     12-1385-cv
     Latimore v. NBC Universal Inc., et al.

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 9th day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                ROSEMARY S. POOLER,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       SONYA WHITTEN LATIMORE,
14                Plaintiff-Appellant,
15
16                    -v.-                                               12-1385-cv
17
18       NBC UNIVERSAL INC., REVEILLE, LLC, A
19       DELAWARE LIMITED LIABILITY COMPANY,
20       KIM FULLER, INDIVIDUALLY AND AS A
21       PARTNER OF MCCREARY & FULLER PUBLIC
22       RELATIONS CORPORATION,
23                Defendants-Appellees,
24
25       and
26
27       DOES, 1 THROUGH 50, INCLUSIVE, ANDREW
28       HILL, AN INDIVIDUAL, SHINE LIMITED,

                                                  1
 1   AN ENTITY OF UNKNOWN ORIGIN,
 2   TWENTIETH TELEVISION, INC., A
 3   DELAWARE CORPORATION, DANIEL TIBBETS,
 4   AN INDIVIDUAL, 25/7 PRODUCTIONS, LLP,
 5   A DELAWARE LIMITED LIABILITY COMPANY,
 6   BEN SILVERMAN, AN INDIVIDUAL, 3 BALL
 7   PRODUCTIONS, INC., NBC UNIVERSAL
 8   TELEVISION STUDIO,
 9            Defendants.
10
11   - - - - - - - - - - - - - - - - - - - -
12
13   FOR APPELLANT:             B. Joseph Barrett, Barrett &
14                              Winn, Esqs., Amityville, NY.
15
16   FOR APPELLEES:             Alan Robert Friedman (Joel R.
17                              Weiner, Katten Muchin Rosenman
18                              LLP, Los Angeles CA, on the
19                              brief), Katten Muchin Rosenman
20                              LLP, New York, NY for appellees
21                              NBC Universal Inc. and Reveille,
22                              LLC.
23
24        Appeal from a order of the United States District Court
25   for the Southern District of New York (Hellerstein, J.).
26
27        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
28   AND DECREED that the judgment of the district court be
29   AFFIRMED.
30
31        Sonya Whitten Latimore appeals from a order of the
32   United States District Court for the Southern District of
33   New York (Hellerstein, J.), denying her Rule 60(b) motion to
34   vacate the court’s judgment dismissing her complaint. We
35   assume the parties’ familiarity with the underlying facts,
36   the procedural history, and the issues presented for review.
37
38        Latimore argues for vacatur on the basis of Rule 60(b),
39   subsections (2), (3), and (6). Motions under subsections
40   (2) and (3) fail if the proffered evidence is irrelevant to
41   the ultimate outcome. See, e.g., United States v. Int'l
42   Bhd. of Teamsters, 247 F.3d 370, 392-95 (2d Cir. 2001)
43   (subsection (2)); Fleming v. N.Y. Univ., 865 F.2d 478, 485
44   (2d Cir. 1989) (subsection (3)).
45


                                  2
 1        Latimore’s allegedly new evidence could not possibly
 2   alter the outcome of the case. In the absence of direct
 3   evidence of copying, a copyright infringement plaintiff must
 4   show “(a) that the defendant had access to the copyrighted
 5   work and (b) the substantial similarity of protectible
 6   material in the two works.” Williams v. Crichton, 84 F.3d
 7   581, 587 (2d Cir. 1996) (quotation omitted and emphasis
 8   added). Thus, in the underlying merits case, Latimore had
 9   to establish that (a) NBC had access to her Phat Farm
10   treatment, and (b) there was substantial similarity between
11   her Phat Farm treatment and The Biggest Loser production.
12   This Court previously concluded that she failed to establish
13   either of those elements. See Latimore v. NBC Universal
14   Television Studio, 480 Fed. Appx. 649, 650 (2d Cir. May 23,
15   2012). The “new” evidence that Latimore presents in this
16   appeal pertains only to access and has no bearing on
17   substantial similarity.
18
19        Latimore offers only the weakest of responses to this
20   defect. Citing no case law, she argues that “[s]ubstantial
21   [s]imilarity is a question for the jury.” But “[t]he
22   question of substantial similarity is by no means
23   exclusively reserved for resolution by a jury.” See Peter
24   F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d
25   57, 63 (2d Cir. 2010). She also argues that the allegedly
26   tainted evidence on the issue of access biased the district
27   court against her on the entirely separate question of
28   substantial similarity. She fails to appreciate that this
29   Court (i.e., not the district court) already reviewed the
30   similarity of the works de novo, finding none. See
31   Latimore, 480 Fed. Appx. at 651 (“Although both ideas take
32   advantage of staples of reality television such as team-
33   based competition, elimination, and communal living, the way
34   in which The Biggest Loser combines and supplements these
35   common elements results in a concept and overall feel that
36   is entirely different than Latimore’s proposal.”).
37
38        Finally, a “Rule 60(b)(6) motion must be based upon
39   some reason other than those stated in clauses (1)-(5).”
40   United Airlines, Inc. v. Brien, 588 F.3d 158, 175 (2d Cir.
41   2009) (citation omitted). Latimore’s Rule 60(b)(6) motion
42   is merely duplicative of her claims under subsections (2)
43   and (3) and must therefore be dismissed for the same
44   reasons.
45
46


                                  3
1        Finding no merit in Latimore’s remaining arguments, we
2   hereby AFFIRM the judgment of the district court.
3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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