Attorney's Fees Awarded After Dismissal for Lack of Standing

Posted on July 28, 2008 by R. David Donoghue
Hyperquest, Inc. v. N’Site Solutions, Inc., et al., No. 08 C 483, --F. Supp. 2d--, 2008 WL 2446206 (N.D. Ill. Jun. 18, 2008) (Shadur, Sen. J.)

Judge Shadur granted defendants’ motion for attorney’s fees pursuant to 17 U.S.C. § 505, after previously dismissing plaintiffs’ copyright claims for lack of standing – click here for the Blog’s post about that opinion. Plaintiff agreed that defendants were not § 505 “prevailing parties” because the case was dismissed for lack of subject matter jurisdiction. But the Court explained that its opinion and the parties’ underlying briefs used imprecise language, citing an Abraham Lincoln pearl of wisdom:

If you call a tail a leg, how many legs has a dog? Five? No, calling a tail a let don’t make it a leg.

The case was not dismissed for lack of a properly registered copyright (subject matter jurisdiction), but because plaintiff lacked sufficient right to assert the copyright (standing). Because the case was dismissed with prejudice for lack of standing, defendants were prevailing parties and an attorney’s fee award was warranted.
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Prior Illinois Contacts do Not Create Jurisdiction

Posted on July 21, 2008 by R. David Donoghue
Hyperquest, Inc. v. Nugen I.T., Inc. and Dayle Phillips, No. 08 C 0485, Slip OP. (N.D. Ill. Jun. 18, 2008) (Norgle, J.)

Judge Norgle dismissed plaintiff’s copyright infringement case for lack of personal jurisdiction, pursuant to Fed. R. Civ. P. 12(b)(2). The Court agreed with plaintiff that the alleged injury was suffered in Illinois because plaintiff was an Illinois resident. But that was not enough to create personal jurisdiction. Plaintiff identified no supported facts showing that defendants intended to impinge upon an Illinois interest or otherwise purposely availed themselves of Illinois.

And the individual defendants’ contract with plaintiff in Illinois did not create personal jurisdiction either. All of the individual defendants’ contracts occurred before the corporate defendant was incorporated. And after incorporation, the defendants did no business in Illinois or with Illinois residents. Defendants did maintain a website, but plaintiff’s evidence regarding the website was insufficient.

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Court Adopts Defendants' Reply and Denies Jurisdiction

Posted on May 27, 2008 by R. David Donoghue

HyperQuest, Inc. v. N'Site Solutions, Inc., No. 08 C 483, 2008 WL 1968554 (N.D. Ill. May 1, 2008) (Shadur, Sen. J.).

Judge Shadur dismissed plaintiff's copyright infringement case for lack of subject matter jurisdiction. Plaintiff argued that it was the exclusive licensee of the copyright. But the Court held that plaintiff's license was nonexclusive because licensor retained various rights, including, the rights to:

  • Make derivative works;
  • Reproduce the work; and
  • Sell the copyrighted software.

But the Court's adoption of defendants' reply was its most notable feature:

To that end [defendants’] Reply addressed fully every aspect of [plaintiff’s] attempt to characterize itself as an exclusive licensee . . . and it completely scotched HQ's position. Because the Reply has covered the waterfront so thoroughly and persuasively, this Court finds it unnecessary to reiterate the analysis there piece by piece-instead it simply adopts [defendants’] presentation as proffered in the Reply.

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