Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 1 of 15 PageID #:327
`
`UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`
`Case No. 1:10 CV 03297
`
`Judge Joan B. Gottschall
`
`)
`
`
`DEFINED SPACE, INC.,
`)
`
`
`an Illinois corporation
`)
`
`
`
`)
`
`Plaintiff,
`
`
`
`)
`
`
`
`
`v.
`
`)
`
`
`
`
`
`
`)
`
`LAKESHORE EAST, LLC,
`)
`An Illinois limited liability company,
`MAGELLAN DEVELOPMENT GROUP, )
`LLC, an Illinois limited liability company,
`)
`NNP RESIDENTIAL, LLC, an Illinois
`)
`limited liability company,
`
`
`)
`and DOE I through DOE V,
`
`
`)
`)
`)
`
`Defendants.
`
`
`
`
`MEMORANDUM OPINION & ORDER
`
`Defendants Lakeshore East, LLC, Magellan Development Group, LLC, and NNP
`
`
`
`
`
`
`
`
`
`
`Residential, LLC (collectively, the “defendants”) have moved to dismiss Counts II–V, VIII, and
`
`IX of Defined Space, Inc.’s amended complaint under Federal Rule of Civil Procedure 12(b)(6).
`
`The defendants have also moved for a more definite statement with regard to Counts I and VI
`
`under Rule 12(e). The defendants’ motion to dismiss is denied as to Counts II, VIII, and IX but
`
`granted as to Counts III, IV, and V. The defendants’ motion for a more definite statement of
`
`Counts I and VI is denied.
`
`I.
`
`BACKGROUND
`
`
`
`Defined Space, Inc. (hereinafter, “DSI”) is the firm through which professional
`
`photographer David B. Seide conducts his business. In 2005, DSI entered into a series of
`
`agreements with the defendants to produce color photographs of the defendants’ properties. The
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 2 of 15 PageID #:328
`
`
`
`defendants planned to use these photographs as part of their marketing campaign to rent and sell
`
`their properties. The parties entered into a licensing agreement, in which the defendants agreed
`
`not to display DSI’s works without attribution. Although the defendants occasionally credited
`
`DSI’s work to DSI, sometimes they omitted this notice in their uses of DSI’s work. DSI called
`
`this lack of attribution to the defendants’ attention from time to time, but on occasion these
`
`omissions of attribution were not corrected.
`
`DSI brought this suit against the defendants seeking relief under the Digital Millennium
`
`Copyright Act, 12 U.S.C. § 1202; the Lanham Act, 15 U.S.C. § 1125(a); the Copyright Act, 17
`
`U.S.C. § 501; the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 Ill. Comp.
`
`Stat. 505/2, § 2; and the Illinois Uniform Deceptive Trade Practices Act, 815 Ill. Comp. Stat.
`
`510/2, § 2(2), (5), (12); for injuries it sustained when the defendants allegedly omitted agreed-
`
`upon copyright credit and notice in the republication of images and certain of DSI’s images
`
`which were posted on the defendants’ website. The defendants respond by arguing that most of
`
`DSI’s claims are preempted by the Copyright Act.
`
`II.
`
`LEGAL STANDARD
`
`
`
`Federal Rule of Civil Procedure 12(b)(6) enables a defendant to seek dismissal of a
`
`complaint that fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
`
`When considering a Rule 12(b)(6) motion to dismiss, the court must “tak[e] all well-pleaded
`
`allegations of the complaint as true and view[] them in the light most favorable to the plaintiff.”
`
`Zimmerman v. Tribble, 226 F.3d 568, 571 (7th Cir. 2000). Legal conclusions, however, are not
`
`entitled to any assumption of truth. Ashcroft v. Iqbal, --- U.S. ----, 129 S. Ct. 1937, 1949 (2009).
`
`To survive a Rule 12(b)(6) motion to dismiss, the complaint must provide “a short and plain
`
`
`
`2
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 3 of 15 PageID #:329
`
`
`
`statement of the claim showing that the pleader is entitled to relief” so as to “give the defendant
`
`fair notice of what the . . . claim is and the grounds upon which it rests.” Fed R. Civ. P. 8(a)(2);
`
`Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (quoting Conley v. Gibson, 355 U.S. 41, 47
`
`(1957)). Although “detailed factual allegations” are not necessary, “a plaintiff’s obligation to
`
`provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions,
`
`and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S.
