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Bernina of America, Inc v. Imageline

July 25, 2011

BERNINA OF AMERICA, INC., PLAINTIFF,
v.
IMAGELINE, INC., ISLANDVIEW TECHNOLOGIES LLC, ISLANDVIEW DESIGNS LLC, AND GEORGE
P. RIDDICK, III,
DEFENDANTS.



The opinion of the court was delivered by: Judge Milton I. Shadur

Magistrate Judge Martin C. Ashman

PLAINTIFF'S MOTION FOR AN AMENDED FINAL JUDGMENT ORDER AND AWARD OF ATTORNEYS' FEES

NOW COMES Plaintiff, Bernina of America, Inc. ("Bernina"), by and though counsel, and respectfully requests that the Court enter an amended final judgment order and award of attorneys' fees pursuant to 17 U.S.C. § 505.

At the status hearing held on June 28, 2011, the Court requested that Bernina submit a proposed amended judgment order reflecting the posture of the case in light of Defendant George P. Riddick, III's ("Riddick") recent representations to the Court that he does not personally maintain any legal rights to any images implicated in this litigation. Bernina submits that, based on the default judgment entered against Imageline, Inc., Islandview Technologies LLC, and Islandview Designs LLC (collectively, "Defaulting Defendants") and based on Riddick's representations to the Court, this case can be fully disposed of, as outlined below and reflected in Bernina's proposed amended final judgment submitted in conjunction with this motion.*fn1

Specifically, Bernina moves the Court to: (1) enter judgment against Riddick as to Count I of Bernina's Amended Complaint (declaratory judgment of non-infringement);*fn2 (2) deem as other just relief that Riddick personally be permanently enjoined (under the same terms as the injunction against the Defaulting Defendants) from making public allegations that Bernina has engaged in copyright infringement, including but not limited to making such statements to Bernina's network of qualified dealers; and (3) enter an award of attorneys' fees and costs in the amount of $146,727.53 against the Defendants, jointly and severally.

Should the Court deem this proposed amended final judgment order and request for attorneys' fees to be appropriate, Bernina would forego any further prove-up of damages associated with the judgment against the Defaulting Defendants on its state law claims for defamation, defamation per se, and tortious interference, and would also voluntarily dismiss without prejudice Counts II and III as they pertain to Riddick, individually. Such would resolve all issues in the case.

I.Final Judgment Against Riddick on Count I

In Count I of its Amended Complaint, filed November 23, 2010, Bernina sought a declaratory judgment of non-infringement holding that Bernina has not infringed upon any protectable creative authorship in copyright lawfully owned by Defendant Imageline Inc. and/or Riddick. Bernina was forced to bring this claim due to the numerous public allegations and representations to this Court made by Riddick, falsely suggesting that both he and Imageline possessed rights to copyrighted materials that had been infringed by Bernina. It has been Bernina's contention throughout this lawsuit that (1) neither Imageline nor Riddick possess any protectable rights in the individual underlying images contained in Imageline's copyright registrations; (2) Bernina has not infringed or otherwise engaged in any activities that are reserved for the owner of copyright pursuant to 15 U.S.C. § 106 with respect to Imageline's copyright registrations; and (3) Imageline's copyright registrations themselves are invalid because they were obtained as a result of misrepresentations made to the Copyright Office in the copyright applications.

On June 28, 2011, the Court entered final default judgment against Imageline on Count I. See Doc. No. 90. Thus, the only outstanding issue as to Count I is whether Riddick personally possesses any rights to images at issue in this litigation (as Riddick has previously represented to this Court) and, if so, whether such images were infringed by Bernina. At the Court's status hearing held May 25, 2011, the Court ordered Riddick to confirm in writing (and produce any supporting documentation) what rights, if any, Riddick personally possesses with respect to the images at issue in this litigation. Riddick responded in letters dated June 20, 2011, and June 27, 2011 (subsequently filed by Bernina, per the Court's request, see Doc. No. 88), confirming that he personally owns no legal or proprietary rights to any images at issue in this litigation and that all such images are owned by Imageline.*fn3 Accordingly, based on Riddick's representation to the Court, Riddick does not possess any protectable rights to images infringed by Bernina. It is appropriate, therefore, to amend the final judgment on Count I to include an entry of judgment against Riddick, personally.

II.Permanent Injunction Against Riddick

The existing default judgment order entered by the Court enjoins the Defaulting Defendants (along with any agent acting on behalf of the Defaulting Defendants who has actual notice of the injunction) from making defamatory allegations about Bernina inconsistent with the Court's judgment of non-infringement in favor of Bernina and from making contact with Bernina's authorized dealers for the purpose of making such false allegations or to interfere with Bernina's contractual relationships with those dealers. Riddick, as a member or shareholder of each of the Defaulting Defendants, is already bound under this injunction when acting in his capacity as an agent for any of the Defaulting Defendants. The Court should likewise find that in the interests of justice, Riddick should be similarly enjoined when acting in his personal capacity, particularly in light of his representation to the Court that he personally possesses no individual rights in any of the images at issue.

As the Court concluded when it preliminarily enjoined all of the Defendants under these terms, there is no prejudice to any of the Defendants by such an injunction because they are only enjoined from making representations or allegations inconsistent with the Court's judgment or from engaging in otherwise tortious conduct. Such relief against Riddick in his personal capacity is just in light of the Court's judgment in Bernina's favor on its declaratory judgment claim of non-infringement and based on the other circumstances in this case.

III.Award of Costs and Attorneys' Fees in Favor of Bernina

Bernina seeks an award of attorneys' fees against Defendants in the amount of $146,727.53, consisting of $135,522.00 in attorneys' fees and $11,205.53 in other recoverable expenses. Attached hereto as Exhibit A*fn4 is an affidavit from Norman K. Beck detailing each of these expenses and attaching supporting documentation, including time sheets with entries of the tasks performed for which Bernina is seeking recovery. Bernina is entitled to recover such fees as the prevailing party under the Copyright Act, 17 U.S.C. ยง 505 ("Section 505"). Additionally, the fees and expenses sought are reasonable and recoverable. As detailed below and in ...


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