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BARRON'S EDUC. SERIES, INC. v. HILTZIK

December 23, 1997

BARRON'S EDUCATIONAL SERIES, INC., Plaintiff,
v.
GEORGE HILTZIK, N.S. BIENSTOCK, INC. and ALONA FRANKEL, Defendants.



The opinion of the court was delivered by: PLATT

 PLATT, District Judge.

 BACKGROUND

 This action concerns the publication of the well-known children's book, "Once Upon a Potty." In October 1996, plaintiff Barron's Educational Series, Inc. commenced this declaratory judgment action under the Copyright Act alleging that defendants threatened to commit copyright infringement.

 On December 31, 1996, defendants moved to dismiss the Complaint on two separate grounds. First, defendants argued that this Court lacked subject matter jurisdiction because Barron's action essentially was a contract claim which did not arise under the U.S. Copyright Act. Second, defendants contended that the action should be dismissed on forum non conveniens grounds and that Barron's claims should be tried in Israel under Israeli law.

 On June 24, 1997, this Court granted defendants' motion to dismiss for lack of subject matter jurisdiction and held that "Barron's [copyright] infringement claim is purely incidental to a determination of the parties' contract rights." On July 1, 1997, the Clerk entered Judgment dismissing the action.

 On December 12, 1997, defendants made a motion to amend the Judgment pursuant to Federal Rule of Civil Procedure 59(e) to include an award of attorney's fees to defendants in the amount of $ 42,058.00.

 DISCUSSION

 It is a long-standing principle in American jurisprudence that each party is responsible for its own attorney's fees in the absence of extraordinary circumstances or a statute providing otherwise. See Arcambel v. Wiseman, 3 U.S. 306, 3 Dall 306, 1 L. Ed. 613 (1796); Fleischer v. Paramount Pictures Corp., 329 F.2d 424, 426 (2d Cir. 1964), cert. denied 379 U.S. 835, 85 S. Ct. 68, 13 L. Ed. 2d 43 (1964) (counsel fees may not be included in a losing party's bill of costs except in the most extraordinary of instances).

 1. Attorney's Fees under 28 U.S.C. § 1919

 Pursuant to 28 U.S.C. § 1919, whenever an action is dismissed for want of jurisdiction, a court has discretion to order the payment of "just costs." Defendants argue that the phrase "just costs" includes the payment of attorney's fees. Defs.' Mem. at 4 citing 28 U.S.C. § 1919. Although the phrase "just costs" is not defined in § 1919, defendants cite cases where courts interpreted this phrase to permit a discretionary award of attorney's fees. Notably, however, those cases do not grant attorney's fees under § 1919, rather fees were granted under parallel statutes. Plaintiff correctly asserts that there is not a single reported case in the history of American jurisprudence in which attorney's fees have been awarded under § 1919. See Pl.'s Mem at 2.

 In asserting attorney's fees are "just costs" under § 1919, defendants rely heavily on Hylte Bruks Aktiebolag v. Babcock & Wilcox Co. 305 F. Supp. 803 (S.D.N.Y. 1969). In that case, Judge Cooper stated that permitting the taxing of "just costs" under § 1919 may be seen as enhancing the district court's discretion to tax extraordinary items of costs such as attorney's fees. Id. at 810. However, the district court did not award attorney's fees under § 1919 when it dismissed the appeal for want of jurisdiction because no extraordinary circumstances existed, i.e., there was no fraud or trickery practiced upon the court or other party. Id.

 Indeed, in Fleischer v. Paramount Pictures Corp., 329 F.2d 424, 426 (2d Cir. 1964), ...


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