`
`at 555. Rather, the plaintiff must provide enough factual allegations to state a claim for relief
`
`that is not only conceivable, but “plausible on its face.” Id. at 555, 570; see Swanson v. Citibank,
`
`N.A., 614 F.3d 400, 403 (7th Cir. 2010) (“[A] plaintiff must do better than putting a few words
`
`on paper that, in the hands of an imaginative reader, might suggest that something has happened
`
`to her that might be redressed by the law.”). “A claim has facial plausibility when the plaintiff
`
`pleads factual content that allows the court to draw the reasonable inference that the defendant is
`
`liable for the misconduct alleged.” Iqbal, 129 S. Ct. at 1949.
`
`In addition, Rule 12(e) enables a defendant to seek “a more definite statement of a
`
`pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the
`
`party cannot reasonably prepare a response.” Fed. R. Civ. P. 12(e). A Rule 12(e) motion must
`
`identify the “defects complained of and the details desired.” Id. A motion for a more definite
`
`statement should be granted “where the movant cannot reasonably be required to frame an
`
`answer or other responsive pleading to the pleading in question.” Fed. R. Civ. P. 12(e) advisory
`
`committee note. A motion for a more definite statement must “point out the defects complained
`
`of and the details desired.” Fed. R. Civ. P. 12(e). A more definite statement is required in
`
`claims involving contracts when the “defendants can only guess [as] to what conduct and
`
`
`
`3
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 4 of 15 PageID #:330
`
`
`
`contract(s) [an] allegation refers.” Jackson Nat’l. Life Ins. Co. v. Gofen & Glossberg, Inc., 882
`
`F. Supp. 713, 726 (N.D. Ill. 1995); see also Zaragon Holdings, Inc. v. Indian Harbor Ins. Co.,
`
`No. 08 CV 0111, 2008 WL 1883472 at *5 (N.D. Ill. Apr. 25, 2008).
`
`III. ANALYSIS
`
`A. Whether Count II Should Be Dismissed For Failure To State A Valid Lanham Act
`Claim.
`
`The defendants argue that Count II of DSI’s amended complaint, which alleges a Lanham
`
`
`
`Act claim, should be dismissed under Rule 12(b)(6) because Count II is preempted by the
`
`Copyright Act. The defendants contend that the claim DSI is bringing under the Lanham Act is
`
`essentially the same claim as Count VI of the complaint, which alleges copyright infringement
`
`for the same underlying acts. The defendants argue that the Lanham Act claim is preempted by
`
`the Court’s holding in Dastar v. Twentieth Century Fox, 539 U.S. 23 (2003). The defendants
`
`also cite to Natkin v. Winfrey, 111 F. Supp. 2d 1003 (N.D. Ill. 2000), and Cyber Websmith v.
`
`American Dental Ass’n, No. 09-CV-6198, 2010 WL 3075726 (N.D. Ill. Aug 4, 2010). In
`
`response, DSI cites to Cable v. Agence France Presse, 728 F. Supp. 2d 977 (N.D. Ill. 2010).
`
`
`
`In Dastar, Twentieth Century Fox had acquired the exclusive television rights to General
`
`Dwight D. Eisenhower’s written account of the allied campaign in Europe, “Crusade in Europe.”
`
`Fox arranged for a production of a television series based upon the book, but did not renew the
`
`copyright on the television series when it expired in 1977, leaving the series in the public
`
`domain. Dastar then took the original Crusade television series, copied the original beta cam
`
`tapes,1 edited them, and produced a “Campaigns” series that had a new opening sequence, credit
`
`
`1
`The phrase “beta cam tape” refers to the first home video system, Betamax, developed by Sony. For an
`explanation of the Betamax technology, see Sony Corp. of America v. Universal City Studios, Inc., 464 U.S. 417,
`422–24 (1984).
