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Intellectual Property – Attorney’s Fees – ‘Prevailing Party’

A defendant who obtained an involuntary dismissal without prejudice of plaintiff’s suit alleging copyright infringement and violation of the Virginia Computer Crimes Act is not a “prevailing party” entitled to attorney’s fees pursuant to 17 U.S.C. § 505 and a Richmond U.S. District Court denies defendant’s motion for fees and costs.

The 4th Circuit has concluded that a voluntary dismissal without prejudice is insufficient to make a defendant a prevailing party because the plaintiff can refile the complaint. Here, although defendant benefited not from a voluntary dismissal without prejudice, but from an involuntary dismissal without prejudice, that distinction still fails to forge a material change in the legal relationship of the parties. Plaintiff certainly lost this battle, but the conflict between these parties may resurface if plaintiff chooses to refile his complaint. In fact, the 4th Circuit has stated that when additional litigation is possible, a dismissal without prejudice is “more like a draw than a victory.” The court therefore concludes that defendant is not a “prevailing party.”

Motion for attorney’s fees and costs denied.

Harris v. Lexjet Corp. (Spencer, J.) No. 3:09cv616, Jan. 11, 2010; USDC at Richmond, Va. VLW 010-3-031, 4 pp.

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