       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206           2    Chirco, et al. v. Gateway Oaks, et al.       No. 03-1126
   ELECTRONIC CITATION: 2004 FED App. 0313P (6th Cir.)
               File Name: 04a0313p.06                                        _________________
                                                                                  COUNSEL
UNITED STATES COURT OF APPEALS
                                                         ARGUED: Stephen F. Wasinger, WASINGER, KICKHAM
              FOR THE SIXTH CIRCUIT                      & HANLEY, Royal Oak, Michigan, for Appellants. Douglas
                _________________                        P. LaLone, WARN, HOFFMANN, MILLER & LaLONE,
                                                         Auburn Hills, Michigan, for Appellees. ON BRIEF:
MICHAEL A. CHIRCO and             X                      Stephen F. Wasinger, WASINGER, KICKHAM &
DOMINIC MOCERI,                    -                     HANLEY, Royal Oak, Michigan, for Appellants. Douglas P.
                                                         LaLone, WARN, HOFFMANN, MILLER & LaLONE,
         Plaintiffs-Appellants, -                        Auburn Hills, Michigan, for Appellees.
                                   -  No. 03-1126
                                   -
           v.                       >                                        _________________
                                   ,
                                   -                                             OPINION
GATEWAY OAKS , L.L.C.;             -                                         _________________
ARROW BUILDING CO .;               -
DESIGN GROUP, L.L.C.; N &          -                       SILER, Circuit Judge. This copyright suit concerns the
D DEVELOPERS , L.L.C.;             -                     similarity of defendant Gateway Oaks’s condominiums to the
                                   -                     condominiums of plaintiffs Michael A. Chirco and Dominic
JOSEPH P. D’ANGELO ;
                                   -                     Moceri (collectively “Chirco”). With the district court still to
SALVATORE SARAFINO ;               -                     rule on his main injunction for copyright infringement claim,
M.C.S. ASSOCIATES, INC.; JIM -                           Chirco appeals the district court’s order canceling his “Notice
JONES; and CALVIN HALL ,           -                     of Lis Pendens.” We DISMISS Chirco’s appeal as moot.
       Defendants-Appellees. -
                                   -                       Chirco is in the Detroit real estate business. He previously
                                  N                      worked with Ronald E. Mayotte & Associates (“Mayotte”) to
      Appeal from the United States District Court       create architectural plans, from which he constructed the
     for the Eastern District of Michigan at Detroit.    Aberdeen Village condominiums. Chirco claims ownership
    No. 02-73188—Paul D. Borman, District Judge.         to the copyrighted plans pursuant to an exclusive license
                                                         agreement with Mayotte.
               Argued: August 10, 2004                     Gateway Oaks subsequently started constructing
                                                         condominiums that stand next to, and are allegedly
        Decided and Filed: September 14, 2004            substantially similar to, the Aberdeen Village condominiums
                                                         and the underlying plans. Chirco sued Gateway Oaks for
 Before: SILER, MOORE, and COLE, Circuit Judges.         copyright infringement, seeking to enjoin any further
                                                         development or use of Gateway Oaks, and asking for

                            1
No. 03-1126       Chirco, et al. v. Gateway Oaks, et al.       3    4     Chirco, et al. v. Gateway Oaks, et al.        No. 03-1126

