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Live Face on Web, LLC v. Renters Warehouse, LLC

United States District Court, D. Minnesota

March 8, 2019

Live Face on Web, LLC, Plaintiff,
v.
Renters Warehouse, LLC, and Kevin Ortner, Defendants.

          ORDER DENYING MOTION FOR ATTORNEYS' FEES AND COSTS

          WILHELMINA M. WRIGHT, UNITED STATES DISTRICT JUDGE

         This matter is before the Court on Defendant Kevin Ortner's motion for attorneys' fees and costs. (Dkt. 63.) For the reasons addressed below, the motion is denied.

         BACKGROUND

         Plaintiff Live Face on Web, LLC (Live Face) develops software and video technology, including software that enables its customers to display videos of a “personal host” on their websites. The personal host serves as a virtual guide to online visitors. Defendants are Renters Warehouse, LLC, and its current chief executive officer (CEO), Kevin Ortner.

         Live Face initiated this copyright-infringement action against Renters Warehouse and Ortner on June 20, 2017. Live Face alleges that, in violation of its software copyrights, Defendants featured a “personal host” on the Renters Warehouse website.[1] Live Face's complaint asserts that Ortner was either the owner, CEO, or president of Renters Warehouse during the alleged infringement period.

         Renters Warehouse and Ortner responded to Live Face's discovery requests on December 29, 2017. Their responses revealed that Brenton Hayden, not Ortner, was the CEO of Renters Warehouse during the alleged infringement period. Live Face subsequently filed a motion to dismiss the claim against Ortner on February 9, 2018. In its supporting memorandum, Live Face insisted that its initial decision to name Ortner as a defendant was reasonable in light of Renters Warehouse's “confusing” and “inconsistent” public information.

         The Court granted Live Face's motion on August 28, 2018, and dismissed Live Face's claim against Ortner with prejudice. In doing so, the Court observed that “[a]lthough Live Face's argument . . . suggests that basic research was not undertaken, the proffered explanation for dismissal is plausible and the Court discerns no improper motive.” In addition, the Court denied Ortner's request for attorneys' fees and costs under Rule 68, Fed. R. Civ. P., but was otherwise silent with respect attorneys' fees and costs.[2]

         Ortner now seeks attorneys' fees and costs under the Copyright Act, 17 U.S.C. § 505 (Section 505), on the grounds that Live Face's copyright-infringement claim against him was meritless.

         ANALYSIS

         Live Face opposes Ortner's motion for attorneys' fees and costs and argues that the motion is untimely, Ortner is not a “prevailing party, ” and the equities do not favor an award. The Court addresses each argument in turn.

         I. Timeliness

         Live Face contends that Ortner's October 11, 2018 motion for attorneys' fees and costs is untimely in light of the August 28 Order dismissing Live Face's claim against Ortner with prejudice. A party's motion to recover attorneys' fees and costs is timely if it is “filed no later than 14 days after the entry of judgment, ” unless a statute or court order provides otherwise. Fed.R.Civ.P. 54(d)(2)(B). The Court entered judgment in this case on October 2, 2018. Although Live Face argues that the August 28 Order constitutes a “judgement, ” Live Face provides no legal basis for such a characterization. The 14-day deadline is properly measured from the October 2, 2018 judgment.

         Accordingly, the Court concludes that Ortner's October 11, 2018 motion for attorneys' fees and costs is timely.

         II. Classification as ...


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