U2logic, Incorporated v. American Auto Shield, LLC et al

Filing 65

MINUTE ORDER granting 55 Motion to amend the final pretrial order. ORDERED that the Final Pretrial Order 52 will be amended to delete plaintiff's claims related to the U2Weblink software. The parties may jointly file an Amended Final Pretrial Order reflecting the above amendment on or before Tuesday, February 17, 2015. By Judge Philip A. Brimmer on 2/11/2015.(tscha, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 13-cv-00419-PAB-CBS
U2LOGIC, INCORPORATED,
Plaintiff,
v.
AMERICAN AUTO SHIELD, LLC,
Defendant.
_____________________________________________________________________
MINUTE ORDER
_____________________________________________________________________
Entered by Judge Philip A. Brimmer
This matter is before the Court on plaintiff’s Notice of Dismissal with Prejudice of
Claims Regarding U2Weblink [Docket No. 55], which the Court converted to a motion to
amend the final pretrial order. Docket No. 56. Through its motion, plaintiff seeks to
amend the final pretrial order to delete the “U2W eblink claims” as described in Count
Two of Plaintiff’s First Amended Complaint [Docket No. 10]. Defendant has filed an
objection, which states, in part:
Defendant AAS does not object to amending the Final Pretrial Order in order
to delete all claims related to the U2Weblink software in general. However,
AAS files this Limited Objection in order to reserve the right to seek recovery
of attorney fees and costs incurred by AAS regarding U2's claims related to
U2Weblink pursuant to 17 U.S.C. § 505.
Docket No. 61 at 2, ¶ 3. Plaintiff replied, arguing neither party is entitled to statutory
attorneys’ fees because plaintiff did not register the copyrighted works before defendant
infringed and the Copyright Act “‘precludes an award of attorneys’ fees if the
copyrighted work is not registered prior to the commencement of the infringement.’”
Docket No. 63 at 1 (quoting Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696,
701-02 (9th Cir. 2008) (citing 17 U.S.C. § 412(2)).
The Court is not convinced that plaintiff is correct. See, e.g., Latin Am. Music
Co. v. Am. Society of Composers, Authors and Publishers (ASCAP), 642 F.3d 87, 90
(1st Cir. 2011) (“As a matter of law, [§ 412] does not apply to a defendant who is
successful in defending claims that it infringed.”). Nonetheless, the Court finds that it
would be inappropriate to rule on defendant’s entitlement to statutory attorneys’ fees on
the current record. Defendant remains free to raise this issue in a post-trial motion.
The Court will grant plaintiff’s request to amend the final pretrial order to delete the
U2Weblink claims. It is further

ORDERED that plaintiff’s motion to amend the final pretrial order [Docket No. 55]
is GRANTED. It is further
ORDERED that the Final Pretrial Order [Docket No. 52] will be amended to
delete plaintiff’s claims related to the U2Weblink software. The parties may jointly file
an Amended Final Pretrial Order reflecting the above amendment on or before
Tuesday, February 17, 2015.
DATED February 11, 2015.

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