impoundment and destruction of the architectural plans and             Under Article III, § 2, of the Constitution, we may only
condominiums.                                                       adjudicate actual ongoing cases or controversies. Generally,
                                                                    “a case is moot when the issues presented are no longer ‘live’
   Simultaneously with the complaint, Chirco filed a “Notice        or the parties lack a legally cognizable interest in the
of Lis Pendens” (i.e., a notice of an action pending against the    outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969).
condominiums). Michigan law authorizes the filing of a              An actual live controversy “must be extant at all stages of
notice of pendency of a lawsuit, or lis pendens, to render          review.” Arizonans for Official English v. Arizona, 520 U.S.
constructive notice of the suit to purchasers of real property.     43, 67 (1997). The Supreme Court has carved out a mootness
Mich. Comp. Laws § 600.2701. The Michigan lis pendens               exception for issues “capable of repetition, yet evading
statute “applies to suits affecting title to real property in the   review.” Southern Pac. Terminal Co. v. ICC, 219 U.S. 498,
federal courts.” Mich. Comp. Laws § 600.2735(1) (emphasis           515 (1911). In Weinstein v. Bradford, 423 U.S. 147 (1975),
added); see also 28 U.S.C. § 1964 (providing that lis pendens       it limited the “capable of repetition, yet evading review”
filed in federal court must comply with state law filing            doctrine to situations where: “(1) the challenged action was in
requirements). The district court canceled the lis pendens,         its duration too short to be fully litigated prior to its cessation
finding that the copyright suit, asking for impoundment and         or expiration; and (2) there was a reasonable expectation that
destruction of the buildings, did not affect the title to the       the same complaining party would be subjected to the same
Gateway Oaks condominiums.                                          action again.” Id. at 148. Chirco fails on the second element.
   Chirco appeals this order canceling the lis pendens. He            Arguably, Chirco has a reasonable expectation that he will
argues, as he did to the district court, that the lis pendens       be subjected to having a notice of lis pendens canceled again
statute extends to suits not only challenging title, but also to    in the future. This suit marks the third time a district court
suits which may affect “the possession, use or enjoyment of         has canceled Chirco’s notice of lis pendens regarding
real property.” See Mich. Comp. Laws § 600.2711 (providing          copyright infringement of the plans, and apparently he has
“[w]here a defendant sets up in his answer a counterclaim,          two other suits pending (although he has not sought a lis
upon which he demands an affirmative judgment affecting the         pendens in these cases). Regardless, he concedes that a future
title to, or the possession, use or enjoyment of real property,     notice of lis pendens against Gateway Oaks is unlikely.
he may file for record a like notice”) (emphasis added). We
express no opinion on the merits of Chirco’s argument                 Normally, parties raise the “capable of repetition, yet
because we find that the selling of all the Gateway Oaks            evading review” doctrine against the government, hence the
condominiums renders the lis pendens issue moot.                    second element’s language that the same complaining party
                                                                    would be subjected to the same action again. See Lee v.
  After Chirco filed this appeal, Gateway Oaks filed a motion       Schmidt-Wenzel, 766 F.2d 1387, 1390 (9th Cir. 1985). When
to dismiss the appeal as moot because it already finished           the suit involves two private parties, however, the
constructing the condominiums and sold all of them to third         complaining party must show a reasonable expectation that he
parties. Chirco concedes that any decision by this court            would again be subjected to the same action by the same
would have no impact on the instant case against Gateway            defendant. Pharmachemie B.V. v. Barr Laboratories, Inc.,
Oaks. Nonetheless, Chirco asks us to rule on the correctness        276 F.3d 627, 633 (D.C. Cir. 2002) (second element
of the district court’s order canceling his lis pendens because     “requires that the same parties will engage in litigation over
the issue is capable of repetition, yet evades review.              the same issues in the future”); Cruz v. Farquharson, 252
No. 03-1126            Chirco, et al. v. Gateway Oaks, et al.                 5    6     Chirco, et al. v. Gateway Oaks, et al.   No. 03-1126

F.3d 530, 534 (1st Cir. 2001) (“exception pertains only if                         of repetition, yet evading review” argument fails and we
there is some demonstrated probability that the same                               dismiss his appeal as moot.
controversy, involving the same parties, will reoccur”); Video
Tutorial Services, Inc. v. MCI Telecomms. Corp., 79 F.3d 3,                            APPEAL DISMISSED.
6 (2d Cir. 1996) (exception applies only if “these same
parties are reasonably likely to find themselves again in
dispute over the issues raised” in the appeal); Lee, 766 F.2d
at 1390 (“In order to apply the ‘capable of repetition’ doctrine
to private parties, there must be a reason to expect that there
will be future litigation of the same issue between a present
complaining party and a present defending party.”); Cent.
Soya Co., Inc. v. Consol. Rail Corp., 614 F.2d 684, 689 (7th
Cir. 1980) (need “likelihood that this issue will be the basis of
a continuing controversy between these two parties”); see
also Norman v. Reed, 502 U.S. 279, 288 (1992); Burlington
N. R.R. v. Bhd. of Maint. of Way Employes, 481 U.S. 429, 436
n.4 (1987).1 Because Chirco concedes that a future notice of
lis pendens against Gateway Oaks is unlikely, his “capable



    1
       Arguably, the Supreme Court has relaxed the same party
requirement in certain cases. In Honig v. Doe, 484 U.S. 305 (1988),
Justice Scalia pointed out in his dissent that Roe v. Wade, 410 U.S. 113
(1973), and so me election law decisions, e.g., Rosario v. Rockefeller, 410
U.S. 752 (197 3), differed from the C ourt’s normal m ootness
jurisprudence by “disp ensing with the same-party requirement entirely.”
484 U.S. at 335 (Scalia, J., dissenting). Justice Sca lia went o n to state that
subsequent cases arguab ly have narrowed these ca ses to “the ir facts, or to
the narrow areas of abortion and election rights.” Id. at 336 ; see also
Cruz, 252 F.3d at 534 n.4 (noting that the Roe Court failed to inquire
whether Roe herself was likely to become pregnant again, but finding it
unnecessary to “speculate o n how strictly the Sup reme Court will enforce
the ‘same p arties’ req uirement in future cases” ); McPherson v. Mich.
High Sch. Athletic Ass’n, 119 F.3d 453 , 465 n.3 (6th Cir. 1997) (Moo re,
J., dissenting) (noting that Justice Scalia’s suggestion in Ho nig that the
Supreme Court has not always limited the exception to situations
involving the same parties has never been accepted by a majority of the
Supreme Court). Because this case falls under neither the abortion nor
election law heading and the Sup reme Court has not issued a concrete
command relaxing the sam e party requirement, we decline to relax the
requirement in this case .