`
`
`
`4
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 5 of 15 PageID #:331
`
`
`
`page, and final closing different from the original “Crusade” series. Dastar then manufactured
`
`and sold the Campaigns video set as its own product without giving credit to Fox. Dastar, 539
`
`U.S. at 27. Fox brought multiple claims against Dastar, including a “reverse passing off claim”
`
`alleging that by not providing proper credit to the Crusade television series, Dastar violated
`
`§ 43(a) of the Lanham Act by passing off Fox’s product as Dastar’s own work.
`
`The Supreme Court held that the Copyright Act precluded Fox’s claims under the
`
`Lanham Act. Id. at 34–35. The Court began by noting that:
`
`The Lanham Act was intended to make “actionable the deceptive
`and misleading use of marks,” and “to protect persons engaged in
`. . . commerce against unfair competition.” While much of the
`Lanham Act addresses the registration, use and infringement of
`trademarks and related marks, § 43(a), 15 U.S.C. § 1125(a) is one
`of the few provisions that goes beyond trademark protection. As
`originally enacted § 43(a) created a federal remedy against a
`person who used in commerce either “a false designation of origin,
`or any false description or representation” in connection with “any
`goods or services.”
`
`
`Id. at 28–29 (internal citation omitted). The Court reasoned that if “origin” were read to mean
`
`the person or entity that authored the material, such a reading would effectively create a system
`
`of perpetual copyright as it would force those wishing to use uncopyrighted works in the public
`
`domain to credit the original authors or face liability under the Lanham Act. See id. at 36–37.
`
`Accordingly, this could cause serious practical problems for individuals who sought to use
`
`materials in the public domain in as much as discerning the original author of many such
`
`materials would require a “search for the source of the Nile and all its tributaries.” Id. at 35–36.
`
`The Court held that as used in the Lanham Act, “origin of goods” refers only to the producer of
`
`the tangible product sold in the marketplace—not the person or entity that originated the ideas.
`
`Id. at 31. Because Dastar was the producer of the tangible product sold on the marketplace,
`
`
`
`5
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 6 of 15 PageID #:332
`
`
`
`having edited the documentary, there was no “false designation of origin” and the Court
`
`dismissed Fox’s Lanham Act claim. The Court noted, however, that Fox’s claim alleging false
`
`designation of origin would have been sustained if Dastar had bought the Crusade videotapes and
`
`merely repackaged them as its own. Id.
`
`
`
`In Cyber Websmith, Cyber Websmith alleged that the defendants were operating websites
`
`for dental practices comprised of photographs copied directly from Cyber Websmith’s
`
`copyrighted website templates. Cyber Websmith, 2010 WL 3075726, at *1. These copies by the
`
`defendants were used in direct competition with Cyber Websmith’s business of providing
`
`website design and marketing services to dental practices. The court held that the Copyright Act
`
`preempted Cyber Websmith’s Lanham Act claim.
`
`After finding that the works in question were within the subject matter of the copyright
`
`statute, the court asked whether the claims asserted by the plaintiff were merely duplicative of its
`
`copyright claims. The court noted that to avoid preemption, an extra element must be
`
`incorporated in the claim that changes the nature of the action so that it is qualitatively different
`
`from a copyright infringement claim. Id. at *2 (citing Kluber Skahan & Assoc. v. Cordogen,
`
`Clark & Assoc., Inc., No. 08-CV-1529, 2009 WL 466812, at *10 (N.D. Ill. Feb. 25, 2009)).
`
`Although the plaintiffs argued that they had alleged extra elements beyond those required for
`
`copyright infringement, the court held that “the assertion of consumer confusion and deception,
`
`without more,” did not allow the plaintiff to sidestep preemption. Id. at *3. Furthermore, the
`
`court held that the plaintiff’s allegations derived from nothing more than the “inherent
`
`misrepresentation that accompanies the unauthorized copying and distribution of another’s
`
`
`
`6
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 7 of 15 PageID #:333
`
`
`
`copyrighted work.” Id. For these reasons, the court dismissed the Lanham Act claim from the
`
`plaintiff’s complaint.
