under the Copyright Act or the DMCA, it is because DXU breached the standard of care and skill of the architectural profession by: 00039827 5 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 6 of 8 PageID #:438 a. copying Soos plans to create individual restaurant plans for Five Guys; b. copying Soos plans to create Corporate Design Standards for Five Guys, which were used by other consultants to design FIVE GUYS restaurants; c. accessing Soos plans without Five Guys's knowledge or authorization; d. providing Five Guys with plans that it had copied from Soos plans; e. removing or modifying copyright management information from Soos plans; and f. acting in such other ways as may be proved at trial. 38. DXU's actions not in conformity with the standards of care and skill of the architectural profession constituted breaches of DXU's contractual obligations to Five Guys. 39. Therefore, if Five Guys is found liable to Soos for any of the underlying litigation's claims under the Copyright Act or the DMCA, DXU is liable to Five Guys for all or part of any judgment or recovery obtained by Soos. PRAYER FOR RELIEF WHEREFORE, Five Guys prays for judgment against DXU, granting Five Guys the following relief: A. This Court adjudge and decree that DXU breached its contractual obligations to Five Guys as alleged above; B. An award to Five Guys from DXU of such damages as it shall prove at trial that are adequate to compensate Five Guys for DXU's breach of contract, including any amounts Five Guys may be adjudged to owe to Soos in connection with the underlying litigation, plus any pre-and post-judgment interest; 00039827 6 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 7 of 8 PageID #:439 C. An award to Five Guys from DXU of all costs incurred, including attorneys' fees, incurred by Five Guys to defend the underlying litigation, to enforce DXU's contractual obligations, and to recover the amounts due to Five Guys from DXU; D. An accounting, if necessary, to determine the damages and other monetary amounts to be awarded to Five Guys; and E. Such other and further relief as the Court may deem proper and just. JURY DEMAND Pursuant to Federal Rule of Civil Procedure 38, Five Guys respectfully demands trial by jury of all issues so triable. Dated: February 21, 2018 Respectfully submitted, /s/ Kandis M. Koustenis Jerry William Boykin (admitted pro hac vice) Kandis M. Koustenis (admitted pro hac vice) PROTORAE LAW PLLC 1921 Gallows Road, Suite 950 Tysons, VA 22182 (p) 703-749-8507; (f) 703-942-6758 jboykin@protoraelaw.com kkoustenis@protoraelaw.com Kenneth Ulrich GOLDBERG KOHN 55 East Monroe Street, Suite 3300 Chicago, IL 60603 (p) 312-201-4000; (f) 312-332-2196 kenneth.ulrich@goldbergkohn.com Counsel for Five Guys Enterprises, LLC and Five Guys Operations, LLC 00039827 7 Case: 1:17-cv-06577 Document #: 40 Filed: 02/21/18 Page 8 of 8 PageID #:440 CERTIFICATE OF SERVICE I hereby certify that on February 21, 2018, I electronically filed a true and correct copy of the foregoing paper with the Clerk of the Court using the CM/ECF system, which will send electronic notification of such filing (NEF) to all registered users of the Court's CM/ECF system who have filed notices of appearance in this matter. /s/ Kandis M. Koustenis 00039827