Killer Joe Nevada, LLC v. Does 1-20

Filing 48

MEMORANDUM Opinion and Order granting 46 Motion to Dismiss with Prejudice Both Plaintiff's Complaint Against Defendant Leigh Leaverton and Leaverton's Counterclaim filed by Killer Joe Nevada LLC. Leavertons Complaint of copyright infri ngement against Leaverton is dismissed with prejudice; Leavertons Counterclaim of non-infringement of Killer Joe Nevadas copyright is dismissed with prejudice. Defendant Leavertons request for an award of attorneys fees and costs as a prevailing part y pursuant to 17 U.S.C. § 505, as a condition of dismissal, is denied. Defendant Leaverton is dismissed from this action, with Killer Joe Nevada and Leaverton each to bear their own costs and fees. Signed by Judge Mark W Bennett on 7/17/2014. (des)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
KILLER JOE NEVADA, L.L.C.,
No. C 13-4036-MWB
Plaintiff,
vs.
LEIGH LEAVERTON, BRITTANY
BOLAN, and JASON FILLS,
Defendants.

MEMORANDUM OPINION AND
ORDER REGARDING PLAINTIFF’S
MOTION FOR DISMISSAL WITH
PREJUDICE OF BOTH ITS
COMPLAINT AGAINST
DEFENDANT LEAVERTON AND
DEFENDANT LEAVERTON’S
COUNTERCLAIM

___________________________
TABLE OF CONTENTS
I. 

INTRODUCTION........................................................................... 2 
A. 
Background .......................................................................... 2 
B. 
Killer Joe Nevada’s Motion To Dismiss ........................................ 5 

II. 

LEGAL ANALYSIS ........................................................................ 7 
A. 
Voluntary Dismissal Of Killer Joe Nevada’s Claim .......................... 7 
B. 
Dismissal Of Leaverton’s Counterclaim ........................................ 9 
C. 
Leaverton’s Entitlement To Fees And Costs As A
“Prevailing Party” ................................................................ 11 

III. 

CONCLUSION ............................................................................ 14 

This case arises from alleged infringement of a copyright for a motion picture by
transferring copies of that motion picture among peer-to-peer network users.

The

plaintiff originally brought the case against numerous “Doe” defendants identified only
by IP addresses. This case is before me on the plaintiff’s motion for voluntary dismissal,
with prejudice, of its claim of infringement against one subsequently identified defendant
and dismissal, as moot, of that defendant’s counterclaim for declaratory judgment of noninfringement. In response, the identified defendant states that she does not object to the
plaintiff’s dismissal of its claim against her, so long as the dismissal is with prejudice and
she is awarded attorney’s fees as the prevailing party on the plaintiff’s claim. She
contends that, if I do not both dismiss the plaintiff’s complaint against her with prejudice
and award her attorney’s fees, her counterclaim is not moot and should not be dismissed.
I.

INTRODUCTION
A.

Background

Plaintiff Killer Joe Nevada, L.L.C., alleges—in both its original April 26, 2013,
Complaint (docket no. 2) and its February 4, 2014, Amended Complaint—that it is a
California corporation engaged in the development and production of motion pictures for
theatrical exhibition, home entertainment, and other forms of distribution.

More

specifically, for present purposes, Killer Joe Nevada alleges that it is the owner of the
copyrights and/or the pertinent exclusive rights under copyright in the United States in
the motion picture titled “Killer Joe,” written by Tracy Letts, directed by William
Friedkin, and starring Matthew McConaughey, Emile Hirsch, and Juno Temple, among
others. In its original Complaint, Killer Joe Nevada identified twenty “Doe” defendants
by the Internet Protocol (IP) address assigned to that defendant by his or her internet
service provider (ISP) and the date and the time at which the infringing activity allegedly
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occurred. Killer Joe Nevada alleged that each defendant, without Killer Joe Nevada’s
permission or consent, has used, and continues to use, an online media distribution system
to reproduce and distribute to the public, including by making available for distribution
to others, the copyrighted motion picture, “Killer Joe.” Complaint, ¶ 14; Amended
Complaint (docket no. 32), ¶ 14.
Somewhat more specifically, Killer Joe Nevada alleges that each defendant
deliberately participated in a “swarm” and/or reproduced and/or distributed the same
seed file of “Killer Joe” in digital form with other defendants. In particular, Killer Joe
Nevada alleges that the defendants participated in a collective and interdependent manner
in a “swarm” with other defendants via the Internet for the unlawful purpose of
reproducing, exchanging and distributing portions of infringing copyrighted material
unique to the “swarm.” Complaint at ¶ 15; Amended Complaint at ¶ 15. Killer Joe
Nevada seeks a permanent injunction enjoining each defendant from directly or indirectly
infringing its rights in “Killer Joe” and any other motion picture that it owns or controls;
a finding of willful infringement of its copyright and injury to its business reputation and
business; actual or statutory damages; impoundment of all infringing copies of its works;
an award of attorney’s fees, litigation expenses, and other costs of this action, and such
other declaratory and injunctive relief as may be just and proper under the circumstances.
Complaint, Prayer For Relief; Amended Complaint, Prayer For Relief.
By Order (docket no. 9), filed July 15, 2013, Killer Joe Nevada was authorized to
serve Rule 45 subpoenas on the appropriate ISP with regard to each IP address it had
identified requesting disclosure of information sufficient to identify the name, address,
telephone number, email address, and media access control (MAC) address associated
with each IP address as of the relevant date(s). Killer Joe Nevada was denied an “openended” order that would automatically permit additional subpoenas to be served as Killer