`
`
`
`In Cable, Cable was an experienced real estate photographer who sold his photographs to
`
`a real estate firm, Garrison. Cable, 728 F. Supp. 2d at 978. Garrison agreed to limit the use of
`
`Cable’s works to marketing and to include a credit line prominently and clearly identifying Cable
`
`as the creator of the photos. Cable alleged that Agence France Presse (“AFP”) caused his images
`
`to be copied from Garrison’s website and used without his permission in an online photograph
`
`database. Id. Additionally, Cable alleged that AFP had deliberately removed Cable’s photo
`
`credit and copyright notice. Id. Cable alleged a violation of § 43(a) of the Lanham Act based
`
`partially upon the theory that by removing the copyright notice and information, AFP had used a
`
`false designation of origin and created the danger that the works at issue would be associated
`
`with AFP instead of Cable. Id. at 981.
`
`The court rejected AFP’s argument that Dastar precluded a claim under the Lanham Act.
`
`It noted that “the Dastar court limited its ruling in one important way—it stated that a claim
`
`under § 43(a) ‘would undoubtedly be sustained if Dastar had bought some of New Line’s
`
`Crusade videotapes and merely repackaged them as its own.’” Id. at 981 (quoting Dastar, 539
`
`U.S. at 31). The court stated, “This is what the plaintiff has alleged—that AFP took the
`
`plaintiff’s photos and repackaged them as their own without revision.” Id. Because Cable’s
`
`Lanham Act claim fit the description of the caveat in Dastar, the court declined to dismiss the
`
`claim.2
`
`
`2
`But see Agence France Presse v. Morel, 769 F. Supp. 2d 295, 308 (S.D.N.Y. 2011) (holding that the import
`of Dastar is that an author’s sole recourse in copyright for unauthorized use cannot be avoided by shoe-horning the
`claim into the Lanham Act).
`
`
`
`
`7
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 8 of 15 PageID #:334
`
`
`
`
`
`Here, the defendants assert that in the wake of Dastar, the Lanham Act claim alleged by
`
`DSI is preempted by the Copyright Act and should be dismissed. DSI responds by
`
`distinguishing Dastar as being primarily motivated by the public work nature of the film in
`
`question. Additionally, DSI points out that Dastar explicitly left open a claim under
`
`§ 43(a)(1)(B) under the Lanham Act. Dastar, 539 U.S. at 38; see 15 U.S.C. § 1125 (allowing a
`
`party to bring a claim alleging false designation of origin in commercial advertising or
`
`promotion). This, DSI suggests, makes Dastar wholly distinguishable from the case at hand and
`
`therefore it should not preclude DSI’s Lanham Act claim.
`
`As illustrated above, courts in this district addressing this issue post-Dastar are split.3
`
`Dastar rested heavily on the fact that the materials at issue were in the public domain and had
`
`been edited by Dastar prior to redistribution. In contrast, DSI alleges that the defendants
`
`appropriated and used its copyrighted works without DSI’s permission and without alteration.
`
`Thus, the Supreme Court’s admonition that the Lanham Act claim “would undoubtedly be
`
`sustained if Dastar had bought some of New Line’s Crusade videotapes and merely repackaged
`
`them as its own” is directly on point. Dastar, 539 U.S. at 31.
`
`Here, as in Cable, DSI alleges that the defendants took DSI’s photographs and passed
`
`them off as their own photographs without revision or proper accreditation. This case does not
`
`involve works in the public domain, or the fear of a perpetual copyright regime such as the
`
`Supreme Court faced in Dastar. Id at 37. Nor does it involve an instance where the defendants
`
`are alleged to have made modifications to the plaintiff’s works before displaying the works. This
`
`
`3
` Natkin, upon which the defendants rely, was decided three years before Dastar and is thus of limited
`persuasive value. See Do It Best Corp. v. Passport Software, No. 01-CV-7674, 2004 WL 1660814, at *18 (N.D. Ill.
`July 23, 2004) (declining to dismiss a Lanham Act claim and noting that Natkin is of limited persuasive value
`because it was decided before Dastar).
