Section 411(a) Bites Plaintiff Twice

While a few courts, misled by Nimmer, ignore the Section 411(a) requirement that subject matter jurisdiction exists only if plaintiff has received an actual registration certificate or a rejection on institution of the suit, the vast majority follow the statute. An opinion issued on January 4th in the Eastern District of Wisconsin, Woodhaven Homes & Realty, Inc. v. Hotz, 2006 WL 30882, shows some courts may take the requirement too seriously.

The dispute involves a rather traditional infringement of architectural blueprints
by unauthorized construction of a home based on those plans. Plaintiff sued both the couple who gave the builder the plans, and the builder. The builder moved to dismiss for failure to comply with Section 411(a). Plaintiff stipulated to dismissal of the builder, but then amended the complaint after receiving a registration, adding the builder. The builder again moved to dismiss; the court granted the motion, holding that the “relevant jurisdictional fact, which cannot be changed by amending the complaint, is that registration of the copyright had not been made” when the complaint was originally filed. Plaintiff then re-filed its complaint; the builder moved to dismissal under FRCP 41(a). The court denied the motion, but sua sponte ordered plaintiff to pay attorney’s fees in connection with the prior two dismissals, and to really show its pique stayed the proceedings until the fees were paid up.

That was just the beginning of the mess, though, as years of litigation over motions for reconsideration, summary judgment, and appeal to the Seventh Circuit occurred. Ultimately, another $75,000 in fees were awarded in connection with the motion for summary judgment and the appeal. One cannot but wonder whether the final award was influenced by the 411(a) fiasco. While I understand the award for the first dismissal, I don’t for the second: it is quite common to permit plaintiffs to amend their complaint after they have received a registration.