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Joe Nevada discovered additional IP addresses that may be involved in allegedly
infringing activity.
After conducting such discovery, Killer Joe Nevada voluntarily dismissed, without
prejudice, one “Doe” defendant on November 14, 2013, and it voluntarily dismissed,
without prejudice, another 13 “Doe” defendants on January 31, 2014. Killer Joe Nevada
then filed, on February 4, 2014, an Amended Complaint (docket no. 32) identifying
defendants Leigh Leaverton, Nicholas Anderson, Brittany Bolan, Richard Brother, and
Jason Fills. On May 8, 2014, Killer Joe Nevada voluntarily dismissed, without prejudice,
that last remaining “Doe” defendant, and, on May 20, 2014, it voluntarily dismissed,
without prejudice, named defendants Anderson and Brother. It appears that defendant
Bolan was served with Killer Joe Nevada’s Amended Complaint on March 17, 3014, but
Bolan has filed no timely answer. It does not appear that defendant Fills has ever been
served.
In her Counterclaim, which is at issue here, Leaverton alleges the following:
24. Defendant Leaverton did not download the
movie at issue and did not infringe on Plaintiff’s alleged
copyright. Despite that fact, she has been sued in federal
court, has been forced to defend, and has been repeatedly
threatened by the Plaintiff with owing more than $150,000 in
damages plus attorneys’ fees along with other threats such as
having her computer and its contents invaded by so-called
forensic experts. Leaverton is nothing more than the
responsible party for an IP Address that Plaintiff contends was
involved in copyright infringement. Being the responsible
party for an IP address is far from proof of copyright
infringement, as courts have previously recognized.
25. Defendant Leaverton is suffering, and continues
to suffer[,] harm from Plaintiff’s allegations and seeks a
declaratory judgment that she did not download or upload
copyrighted material, did not infringe on Plaintiff’s alleged
copyright and is not liable to the Plaintiff.
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Answer and Counterclaim (docket no. 35), Counterclaim, ¶¶ 24-25. As relief, Leaverton
seeks dismissal, with prejudice, of Killer Joe Nevada’s Amended Complaint against her,
with all costs assessed against Killer Joe Nevada; a declaratory judgment of her noninfringement of Killer Joe Nevada’s alleged copyright and her non-liability for any such
infringement; attorney’s fees, expert witness fees, and costs associated with her defense;
and any and all further relief that the court deems just. Id. at Prayer.

B.