`
`
`
`8
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 9 of 15 PageID #:335
`
`
`
`court agrees with the analysis in Cable and finds that the facts here cleanly fit within the
`
`exception enunciated by Dastar. See Cable, 728 F. Supp. 2d at 981. Accordingly, this court
`
`denies the motion to dismiss the Lanham Act claim.
`
`B. Whether Counts III, IV, And V Should Be Dismissed As Preempted By The
`Copyright Act.
`
`The defendants argue that Counts III, IV, and V of DSI’s amended complaint, which
`
`
`
`allege violations of Illinois statutes prohibiting consumer fraud and deceptive business and trade
`
`practices, should be dismissed because they are preempted by the Copyright Act. The
`
`defendants contend that the claims that DSI is bringing under state law are essentially the same
`
`claims as Count VI of the complaint, which alleges copyright infringement for the same
`
`underlying acts. The defendants argue that these claims are preempted pursuant to the reasoning
`
`of Natkin and Chicago Style Productions, Inc. v. Chicago Sun Times, Inc., 728 N.E.2d 1204 (Ill.
`
`App. Ct. 2000).
`
`Section 301 of the Copyright Act states:
`
`[A]ll legal or equitable rights that are equivalent to any of the
`exclusive rights within the general scope of copyright are governed
`exclusively by this title. Thereafter, no person is entitled to any
`such right or equivalent right in any such work under the common
`law or statutes of any state.
`
`
`17 U.S.C. § 301(a). The Seventh Circuit has developed a two-part test to determine whether a
`
`state law claim is preempted by the Copyright Act. First, the court asks whether the work at
`
`issue is fixed in a tangible means of expression and whether it falls within the subject matter of
`
`copyright. ProCD, Inc. v. Zeidenberg, 86 F.3d 1447, 1453 (7th Cir. 1996). Next, the court looks
`
`to whether the rights asserted are equivalent to any of the rights specified in § 106 of the
`
`Copyright Act. Id.
`
`
`
`9
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 10 of 15 PageID #:336
`
`
`
`
`
`In Natkin, Natkin was a professional photographer who had taken pictures of Oprah
`
`Winfrey on the set of her show for approximately seven years. Natkin, 111 F. Supp. 2d at 1006.
`
`While Natkin did not have a written contract with Winfrey or her studio, he contended that he
`
`was an independent contractor and that the pictures he took were for publicity purposes only. Id.
`
`at 1007. When Natkin’s pictures were published in Winfrey’s book, Make the Connection,
`
`Natkin brought a suit alleging violations of Illinois’s statute prohibiting consumer fraud, 815 Ill.
`
`Comp. Stat. 505/2, deceptive trade practices, 815 Ill. Comp. Stat. 510/2, as well as asserting a
`
`claim of Illinois common law unfair competition. Id. at 1005. The court held that the plaintiff’s
`
`state law claims were no more than a re-allegation of the plaintiff’s copyright claims as an
`
`alternative theory of relief. Id. at 1013.
`
`The court reasoned that the works at issue were fixed in a tangible form as photographs
`
`and that they fell within the subject matter of copyright. Id. at 1014. The court pointed out that
`
`while the plaintiffs had been creative in arguing all of the harms they had allegedly suffered,
`
`their state law claims were asserting nothing more than a garden variety copyright violation for
`
`the defendants’ unauthorized use and false claims of copyright in some of the published pictures.
`
`Id. Additionally, the court noted that the relevant counts did not allege any new facts, but instead
`
`just “incorporate[d] all prior factual allegations and state[d] that those facts constitute violations
`
`of the respective state laws.” Id. at 1013 n.6. For this reason, the court granted the defendant’s
`
`motion for summary judgment and dismissed the state law claims. See also Cyber Websmith,
`
`2010 WL 3075726, at *2 (dismissing a state law claim of deceptive trade practices as preempted
`
`by the Copyright Act).
