Opinion
Bonpane & Prince, of Hollywood, Cal., for plaintiff.
Frederick Leuschner and Richard H. Graham, both of Hollywood, Cal., for Montgomery Ward & Co., Inc.
HOLLZER, District Judge.
It appearing that on December 13, 1938, plaintiff filed this action for damages for alleged infringement of copyright, that on January 25, 1939, defendants filed motions to dismiss, and for a further and better statement and particulars and for attorneys' fees, one of the grounds for the motions to dismiss being that plaintiff had not stated a claim upon which relief could be granted, in that the complaint failed to allege that publication with notice of copyright had been made of the work alleged to be infringed by defendants; and
It further appearing that briefs were filed by the parties hereto, and a hearing was had on said motions to dismiss, whereupon the motion of defendant Montgomery Ward and Company, Inc., to dismiss the first cause of action, and the motion of defendant Columbia Broadcasting System, Inc., to dismiss the second cause of action, were granted without leave to amend, and plaintiff was, on March 25, 1939, ordered to file within twenty-one days thereafter a further and better statement of the nature of his claim, with respect to whether or not he published his work with notice of copyright, and whether he deposited in the Copyright Office a published copy of his work containing a notice of copyright; and
It further appearing that, without filing such further and better statement, plaintiff, on April 6, 1939, filed a motion to dismiss his complaint without prejudice, and with costs taxed against the plaintiff; and
It further appearing that on July 14, 1939, after counsel for both parties had filed briefs, and after a hearing had been had, the court granted plaintiff's motion to dismiss, with allowance of costs to the defendants and such attorneys' fees as might thereafter be awarded, the court reserving jurisdiction to pass upon the matter of attorney's fees; and
It further appearing that by reason of the filing and prosecution of this action defendants have been wrongfully subjected to the expense of legal services rendered by counsel on their behalf:
The Court concludes that this action was filed without justification, either in law or in fact, and that each of said defendants is entitled to a reasonable attorney's fee.
For the reasons set forth in the memorandum of conclusions this day filed, it is ordered that defendant Montgomery Ward & Company and defendant Columbia Broadcasting System, Inc., are each allowed the sum of $400 as attorney's fees, in addition to all other costs herein incurred.