Killer Joe Nevada’s Motion To Dismiss

On June 11, 2014, Killer Joe Nevada filed the Motion For Dismissal With
Prejudice [Of] Both Plaintiff’s Complaint Against Leaverton And Defendant Leaverton’s
Counterclaim (docket no. 46) now before me. In essence, Killer Joe Nevada seeks
(1) dismissal, with prejudice, of its action against Leaverton, pursuant to Rule 41(a)(2)
of the Federal Rules of Civil Procedure; and, if that motion is granted, (2) dismissal of
Leaverton’s counterclaim, as non-justiciable for mootness and lack of subject matter
jurisdiction, pursuant to Rule 41(a)(2) and Rule 12(b)(1), and (3) denial of Leaverton’s
claims for additional relief.
More specifically, Killer Joe Nevada argues that dismissal of its claim against
Leaverton is appropriate, because its attorneys, in their professional judgment, accept the
truth and veracity of Leaverton’s attorney’s statements that Leaverton did not commit
copyright infringement, based on discussions with her attorney that occurred immediately
after the filing of Leaverton’s Answer and Counterclaim. Killer Joe Nevada represents
that it had previously offered settlement and dismissal without prejudice, but that
Leaverton rejected that offer. Killer Joe Nevada argues that dismissal is appropriate now
to avoid substantial costs and additional attorney’s fees for both parties. Killer Joe
Nevada also represents that it has evaluated the situation of numerous other similarlysituated defendants and, where appropriate, has dismissed its infringement claims without
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prejudice, where its attorneys determined that it was unlikely that the defendant in
question committed the infringement or determined that, for other reasons, continued
pursuit of its claims was not in the interest of their client or justice. Killer Joe Nevada
argues that Leaverton’s counterclaim should also be dismissed, with prejudice, because
there is no further threat of litigation, making Leaverton’s counterclaims moot and nonjusticiable as a matter of law. Killer Joe Nevada asserts that Leaverton made no efforts
to contact it for four months after it sent her a demand and settlement offer and that it
received no direct contact from Leaverton before she engaged counsel—indeed, Killer
Joe Nevada asserts that Leaverton’s attorney made no attempt to contact its attorneys
before filing Leaverton’s Answer and Counterclaim. Killer Joe Nevada argues that, if
Leaverton had attempted to contact its attorneys, this case would have been dismissed
before more than minimal attorney’s fees were incurred. Killer Joe Nevada denies that
it has engaged in any “sanctionable” conduct by initiating this lawsuit against the owners
of IP addresses identified as engaging in infringing activity; rather, it contends that its
allegation that the owners of the IP addresses engaged in the alleged infringement is
plausible.
In her Response (docket no. 47), filed June 30, 2014, Leaverton argues that
dismissal of Killer Joe Nevada’s claims with prejudice is appropriate, but that it is also
appropriate to condition that dismissal on the payment of her attorney’s fees as a
prevailing party. She contends that the dismissal of Killer Joe Nevada’s claims is not
based on some technicality, but on the fact that she did not infringe anyone’s copyright.
She contends that an award of attorney’s fees would encourage defendants to litigate
meritorious defenses to copyright infringement claims. She also contends that such an
award would deter Killer Joe Nevada, its attorneys, and others like them from bringing
suit against myriad defendants who merely owned IP addresses used to infringe a
copyright, knowing that ownership of an IP address does not necessarily mean—and, in
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fact, has little correlation to—infringing activity. Indeed, she contends that discovery
and trial will reveal that a “shockingly high number of individuals responsible for an IP
address where copyright infringement occurs are not the actual infringers.” Defendant’s
Resistance Brief (docket no. 47-1), 4-5. She contends that Killer Joe Nevada and others
should be deterred from attempting to coerce settlements or taking default judgments
based on such a tenuous relationship between ownership of an IP address and infringing
activity, especially where it appears that someone, like her, who actually seeks to defend
against those claims is likely to be dismissed from the lawsuit. In short, she contends
that this court should sanction Killer Joe Nevada by awarding her attorney’s fees and
costs “to prevent hundreds of innocent people from being sued in federal court for
copyright infringement they did not commit.” Id. at 9.
Killer Joe Nevada did not file a timely reply.
II.
A.

LEGAL ANALYSIS

Voluntary Dismissal Of Killer Joe
Nevada’s Claim

Rule 41 of the Federal Rules of Civil Procedure provides, in the part pertinent
here, as follows:
(a) Voluntary Dismissal.
***
(2) By Court Order; Effect. Except as provided
in Rule 41(a)(1), an action may be dismissed at
the plaintiff's request only by court order, on
terms that the court considers proper. If a
defendant has pleaded a counterclaim before
being served with the plaintiff’s motion to
dismiss, the action may be dismissed over the
defendant’s objection only if the counterclaim
can remain pending for independent
7

adjudication. Unless the order states otherwise,
a dismissal under this paragraph (2) is without
prejudice.
FED. R. CIV. P. 41(a)(2). The Eighth Circuit Court of Appeals has explained,
Our Court has previously opined on the considerations
to be taken into account by a district court prior to dismissing
under Rule 41(a)(2):
A decision whether to allow a party to voluntarily
dismiss a case rests upon the sound discretion of the
court. In exercising that discretion, a court should
consider factors such as whether the party has
presented a proper explanation for its desire to dismiss;
whether a dismissal would result in a waste of judicial
time and effort; and whether a dismissal will prejudice
the defendants. Likewise, a party is not permitted to
dismiss merely to escape an adverse decision nor to
seek a more favorable forum.
Hamm v. Rhone–Poulenc Rorer Pharm., Inc., 187 F.3d 941,
950 (8th Cir.1999) (internal citations omitted).
Thatcher v. Hanover Ins. Group, Inc., 659 F.3d 1212, 1213-14 (8th Cir. 2011).
As in Thatcher, the pertinent factors here support dismissal of Killer Joe Nevada’s
claims against Leaverton.