`
`
`
`10
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 11 of 15 PageID #:337
`
`
`
`
`
`In Chicago Style, Chicago Style was a production company that prepared a television
`
`show about local people and events. Chicago Style, 728 N.E.2d at 1205. Chicago Style pitched
`
`this idea to the Chicago Sun Times with the intent of tying the show into the newspaper, but the
`
`Sun Times informed Chicago Style that it was not interested. Shortly thereafter, the Chicago
`
`Sun Times began publishing a series of articles labeled “Chicago Style” that focused on the fine
`
`arts. Chicago Style filed a complaint alleging a violation of Illinois’s Consumer Fraud Act. Id. at
`
`1206 (alleging a violation of 815 Ill. Comp. Stat. 505/1). The Illinois Appellate Court held that
`
`the Illinois state law claim was preempted by the federal Copyright Act. The court explained
`
`that the allegation of a violation of the state law did not “constitute a qualitatively distinct
`
`element that would remove the claim from the scope of copyright.” Id. Thus, the court
`
`dismissed the state law claim as preempted by the Copyright Act.
`
`
`
`To begin with, this court finds it uncontroversial that the photographs at issue in this case
`
`fall within the subject matter of the Copyright Act. See 17 U.S.C. § 102(a)(5) (granting
`
`copyright protection to “pictorial, graphic, and sculptural works”). Additionally, this court
`
`agrees with the other courts in this district and the Illinois Appellate Court that the rights asserted
`
`under Illinois state law in this case are not qualitatively different from the rights conferred under
`
`the Copyright Act. See Cyber Websmith, 2010 WL 3075726, at *2 (finding a claim under the
`
`Illinois Uniform Deceptive Trade Practices Act preempted by the Copyright Act); Natkin, 111 F.
`
`Supp. 2d at 1014 (finding claims under the Illinois Consumer Fraud and Deceptive Business
`
`Practices Act, the Illinois Uniform Deceptive Trade Practices Act, and Illinois common law
`
`preempted by the Copyright Act); Chicago Style, 728 N.E.2d at 1208 (finding a claim under
`
`Illinois Consumer Fraud and Deceptive Business Practices Act preempted by the Copyright Act).
`
`
`
`11
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 12 of 15 PageID #:338
`
`
`
`Like the plaintiff in Natkin, DSI has not alleged any additional facts to support Counts III, IV,
`
`and V of its amended complaint. See Natkin, 111 F. Supp. 2d at 1013, n.6. The counts
`
`incorporate by reference all prior factual allegations and assert that these facts constitute
`
`violations of the respective state laws. Counts III, IV, and V therefore merely assert state law
`
`grounds of recovery for identical alleged actions by the defendants. For these reasons, this court
`
`finds that Counts III, IV, and V of DSI’s amended complaint are preempted by the Copyright Act
`
`and the defendants’ motion to dismiss these counts is granted.
`
`C. Whether DSI Should Provide A More Definite Statement Of Counts I And VI.
`
`The defendants have moved for a more definite statement under Federal Rule of Civil
`
`Procedure 12(e) with regard to Counts I and VI of DSI’s complaint. The defendants contend that
`
`each photograph was subject to a different licensing agreement with different terms and
`
`conditions. Therefore, without a more definite statement, the defendants argue that they are
`
`unable to respond to the complaint because they will not know whether the statute of limitations
`
`has run on various potential claims and they will not know whether a claim for a given
`
`photograph is settled by that photograph’s terms of use.
`
`Motions for a more definite statement are generally disfavored. Zaragon, 2008 WL
`
`1883472, at *5; see also Guess?, Inc. v. Chang, 912 F. Supp. 372, 381 (N.D. Ill. 1995); Moore
`
`v. Fidelity Fin. Servs. Inc., 869 F. Supp. 557, 559 (N.D. Ill. 1994). In Zaragon, Zaragon had
`
`purchased an insurance policy from Indian Harbor for apartment buildings that Zaragon owned.4
`
`Zaragon, 2008 WL 1883472, at *2. When the apartment buildings were damaged by heavy rain,
`
`Zaragon filed an insurance claim with Indian Harbor. Id. Indian Harbor denied this claim. Id.
`
`
`4
`The parties’ business relationship was not confined to the transaction at issue. Zaragon, 2008 WL 1883472
`at *2.
`
`
`
`12
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 13 of 15 PageID #:339
`
`
`
`Indian Harbor moved for a more definite statement regarding which insurance contract Zaragon
`
`was invoking in seeking relief. Id.
