infringed, the court noted that the “dismissal with respect to [the alleged copyright infringement
claim] would normally be without prejudice to allow the plaintiff to plead sufficient facts.” Jd. at
230. I choose to follow this suggested course.”

Defendants’ Motion to Dismiss is GRANTED. Plaintiffs’ complaint is dismissed without
prejudice but they are free to file an amended complaint correcting the aforementioned defect by
January 2, 2003. Defendants will then have until January 23, 2002 to file a revised motion to
dismiss or refile their old motion declaring that they are no longer relying on the misnomer as to
the location of the infringing work. Plaintiffs will then have until February 6, 2003 to file a
revised response or refile their old response. Defendants will then have until February 13, 2003
to file a revised reply or refile their old response. Because plaintiffs are free to file an amended
complaint which may or may not sufficiently allege a copyright infringement claim, I refrain
from addressing at this point whether the claim for unfair competition is preempted by the

Copyright Act.

ENTER:

Unit States ct ee? w

DATE: _| Joven 2od-

? The court in Sweet did not follow its own suggested course because copies of the
copyrighted material and alleged infringing material at issue demonstrated that the plaintiffs
“could not in good faith allege infringement” of the copyrighted material. /d. That is not the
situation here because there has not been enough factual development to make a finding on this
matter.



Count I: Copyright Infringement

Defendants argue that plaintiffs have failed to state a copyright claim because they have
failed to identify the infringed works, have failed to allege copying and access, and have failed to
allege publication. In order to state a claim of copyright infringement, a complaint need allege
only ownership, registration, and infringement. Sweet v. City of Chicago, 953 F.Supp. 225, 227
(N.D. Ill. 1996).' Other details of the claim may be obtained by discovery. Id.

Here, regardless of whether plaintiffs have sufficiently alleged ownership or registration,
there is a serious problem regarding their allegation of infringement. In response to the
defendants’ motion, plaintiffs admitted that their Complaint contained a misnomer identifying
the infringing work as being located at 2729 Gateshead Drive rather than its actual address at
3520 White Eagle Drive. Plaintiffs claim that this misnomer is not sufficient to establish
grounds for dismissal, but they are mistaken because “submissions in a response brief are not
enough to cure the defects in a deficient complaint.” Jd. at 230. By their own admission,
plaintiffs have thus conceded that their Complaint identifies as an infringement something that is
not an infringement.

Sweet, a case to which both sides refer repeatedly, has a solution to this dilemma. Faced

with a similar situation of a complaint not setting forth facts showing that the copyright was

' Tt appears that the legal standard set forth in Sweet for surviving a motion to dismiss a
charge of copyright infringement is slightly different than the standard set forth in Harris Custom
Builders, Inc. v. Hoffmeyer, 92 F.3d 517 (7th Cir. 1996), and Lee v. Deck the Walls, Inc,, 925 F.
Supp. 576 (N.D. Ill. 1996), for surviving a motion for summary judgment. Whereas a plaintiff
need only allege ownership, registration, and infringement of a copyright in order to avoid
dismissal, he needs to show ownership and copying of the constituent elements of the
copyrighted work in order to avoid summary judgment. Compare Sweet, 953 F. Supp. at 227
with Harris, 92 F.3d at 519 and Lee, 925 F. Supp. at 578.

3



Minute Order Form (06/97)

United States District Court, Northern District of Illinois

Name of Assigned Judge James B, Zagel Sitting Judge if Other
or Magistrate Judge than Assigned Judge
CASE NUMBER 02 C725 DATE 12/11/2002
CASE REINKE, ET AL vs. CLUXTON, ET AL
TITLE
Un the following box (a) indicate the party fiting the motion, ¢.g., plainuif?. defendant, 3rd party plainulf, and (b) state brielly the nature
MOTION: of the motion being presented.) .
DOCKET ENTRY:
(i) oO Filed motion of [ use listing in “Motion” box above.]
(2) Qa Brief in support of motion due
(3) a Answer brief to motion due . Reply to answer brief due__
(4) oO Ruling/Hearing on ____ set for at.
(5) i | Status hearing re-set for 2/27/2003 at 10:00 A.M...
(6) oO Pretrial conference[held/continued to] [set for/re-set for] on set for a
(7) oO Trial[set for/re-set for] on at
(8) Oo [Bench/Jury trial] [Hearing] held/continued to at
(9) o This case is dismissed [with/without] prejudice and without costs{by/agreement/pursuant to}
CUFRCP4(m) UO Local Rule 41.1 CUFRCP41{a)(1) 1 FRCP41(a)(2).