Killer Joe Nevada’s Motion To Dismiss came relatively

promptly after Leaverton filed her Answer and Counterclaim, so that little judicial time
and effort has been expended and any prejudice to Leaverton has been limited, where the
case has not progressed beyond the pleading stage. Id. at 1214. Although certain factors
in Thatcher counseled against allowing voluntary dismissal, there is no hint that Killer
Joe Nevada is seeking dismissal to seek a more favorable forum, where Killer Joe Nevada
seeks dismissal of its claim against Leaverton with prejudice. Compare id. at 1214. Nor
is there any likelihood that the dismissal is intended to escape an adverse decision, where
Killer Joe Nevada’s explanation for the dismissal is that it has simply concluded that
8

Leaverton is not responsible for the alleged infringement at her IP address.

See

id. (identifying pertinent factors as the movant’s explanation for its desire to dismiss and
whether the dismissal is merely to escape an adverse decision (quoting Hamm, 187 F.3d
at 950)).
Thus, on its face, dismissal of Killer Joe Nevada’s claim against Leaverton is
appropriate. The question is whether Leaverton’s counterclaim should remain pending
for independent adjudication.

B.

Dismissal Of Leaverton’s Counterclaim

Killer Joe Nevada contends that its voluntary dismissal of its infringement claim,
with prejudice, “moots” Leaverton’s counterclaim for declaratory judgment of noninfringement, depriving this court of subject matter jurisdiction over it, and requiring
dismissal of it, as well. Leaverton argues that her counterclaim is not “moot,” if the
dismissal of Killer Joe Nevada’s claim is not “with prejudice” and she is not awarded
fees as a prevailing party.
As the Eighth Circuit Court of Appeals has explained,
Mootness applies in cases “in which one or both of the parties
plainly lack a continuing interest, as when the parties have
settled or a plaintiff pursuing a nonsurviving claim has died.”
Friends of the Earth v. Laidlaw Environ. Servs., 528 U.S.
167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000). The
Supreme Court has written that “[a]s long as the parties have
a concrete interest in the outcome of the litigation, the case is
not moot notwithstanding the size of the dispute.” Firefighters
Local Union No. 1784 v. Stotts, 467 U.S. 561, 571, 104 S.Ct.
2576, 81 L.Ed.2d 483 (1984) (citing Powell v. McCormack,
395 U.S. 486, 496–98, 89 S.Ct. 1944, 23 L.Ed.2d 491
(1969)).
First Union Nat’l Bank ex rel. Southeast Timber Leasing Statutory Trust v. Pictet
Overseas Trust Corp., Ltd., 351 F.3d 810, 815-16 (8th Cir. 2003). The question is
9

whether the issues raised in a counterclaim, for example, are distinct or independent from
the issues raised in a dismissed claim. Id.
In the related context of patent infringement, the Supreme Court has recognized
that “[a] party seeking a declaratory judgment of invalidity presents a claim independent
of a patentee’s charge of infringement.” Cardinal Chem. Co. v. Morton Int’l, Inc., 508
U.S. 83, 96 (1993) (emphasis added). The same is not true of a claim of infringement
and a counterclaim of non-infringement, of a patent, trademark, or copyright, however.
See, e.g., Vieau v. Japax, Inc., 823 F.2d 1510, 1517-20 (Fed. Cir. 1987), rev’d in part,
Cardinal Chem. Co., 408 U.S. 83 (reversing Vieau only as to the continued viability of
a counterclaim of invalidity upon denial of an infringement claim).
Here, the only issue raised in Leaverton’s counterclaim was the obverse of the
issue raised in Killer Joe Nevada’s claim, whether she infringed—or, as alleged in her
counterclaim, did not infringe—Killer Joe Nevada’s copyright.
Counterclaim at ¶¶ 24-25 (quoted above).

