ORDER GRANTING PLAINTIFF'S MOTION TO VOLUNTARILY DISMISS COPYRIGHT INFRINGEMENT CLAIM

ROSANNA MALOUF PETERSON, District Judge.

Before the Court is Plaintiff's Motion to Voluntarily Dismiss its Copyright Infringement Claim, ECF No. 69. The Court has reviewed the record and is fully informed.

Plaintiff moves to dismiss the copyright infringement claim alleged in its complaint, and is not opposed to this Court dismissing the claim with prejudice. See ECF No. 69 at 3. Despite Defendant's accusations that Plaintiff is acting with malicious intent, Defendant does not oppose the Motion. See ECF No. 70 at 2.

Defendant joins in Plaintiff's request for a voluntary dismissal with prejudice but goes beyond responding to the Motion to argue that it should now be granted attorney's fees as the "prevailing party." Id. at 3-4. In response to Defendant's request for leave to file a motion for attorney's fees, the Court grants Defendant leave to file a motion for attorney's fees if Defendant has additional support for such an award. However, in light of the fact that Defendant states its concerns over incurring costs defending this suit, this Court references the applicable law here to save Defendant from feeling to need to file motions that are likely futile.

Regarding costs and attorney's fees, the Copyright Act provides:

17 U.S.C. § 505. The Court's determination of fees under the Copyright Act is only reviewed for an abuse of discretion. See Cadkin v. Loose, 569 F.3d 1142, 1146-47 (9th Cir. 2009). The Ninth Circuit has determined that "`a "prevailing party" is one who has been awarded some relief by the court.' The key inquiry is whether some court action has created a `material alteration of the legal relationship of the parties.'" Cadkin v. Loose, 569 F.3d 1142, 1148 (9th Cir. 2009) (quoting Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep't of Health & Human Res., 532 U.S. 598, 603-604 (2001)).

Plaintiff voluntarily dismissed its copyright claim allegedly to focus on its patent infringement claim due to the insubstantial amount of damages that would result if they prevailed on the copyright claim. See ECF No. 77 at 4. Nonetheless, Plaintiff argues that its claim was viable and intimately tied to its remaining claim for patent infringement. Id at 4, 10. Defendant has not presented any evidence to the contrary.

Defendant still must defend against allegations of patent infringement that are associated with the claim that now has been voluntarily dismissed. Therefore, the legal relationship of the parties has not been materially altered. The issues simply are narrowed as this case progresses.

Accordingly, IT IS HEREBY ORDERED:

The District Court Clerk is directed to enter this Order and provide copies to counsel.