| [Other docket entry] | Motion (4-1) to dismiss is granted. Plaintiff is given leave to file an

amended complaint by 01/02/03. Motion to dismiss, if any, due by 1/23/02. Answer brief due

2/6/03. Reply to answer brief due 2/13/03, Status set for 12/17/02 is stricken.
dl) @ (For further detail see order attached to the original minute order. ]

No notices required, advised in open court.
No notices required.

Notices mailed by judge's staf.

Notified counset by telephone.

Docketing to mail notices.

Mail AO 450 form.

4 ny

Copy to judge/magistrate judge LUNN? |
courtroom chee]
pw deputy’s aT ns

41

MISE ST

Document
Number

nyinber of nytiyes

5 Pour
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docketing deputy. (J

fave mailed notice

Datestinny

Geived in “|
central Clerk's Office

=



UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

REINKE + ASSOCIATES ARCHITECTS
INC., an Illinois corporation, and
STEMBRIDGE BUILDERS, INC., an
Illinois corporation,

Plaintiffs,

v. No. 02 C 0725
Judge James B. Zagel
RICK CLUXTON, individually, CLASSIC
CARPENTRY, INC., an Illinois
corporation, JONATHAN A. BIERITZ,
individually and d/b/a JB ARCHITECTURE
GROUP, INC., and STEVEN SCHERRER,
individually,

Et

Bee
£C ° 2002

Defendants.

MEMORANDUM OPINION AND ORDER

Reinke + Associates Architects Inc. and Stembridge Builders have sued various
defendants for copyright infringement under the Copyright Act and unfair competition under the
Ulinois Consumer Fraud and Deceptive Business Practice Act. Defendants Bieritz and JB
Architecture Group have moved to dismiss under Federal Rule of Civil Procedure 12(b)(6) for
failure to state a claim. Defendants argue that: (1) both claims are precluded by their respective
statutes of limitations, (2) plaintiffs have failed to state a copyright infringement claim under the
Copyright Act, and (3) the Copyright Act precludes the unfair competition claim. Before I
address the unfair competition issue, I must address whether plaintiffs have a valid claim for

copyright infringement. But before I address either of these issues, I must first address the statute

[ie

of limitations issues, which may render the former issues moot.


Statute of Limitations

Defendants argue that respective statutes of limitations preclude both counts because the
claims arose more than three years prior to the filing of the complaint on January 29, 2002. The
Copyright Act mandates the commencement of an infringement action within three years
following the accrual of a cause of action. 17 U.S.C. § 507(b). Similarly, the applicable statute
of limitations of a claim of unfair competition in Illinois is three years. Kitchen Connection, Inc.
y. The Pampered Chef, Ltd., No 98C4321, 1999 WL 1101231, *5 (N.D. Ill. Dec. 1, 1999).
Although it may be true that the last possible infringing act by either Bieritz or JB occurred more
than three years before the filing date of this suit, the question is whether the plaintiffs could
have reasonably discovered the infringement prior to January 29, 1999. Although defendants are
correct that the facts of Taylor v. Meirick are quite different from the present case, I hold that the
case stands for the general equitable estoppel proposition that “it should be enough [and thus is
enough] to toll the statute of limitations that a reasonable man would not have discovered the
infringement.” 712 F.2d 1112, 1118 (7th Cir. 1983); see also Forster Music Publisher, Inc. v.
Price Stern Sloan, Inc., No. 93C4487, 1995 WL 239093, *2 (N.D. Ill. April 21, 1995) (finding
the same proposition in Taylor). Here, I must accept as true the plaintiffs’ allegation that they
did not discover the infringement until September of 1999, thus tolling the statute of limitations
until this date. Based on the limited factual development of this case to this point, there is
nothing in the record that suggests I am straining to find that a reasonable person in the plaintiffs’
shoes would not have discovered the infringement prior to when they claim to have discovered it.

Therefore, I hold that the respective statutes of limitations do not preclude both counts.