See Answer and

She sought a declaratory judgment that

defeated Killer Joe Nevada’s claim, but she did not assert any independent claim of
wrongdoing by Killer Joe Nevada as a basis for different or additional relief. Thus,
Leaverton’s counterclaim of non-infringement is not distinct or independent of Killer Joe
Nevada’s claim of infringement, and her non-infringement counterclaim is moot. First
Union Nat’l Bank, 351 F.3d at 815-16. To put it another way, Leaverton’s “continuing
interest,” see id., is not in the issue of infringement/non-infringement, which is fully
resolved by Killer Joe Nevada’s dismissal of its infringement claim with prejudice, but
in the subsidiary issue of whether dismissal of Killer Joe Nevada’s claim entitles her to
attorney’s fees and costs as a “prevailing party.” That subsidiary issue would still arise,
even if Leaverton had not filed a counterclaim. I will turn to that subsidiary issue next,
but the immediate conclusion is that Leaverton’s Counterclaim, seeking a declaration of
non-infringement, is now moot, and must be dismissed for lack of subject matter
10

jurisdiction, upon the dismissal of Killer Joe Nevada’s claim against Leaverton for
infringement.

C.

Leaverton’s Entitlement To Fees And
Costs As A “Prevailing Party”

Dismissal of Killer Joe Nevada’s infringement claim against Leaverton pursuant
to Rule 41(a)(2) and of Leaverton’s non-infringement counterclaim as moot raises the
question of whether or not Leaverton is entitled to attorney’s fees and costs as a
“prevailing party.”

This is so, because “[a]s part of the remedy in a copyright

infringement action, ‘the court may also award a reasonable attorney’s fee to the
prevailing party.’” Pearson Educ., Inc. v. Almgren, 685 F.3d 691, 695 (8th Cir. 2012)
(quoting 17 U.S.C. § 505); 28 U.S.C. § 505 (also providing for “the recovery of full
costs by or against any party” other than the United States or a United States officer).
The parties do not dispute that Leaverton is a “prevailing party,” if dismissal of
Killer Joe Nevada’s infringement claim is with prejudice, and I agree. See, e.g., Cadkin
v. Loose, 569 F.3d 1142, 1147-49 (9th Cir. 2009) (joining all Circuit Courts of Appeals
to consider the question by holding that voluntary dismissal with prejudice of a plaintiff’s
infringement claims confers “prevailing party” status on a defendant under § 505). The
parties disagree, however, on whether dismissal should be conditioned upon an award to
Leaverton of her attorney’s fees and costs as a “prevailing party.”
As the Eighth Circuit Court of Appeals has explained,
The trial court’s “equitable discretion” to award attorney’s
fees to a prevailing party under § 505 is “to be exercised in
an evenhanded manner by considering factors such as whether
the lawsuit was frivolous or unreasonable, the losing litigant’s
motivations, the need in a particular case to compensate or
deter, and the purposes of the Copyright Act.” Action Tapes,
Inc. v. Mattson, 462 F.3d 1010, 1014 (8th Cir.2006) (citing
Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 & n. 19, 114
11

S.Ct. 1023, 127 L.Ed.2d 455 (1994)). We review for an
abuse of that discretion, which occurs “when a relevant factor
that should have been given significant weight is not
considered; when an irrelevant or improper factor is
considered and given significant weight; [or] when all proper
factors, and no improper ones, are considered, but the court,
in weighing those factors, commits a clear error of
judgment.” Fair Isaac Corp. v. Experian Info. Solutions,
Inc., 650 F.3d 1139, 1152 (8th Cir.2011) (quoting Kern v.
TXO Prod. Corp., 738 F.2d 968, 970 (8th Cir.1984)).
Pearson Educ., Inc., 685 F.3d at 695-96; Fogerty v. Fantasy, Inc., 510 U.S. 517, 52233 (1994) (holding that prevailing plaintiffs and prevailing defendants are to be treated
the same way under § 505). I conclude that the pertinent factors do not warrant an award
of attorney’s fees to Leaverton or conditioning the dismissal of the claim and counterclaim
between these parties upon such an award.
First, contrary to Leaverton’s contentions—involving innuendo, but no supporting
authority—Killer Joe Nevada’s reliance on IP addresses to identify alleged infringers was
not frivolous or unreasonable.

Id.

