MICHAEL A. CHIRCO and DOMINIC MOCERI v. Gateway Oaks, L.l.c.

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

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

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No. 03-1126 Chirco, et al. v. Gateway Oaks, et al. 5
1Arguably, 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 Scalia went o n to state that
subsequent cases arguab ly have narrowed these ca ses to “their 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 same party requirement, we decline to relax the
requirement in this case.
F.3d 530, 534 (1st Cir. 2001) (“exception pertains only if
there is some demonstrated probability that the same
controversy, involving the same parties, will reoccur”); Video
Tutorial Services, Inc. v. MCI Telecomms. Corp., 79 F.3d 3,
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
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of repetition, yet evading review” argument fails and we
dismiss his appeal as moot.
APPEAL DISMISSED.

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