V. CONCLUSION N'Site's Motion for Attorney's Fees should be denied. N'Site is not a prevailing party entitled to attorneys' fees under 17 U.S.C. § 505, nor does this Court have jurisdiction to make an award of attorneys' fees because HQ's Complaint was dismissed for lack of subject matter jurisdiction. Even if N'Site is a prevailing party, and even if this Court has jurisdiction to decide N'Site's Motion, Supreme Court and Seventh Circuit precedent dictate that N'Site should not be awarded attorneys' fees under these circumstances.

Because neither Mr. Toberoff nor PPC were parties to the 2008 Agreement, this relief did not and could not materially alter either of their legal relationships with DC. Therefore under 17 U.S.C. § 505 DC was not a “prevailing party” against Mr. Toberoff and PPC as to the 2008 Agreement either. /// Case 2:10-cv-03633-ODW-RZ Document 576 Filed 02/04/13 Page 15 of 26 Page ID #:37256 9 DEFENDANTS’ OPPOSITION TO DC’S MOTION FOR ATTORNEY’S FEES 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 c. DC’s Limited Success Does Not Justify A Fee Award Even if the well-settled “material alteration test” were ignored, and DC were somehow construed to be the “prevailing party,” this would still not support attorney’s fees, as the “degree of [DC’s] success” is quite limited.

Choyce, 2014 U.S. Dist. LEXIS 155438, at *16. Because Mr. Teixeira’s successful defense of the City’s objectively unreasonable claim furthered the goals of the Copyright Act, and there is a strong public interest in deterring the City and others from bringing such meritless actions in the future, an award of attorneys’ fees is appropriate under Section 505.

Filing the claim by notice, rather than by motion, snookered the Court into entering judgment on those erroneous grounds, and necessitated Movant’s motion to correct the clear error. Movant should be compensated pursuant to Federal Rule of Civil Procedure 54(d) and 17 U.S.C. § 505 for achieving an adjudication on the merits for all 939 alleged tortfeasors in this action. Should the Court grant Movant attorney’s fees, Movant, at that time, will submit a statement of costs in compliance with the rules of the Court. Dated: March 5, 2013 Respectfully, /s/ Jason E. Sweet ____________________________________ Jason E. Sweet (BBO# 668596)

IV. CONCLUSION Based on the foregoing, Plaintiff respectfully requests that the Court deny Defendant's Motion for Award of Attorney’s Fees Pursuant to 17 U.S.C. §505 in its entirety or, in the alternative, reduce the fee award to that which Defendant can reasonably demonstrate were fees expended on the copyright claim. Respectfully submitted, this 31st day of July, 2014.

Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980). Here, the provisions of 28 U.S.C § 1927 and 17 U.S.C. § 505 provide the narrow circumstances required. If the Court believes that the Defendant’s actions are not explicitly covered by any particular statute regarding the need for enforcement of settlement, the Plaintiff may rely upon the inherent power of the court.

Id.; see also Columbia Pictures Television, Inc. v. Krypton Broadcasting of Birmingham, 259 F.3d 1186, 1197 (9th Cir. 2001). Applying the above-mentioned factors, it is clear that the Employees should be awarded their attorneys’ fees and costs pursuant to 17 U.S.C. § 505: Degree of Success. Plaintiff sued a total of twenty- eight individuals and entities asserting a multitude of claims.

IN2N and the other moving defendants are not “prevailing parties” on any copyright claims brought by those co-defendants. There is no way to require Barton or Guice to pay the attorneys’ fees and costs incurred defending Marino’s copyright infringement claims under 17 U.S.C § 505. Second, it would be inequitable to make Barton or Guice pay for Marino’s misconduct.

v. Von Muller, 540 Fed. Appx. 103, 106 (3d Cir. 2013) (stating that parties can only recover under 17 U.S.C. § 505 if they are the prevailing party). The Supreme Court of the United States notes that when a district court is considering awarding costs and fees under 17 U.S.C. § 505, “[t]here is no precise rule or formula for making these determinations, but instead equitable discretion should be exercised.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (U.S. 1994) (quotation mark omitted).

B. Layer42 Is Not A Prevailing Party And Cannot Recover Attorney's Fees In order to recover attorney's fees, the Defendant must be a “prevailing party.” 17 U.S.C. Section 505. “Prevailing plaintiffs and prevailing defendants are to be treated alike, but attorney's fees are to be awarded to prevailing parties only as a matter of the court's discretion.”