Indeed, the subpoena provision of the Digital

Millennium Copyright Act, 17 U.S.C. § 512(h), expressly provides for identification of
alleged copyright infringers from their IP addresses. See generally Recording Indus.
Ass’n of America, Inc. v. Verizon Internet Servs., Inc., 351 F.3d 1229 (D.C. Cir. 2003).
I also conclude that identification of “Doe” defendants by their IP addresses plausibly
alleges copyright infringement by the owners or persons responsible for those IP
addresses. See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007) (establishing the “plausibility” standard for pleading); Ashcroft v.
Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (reiterating the
“plausibility” standard for pleading). Specifically, I agree with the holdings of district
courts that, “[a]lthough [defendants] correctly assert[] that subscriber identity does not
always correspond with infringer identity, ‘the difficulty that the Plaintiff will ultimately
12

have in proving that the individual John Doe Defendant was the one who actually utilized
the IP address to commit the accused copyright infringement is not relevant in the context
of a motion to dismiss.’” Malibu Media, L.L.C. v. John Does 1-11, No. 12 Civ.
3810(ER), 2013 WL 3732839, *4 (S.D.N.Y. July 16, 2013) (quoting Patrick Collins,
Inc. v. John Doe 1, 12 Civ. 1154(ADS)(GRB), 2013 WL 2177787, *8 (E.D.N.Y. May
18, 2013)). Nor, I conclude, is it relevant to the reasonableness of claims of infringement
based on IP addresses for purposes of determining whether or not to award fees to a
prevailing defendant under § 505.

See Pearson Educ., Inc., 685 F.3d at 695-96

(identifying the first pertinent factor under § 505 as whether the losing party’s claim was
frivolous or unreasonable).
Leaverton is quick to impugn the motivations of Killer Joe Nevada and its attorneys
and to assert that deterrence of their conduct requires an award of her attorney’s fees and
costs. See Pearson Educ., Inc., 685 F.3d at 695-96 (identifying relevant factors as
including the losing litigant’s motivations and the need in a particular case to deter).
Once again, however, Leaverton does so based entirely on innuendo and supposition. I
am unwilling to find that Killer Joe Nevada’s motivation was suspect or that its conduct
requires deterrence in light of two facts: (1) Killer Joe Nevada’s plausible and proper
allegations of infringement by Leaverton, based on her ownership of or responsibility for
an IP address identified as involved in alleged infringement of Killer Joe Nevada’s
copyright, and (2) Killer Joe Nevada’s prompt voluntary dismissal of claims against
Leaverton, when further investigation satisfied Killer Joe Nevada that Leaverton did not
commit the alleged infringement.
Leaverton argues that she has nonetheless been subjected to attorney’s fees and
costs for which she should be compensated. See Pearson Educ., Inc., 685 F.3d at 69596 (including among relevant factors the need in a particular case to compensate the
prevailing party). Killer Joe Nevada may be right that Leaverton could have stopped this
13

litigation sooner, if she had responded to Killer Joe Nevada’s initial contacts and
settlement offers, rather than filing an Answer and Counterclaim as her first response.
On the other hand, Leaverton was entitled to respond within the bounds of the law by
asserting a counterclaim for declaratory judgment and was under no obligation to employ
a minimum-impact litigation strategy.

See id. at 696. What Leaverton was never

guaranteed, however, was that attorney’s fees generated by her strategy of choice would
be compensated. See id. (citing Fogerty, 510 U.S. at 534, as rejecting a proposed
construction of § 505 that would result in automatic recovery of attorney’s fees by the
prevailing party).
I conclude that the relevant factors do not require an award of Leaverton’s
attorney’s fees and costs under § 505, or conditioning dismissal of the claim and
counterclaim between Killer Joe Nevada and Leaverton on such an award,
notwithstanding Leaverton’s status as the “prevailing party” in this copyright
infringement action.
III.

CONCLUSION

Upon the foregoing,
1.

Plaintiff Killer Joe Nevada’s June 11, 2014, Motion For Dismissal With

Prejudice [Of] Both Plaintiff’s Complaint Against Leaverton And Defendant Leaverton’s
Counterclaim (docket no. 46) is granted, as follows:
Killer Joe Nevada’s Complaint of copyright infringement against
Leaverton is dismissed with prejudice;
Leaverton’s Counterclaim of non-infringement of Killer Joe
Nevada’s copyright is dismissed with prejudice.

2.

Defendant Leaverton’s request for an award of attorney’s fees and costs as

a “prevailing party” pursuant to 17 U.S.C. § 505, as a condition of dismissal, is denied.
14

3.

Defendant Leaverton is dismissed from this action, with Killer Joe Nevada

and Leaverton each to bear their own costs and fees.
IT IS SO ORDERED.
DATED this 17th day of July, 2014.

______________________________________
MARK W. BENNETT
U.S. DISTRICT COURT JUDGE
NORTHERN DISTRICT OF IOWA

15