IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

ARTHUR STROZEWSKI : 

 : 

 Plaintiff, : 

 : Case No. 10–CV-1128 

 v. : 

 : JUDGE ALGENON L. MARBLEY 

ROD’S WESTERN PLACE : Magistrate Judge Deavers 

 : 

 Defendant. : 

OPINION AND ORDER 

I. INTRODUCTION

This matter is before the Court on Plaintiff’s Motion for Leave to File Second Amended 

Complaint, (Dkt. 29). For the reasons stated herein, and the Court finding it in the interest of 

justice, Plaintiff’s Motion is hereby GRANTED. Defendant’s Motion to Dismiss Plaintiff’s 

First Amended Complaint, (Dkt. 34), is therefore DENIED as moot, without prejudice. 

II. BACKGROUND 

This case involves Plaintiff’s claim for copyright infringement under 17 U.S.C. § 501 and 

related state law causes of action regarding a “three stone horseshoe ring” design which 

Defendant allegedly copied, marketed, and sold a “knock-off” version of. At the time of the 

filing of Plaintiff’s First Amended Complaint, he did not own a federally registered copyright 

over the “three stone horseshoe ring” design. Defendant moved to dismiss Plaintiff’s First 

Amended Complaint under Rule 12(b)(6), arguing that it failed to state a claim upon which relief 

can be granted because Plaintiff lacked a copyright registration. (Dkt. 34 at 3.) 

After the Defendant filed its motion to dismiss, the U.S. Copyright Office approved 

Plaintiff’s application for a copyright to the “Three Stone Horseshoe Ring,” Reg. No. VA-1-777-

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411. (Dkt. 38-1.) Plaintiff was granted leave to supplement his Motion for Leave to File Second 

Amended Complaint to reflect the approval of his copyright, and filed a Supplemental Instanter 

requesting leave to file his Second Amended Complaint and reflect that his copyright is now 

fully registered. (Dkt. 41). 

III. LAW AND ANALYSIS 

Defendant opposed Plaintiff’s motion for leave to amend his Complaint a second time. 

(Dkt. 33.) Defendant alleged that Plaintiff’s proposed amendment would be “futile” because it 

would not survive a motion to dismiss under Rule 12(b)(6) in light of the statutory requirement 

of registration of the copyrighted work as a prerequisite to an infringement suit. See 17 U.S.C. § 

411(a) (stating, in relevant portion that “no civil action for infringement of the copyright in any 

United States work shall be instituted until preregistration or registration of the copyright claim 

has been made in accordance with this title”). Defendant’s argument was based on the fact that 

as of the filing of Plaintiff’s motion to amend the complaint, the Copyright Office had not yet 

granted Plaintiff’s application for copyright of the “three stone horseshoe ring” design. 

Defendant does not dispute the lawfulness of the Court’s jurisdiction over the case 

despite Plaintiff’s (prior) lack of a registered copyright. (Dkt. 33. at 4.) Although Plaintiff’s lack 

of copyright registration may indeed have precluded his success on the claims in his First 

Amended Complaint, the Court has had proper jurisdiction over the case, see Reed Elsiver, Inc, 

v. Muchnik, 130 S.Ct. 1237, 1245-46 (2010), and as Plaintiff correctly points out, if the Court 

were to deny his motion for leave to amend the complaint, Plaintiff would be able to simply refile the case as a new action. Moreover, Defendant has not demonstrated any prejudice that 

would result from the Court’s granting Plaintiff’s request. See U.S. v. Wood, 877 F.2d 453, 456-

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57 (6th Cir. 1989). Defendant will have full opportunity to raise any and all defenses and/or 

dispositive motions in response to Plaintiff’s Second Amended Complaint. 

IV. CONCLUSION 

Plaintiff’s Motion for Leave to File Second Amended Complaint is hereby GRANTED. 

Defendant’s Motion to Dismiss Plaintiff’s First Amended Complaint is therefore DENIED as 

moot, without prejudice. 

 

 IT IS SO ORDERED.

 

 s/Algenon L. Marbley 

 ALGENON L. MARBLEY 

 UNITED STATES DISTRICT JUDGE

DATED: December 13, 2011

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