Kay Bros. Enters., Inc. v. Parente¸ No. 16 C 387, Slip Op. (N.D. Ill. Oct. 3, 2016) (Ellis, J.).

Judge Ellis granted in part third party defendant R.A. Mifflin Architects (“Mifflin”) Fed. R. Civ. P. 12(b)(6) motion to dismiss defendants’ third party claims against Mifflin in this copyright dispute involving custom architectural plans.

According to the third party complaint, defendants entered an agreement for Mifflin to modify existing architectural plans from plaintiff Kay Brothers, giving defendants a non-exclusive. When defendants and Kay Brothers were unable to come to terms on building a home based upon the plans, Mifflin licensed the plans to Kay Brothers.

Of particular note, the Court held as follows:

• Defendants need not allege every element of breach of contract to have a valid claim. Mifflin was put on notice of the claim because defendant alleged an agreement and its breach.
• While the Court did not dismiss the contract claim, it noted concerns about whether defendants’ breach of contract claim against Mifflin was a proper third party claim or whether it should be plead as an affirmative defense to Kay Brothers’ copyright infringement claim.
• The Court dismissed defendants’ claim for indemnification of Kay Brothers’ copyright infringement claim based upon an implied indemnification clause in defendants’ agreement with Mifflin. Because Congress has not specifically created a right for indemnification for copyright claims, absent a written indemnity provision, there is no such right.
• The Court denied Mifflin’s motion as to defendants’ Illinois Consumer Fraud and Deceptive Business Practices Act count because it was insufficiently developed. It was only two paragraphs without any factual explanation of why the claims did not meet the Fed. R. Civ. P. 9(b) heightened pleading standard.