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FONAR CORP. v. MAGNETIC RESONANCE PLUS

August 1, 1996

FONAR CORPORATION, Plaintiff, against MAGNETIC RESONANCE PLUS, INC., and Robert DOMENICK, Defendants.


The opinion of the court was delivered by: MOTLEY

 INTRODUCTION

 By Order dated March 27, 1996 (hereinafter "the March Order"), this court dismissed plaintiff's copyright and related state law claims for plaintiff's failure to describe its purportedly copyrighted computer software in such a way that would reveal the substance of the protected work. Subsequent to the March Order, defendants moved for costs, attorney's fees and sanctions related to defending against plaintiff's claims and for sanctions concerning plaintiff's improper and untimely request for reargument of the March Order. For the reasons set forth herein, defendants' request related to the underlying claims is stayed and the request related to the motion for reargument is granted.

 FACTS

 Although familiarity with the basic facts of the instant proceeding as set forth in this court's opinion, dated March 27, 1996, is assumed, See Fonar Corp. v. Magnetic Resonance Plus, Inc., 920 F. Supp. 508 (S.D.N.Y. 1996), the following is a description of the underlying facts relevant to the motions currently sub judice.

 Plaintiff Fonar Corporation, (hereinafter "plaintiff"), is engaged in the research, development, production and sale of Magnetic Resonance Imaging (MRI) systems used for medical diagnostic purposes. To maintain these systems, plaintiff has developed "Maintenance Software" for its systems' computers.

 The instant action for copyright infringement was commenced in 1993 against defendants Magnetic Resonance Plus and Robert Domenick, the corporation's president, (collectively, "defendants"). Defendants provide maintenance service to the owners of plaintiff's MRI systems and the Complaint alleged that defendants had copied plaintiff's purportedly copyrighted Maintenance Software.

  The instant suit was commenced soon after the Second Circuit issued a decision in a collateral proceeding affecting the copyrighted work in this case. In that decision, Fonar Corp. v. Deccaid Services, Inc., 983 F.2d 427 (2d Cir. 1993), the Second Circuit reversed and vacated several of the lower court's interlocutory orders enjoining the use of plaintiff's software because such orders relied upon and incorporated plaintiff's cursory definition of this software. As set forth in this court's prior decision in this case, the definition utilized by plaintiff in this collateral proceeding was, for all intents and purposes, identical to that employed by plaintiff in this case. See 920 F. Supp. at 510-511 and n.1.

 After a two year pre-trial period during which former counsel for plaintiff was sanctioned for engaging in evasive discovery practices, See Fonar Corp. v. Magnetic Resonance Plus, Inc., 162 F.R.D. 276 (S.D.N.Y. 1995), based upon the Second Circuit's ruling in Deccaid, defendants made a motion in limine to dismiss plaintiff's copyright claims as too vague to support a claim of copyright infringement.

 Through its submissions opposing the motion and at oral argument on the motion, plaintiff did not expand the definition of the software contained in the Complaint in any significant way. 920 F. Supp. at 511. Instead of providing a meaningful definition of the software given the Second Circuit's explicit rejection of the definition plaintiff was attempting to proffer, counsel for plaintiff promised to supply, at the close of trial, a "'proposed injunction form . . . running about 40 pages in length, single-spaced' which would set forth the programs covered by the Maintenance Software definition." Id. (quoting record)(alterations in original). It was also admitted that the computer program that purportedly comprised the copyrighted work was over 2,000 pages long, even though only a tiny fraction of such work was actually filed with the copyright office. Furthermore, plaintiff's counsel admitted that plaintiff could not point to the specific programs of the maintenance software that were allegedly infringed. Id. at 519 (citing record).

 Subsequent to the oral argument, defendants' counsel noted that deposition testimony appeared to contradict the definition of the maintenance software that plaintiff had proffered throughout the case. Id. at 511. In order to allow plaintiff the opportunity to clarify the issues regarding the apparent contradiction, the court converted defendants' motion to one for summary judgment. See Order, dated November 28, 1995.

 Plaintiff submitted the following "evidence" in an attempt to avoid summary judgment: 1) a list of purported "directories" of the computer programs; 2) a set of "print screens" that supposedly showed that defendants had copied the software; and 3) an affidavit from one of plaintiff's employees. These submissions failed to provide a more meaningful definition of the software. *fn1" Plaintiff also submitted a copy of the copyright registration itself, although plaintiff had admitted that this registration contained only a fraction of the programs that allegedly comprised the software.

 Based upon the cryptic nature of the definition of the software plaintiff chose to proffer even to the eve of trial -- a definition the Second Circuit had already described as "most elusive," Deccaid, 983 F.2d at 429 -- the court found that plaintiff had failed to raise a genuine issue of material fact in relation to the basic elements of its copyright case: i.e., ownership of a valid copyright and copying of the constituent elements of the copyrighted work. 920 F. Supp. at 516-520. Accordingly, plaintiff's claims of copyright infringement and the related state law claims of unfair competition were dismissed. Trial of defendants' anti-trust counterclaims, over which the court still retains jurisdiction, is scheduled for late October of this year.

 By motion dated April 10, 1996, defendants moved, pursuant to this court's inherent authority and 28 U.S.C. § 1927, for attorney's fees, costs and sanctions against plaintiff "for this baseless and harassive litigation and for pursuing the litigation in bad faith." (Defs.' Not. of Mot., dated April 10, 1996, at 1.) Two days later, by motion dated April 12, 1996, defendants also moved, pursuant to 17 U.S.C. § 505 and Fed. R. Civ. Proc. 54(d), for attorney's fees and costs for ...


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