United States District Court, D. Minnesota
ORDER DENYING MOTION FOR ATTORNEYS' FEES AND
WILHELMINA M. WRIGHT, UNITED STATES DISTRICT JUDGE
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.
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.
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. Live Face's complaint asserts that
Ortner was either the owner, CEO, or president of Renters
Warehouse during the alleged infringement period.
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.
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.
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
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.
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
the Court concludes that Ortner's October 11, 2018 motion
for attorneys' fees and costs is timely.
Classification as ...