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Engineering consultant dismissed from suit

Virginia Lawyers Weekly//September 25, 2023

Engineering consultant dismissed from suit

Virginia Lawyers Weekly//September 25, 2023//

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Where a company pleaded no facts plausibly showing that an engineering consultant either directly copied plaintiff’s drawings or that its drawings were substantially similar to plaintiff’s, the copyright infringement claim against the engineering consultant was dismissed.


Metropolitan Engineering Inc. alleges that four defendants — WDG Architecture PLLC; Girard Engineering Inc.; Renaissance Centro Tysons LLC and HOAR Construction LLC — copied and distributed plaintiff’s copyrighted engineering drawings. Plaintiff’s original complaint alleged copyright infringement against all four defendants (Counts One-Four), as well as breach of contract, unjust enrichment and quantum meruit (Counts Five-Nine).

On March 24, 2023, the court granted defendants’ motion to dismiss the copyright infringement claims in Counts One-Four without prejudice and with leave to amend. Defendants’ motion was denied with respect to Counts Five-Nine.

Plaintiff filed an amended complaint, alleging the same nine claims against defendants as alleged in the original complaint. Defendants have filed a motion to dismiss. They argue the amended complaint fails to cure the deficiencies present in plaintiff’s first complaint. Defendants also renew their arguments for dismissal of Counts Five-Nine.

Copyright infringement

Defendants first argue that plaintiff has failed to plead adequately a claim for copyright infringement against any defendant. “To establish a claim for copyright infringement,” a plaintiff must prove (1) that the plaintiff “possesses a valid copyright,” and (2) that the defendant “copied elements of [the plaintiff’s] work that are original and protectable.”

Defendants contend that plaintiff failed to allege facts showing that any defendant copied protected elements of plaintiff’s drawings. The court finds that plaintiff has sufficiently alleged in the amended complaint that WDG, HOAR and the owner copied plaintiff’s engineering drawings.

First, the amended complaint clearly alleges that WDG, HOAR and the owner had access to the copyrighted documents. Second, the amended complaint adequately alleges that the defendants created copies of plaintiff’s drawings which were substantially similar to the copyrighted documents.

However the copyright infringement claim against Girard must be dismissed because none of the allegations related to the copies involves Girard. Plaintiff must allege facts supporting either direct copying or an “inference of copying,” which requires showing access and substantial similarity. Plaintiff has not done either in the amended complaint with respect to Girard. Because plaintiff has not described Girard’s drawings at all or attached them to the amended complaint so that they can be compared to plaintiff’s drawings, there are no facts to support that Girard either directly copied plaintiff’s drawings or that Girard’s drawings were substantially similar to plaintiff’s.

Plaintiff nevertheless argues that Girard infringed plaintiff’s copyright by revising plaintiff’s drawings in order to create the permit revision drawings that Girard submitted to Fairfax County on May 27, 2021. According to plaintiff, these revised versions of the drawings are derivative works, and plaintiff, as the copyright holder, had the exclusive right to create derivative works from plaintiff’s copyrighted documents. However the amended complaint does not contain any facts supporting plaintiff’s new theory. Thus, plaintiff’s copyright infringement claim against Girard in Count Two must be dismissed.


Defendants argue they are not liable for copyright infringement because they had a license to use, alter and reproduce the copyrighted documents. The existence of a license to use copyrighted materials “constitutes an affirmative defense to an allegation of copyright infringement.” All facts necessary to resolve whether defendants had a license to reproduce the copyrighted documents do not appear on the face of the amended complaint. Thus, defendants’ license argument fails at this stage.

Equitable estoppel

Defendants argue that the copyright infringement claims must nonetheless be dismissed based on equitable estoppel. According to defendants, because plaintiff provided drawings to defendants in October 2020, six months after defendants allegedly stopped paying plaintiff in April 2020, plaintiff is now estopped from asserting copyright infringement here.

Defendants’ equitable estoppel argument fails. Equitable estoppel is an affirmative defense, and a motion to dismiss “cannot reach the merits of an affirmative defense” unless “facts sufficient to rule on an affirmative defense are alleged in the complaint.” Here, the facts alleged in the amended complaint do not establish that plaintiff is equitably estopped from bringing its copyright infringement claims.

Renewed arguments

Defendants renew their argument from their first motion to dismiss that plaintiff was not registered to perform engineering services in Virginia, which renders void the subcontract between plaintiff and WDG. This argument fails once again. The amended complaint alleges that plaintiff’s “services are performed by engineers licensed and registered in Virginia.” Thus, accepting the facts pled in the amended complaint as true, defendants’ argument that plaintiff’s contract with WDG is void must be rejected at this stage.

WDG, HOAR and Owner’s motions to dismiss denied. Girard’s motion to dismiss granted.

Metropolitan Engineering Inc. v. WDG Architecture PLLC, Case No. 1:22-cv-1413, Sept. 1, 2023. EDVA at Alexandria (Ellis). VLW 023-3-544. 13 pp.

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