Design Basics, LLC v. Eenigengurg Builders, Inc.

Filing 180

OPINION AND ORDER: Defendant Eenigenburg Builders, Inc.'s Motion for Costs, Including Attorneys' Fees 166 is GRANTED, and Eenigenburg is awarded a total of $416,492.88 in fees and costs, consisting of costs of $1,507.13, fees of $189,778.50 for counsel and paralegals at Garan Lucow Miller, and fees of $225,207.25 for counsel and paralegals at Overhauser Law Offices. The Clerk shall enter a judgment of dismissal with prejudice in which the award of fees and costs to defendant Eenigenburg Builders shall be reflected. Signed by Judge Philip P Simon on 9/28/2021. (bas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
HAMMOND DIVISION
DESIGN BASICS, LLC,
W.L. MARTIN HOME DESIGNS LLC,
PLAN PROS, INC., and
PRIME DESIGNS INC.,
Plaintiffs,
vs.
EENIGENBURG BUILDERS, INC.,
Defendant.

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2:16CV323-PPS

OPINION AND ORDER
After five protracted and difficult years of litigation, the Design Basics plaintiffs
sought leave to voluntarily dismiss this case without prejudice. [DE 163.] After
considering the history of the case, defendant Eenigenburg Builders’ opposition, and
the applicable law, I dismissed the action with prejudice. [DE 165.] The matter is now
before me on Eenigenburg’s motion for costs, including attorneys’ fees, a step that I
invited in my opinion on the dismissal. [DE 166.] Despite five extensions of time, the
Design Basics plaintiffs have not filed any response to the motion. The most recent
extension to September 27, 2021 was granted sua sponte and warned that if no response
was timely filed, the motion would be taken up as unopposed. [DE 178.]
Eenigenburg’s motion is well supported in law and fact, persuasively showing
that it is the prevailing party for purposes of an award of costs and fees under the

Copyright Act. [DE 166 at .] Applying the Fogerty1 factors, Eenigenburg demonstrates
conclusively that attorneys’ fees are appropriately awarded. [Id. at 3-4.] Design Basics’
determination to maintain the suit after the Lexington Homes decision2 meets the Fogerty
factors of frivolousness and objective unreasonableness. [Id. at 4-5; 8-9.] Design Basics’
frequently-noted “copyright troll” motive of mere profit from litigation meets the
second Fogerty factor, improper motive. [Id. at 6-8.] Imposing the substantial fee award
that is appropriate in this case advances “considerations of compensation and
deterrence,” as contemplated by the fourth Fogerty factor. [Id. at 9.]
Eenigenburg seeks a total of $416,492.88 in fees and costs, consisting of costs of
$1,507.13, fees of $189,778.50 for counsel and paralegals at Garan Lucow Miller, and fees
of $225,207.25 for counsel and paralegals at Overhauser Law Offices. [Id. at 9; DE 166-1,
166-2, 166-3.] The fees are supported by declarations of counsel, and are reasonable
both in the hourly rates requested [DE 166-2 at 1-2; DE 166-3 at 1] and in the time
expended over the course of five years of disputatious litigation. For all these reasons,
and in view of the lack of response over more than two months’ time, the unopposed
motion is well-taken and will be granted in full.
ACCORDINGLY:
Defendant Eenigenburg Builders, Inc.’s Motion for Costs, Including Attorneys’
Fees [DE 166] is GRANTED, and Eenigenburg is awarded a total of $416,492.88 in fees

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Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 (1994).

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Design Basics, LLC v. Lexington Homes, Inc., 858 F.3d 1093, 1105 (7th Cir. 2017).
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and costs, consisting of costs of $1,507.13, fees of $189,778.50 for counsel and paralegals
at Garan Lucow Miller, and fees of $225,207.25 for counsel and paralegals at Overhauser
Law Offices.
The Clerk shall enter a judgment of dismissal with prejudice in which the award
of fees and costs to defendant Eenigenburg Builders shall be reflected.
SO ORDERED.
ENTERED: September 28, 2021.

/s/ Philip P. Simon
UNITED STATES DISTRICT JUDGE

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