`
`The court denied Indian Harbor’s motion. The court pointed to the fact that Zaragon’s
`
`complaint clearly discussed the Indian Harbor insurance policy, the damage to Zaragon’s
`
`property, and the claims process. Id. Additionally, the court noted that Indian Harbor’s motions
`
`and reply brief indicated that it was “fully aware of which insurance policy [was] at issue in
`
`Zaragon’s complaint.” Id. The court pointed out that “if Indian Harbor believes that Zaragon
`
`does not meet the relevant legal requirements, it “may raise that issue in a motion for summary
`
`judgment.” Id.
`
`Here, DSI has provided a timeframe for when the works at issue were created. DSI has
`
`also attached copies of a subset of works which DSI currently believes comprise the works
`
`allegedly infringed upon by the developers. (See Am. Compl. at ¶ 10; ECF No. 1 Ex. B.) The
`
`defendants respond that DSI has not given them enough information to formulate a response
`
`because DSI has not specified the particular contracts for the particular works in question, or the
`
`particular dates that the infringement is alleged to have taken place. However, the defendants
`
`demonstrate their knowledge of the works at issue by attaching a detailed exhibit illustrating the
`
`disparate terms and conditions attached to each of the works. (See Defs’ Mem.; ECF No. 33 Ex.
`
`A.) Between the defendants’ records of contracts formed with DSI and DSI’s attachment of the
`
`pictures it believes are at issue in its complaint, this court finds that the defendants can
`
`“reasonably be required to frame an answer or other responsive pleading to the pleading in
`
`question.” Fed. R. Civ. P. 12(e) advisory committee note. Simply put, the defendants should be
`
`able to match up the pictures DSI has attached with the contracts for those pictures. For these
`
`
`
`13
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 14 of 15 PageID #:340
`
`
`
`reasons, this court denies the defendants’ motion for a more definite statement regarding Counts
`
`I and VI of DSI’s amended complaint.
`
`D. Whether Counts VIII And IX Should Be Dismissed As Improperly Pled.
`
`Lastly, the defendants have moved to dismiss Counts VIII and IX of DSI’s amended
`
`complaint as improperly pled as DSI fails to state an independent cause of action for injunctive
`
`relief, attorney fees, and punitive damages. Rather, DSI’s amended complaint prays for relief in
`
`Counts VIII and IX instead of including those prayers for relief in earlier counts in the
`
`complaint.
`
`The defendants do not cite any authority for the proposition that, as a matter of law,
`
`requests for remedies must be pled as part of earlier causes of action.5 The Seventh Circuit has
`
`“made clear in the past that ‘[i]t is not the obligation of [the] court to research and construct legal
`
`arguments open to parties, especially when they are represented by counsel,’ and [has] warned
`
`that ‘perfunctory and undeveloped arguments, and arguments that are unsupported by pertinent
`
`authority, are waived.’” Judge v. Quinn, 612 F.3d 537, 557 (7th Cir. 2010) (quoting United
`
`States v. Holm, 326 F.3d 872, 877 (7th Cir. 2003)). Additionally, this court notes that if Counts
`
`VIII and IX were dismissed for failure to state a claim, DSI would undoubtedly request leave to
`
`amend the complaint to properly state the prayers for relief within other causes of action.
`
`Substantively, this would not change the present posture of this case and would prompt both
`
`parties and this court to sift through more paper for little gain. See Adams v. Jackson, 218 F.
`
`
`5
`The defendants cite Indemnified Capital Investments, SA. v. R.J. O’Brien & Assocs., 12 F.3d 1406, 1413
`(7th Cir. 1993) as an instance where a claim for punitive damages was dismissed because it was not a substantive
`cause of action. However, this court notes that the court in Indemnified Capital clarified its ruling that, “Having
`dismissed all the other counts, we must also dismiss the punitive damages claim because it fails to state an
`independent cause of action.” Id. Here, this court has not dismissed all other counts of the complaint, so the
`comparison to Indemnified Capital is inapposite.
`
`
`
`14
`
`

`
`Case: 1:10-cv-03297 Document #: 42 Filed: 09/01/11 Page 15 of 15 PageID #:341
`
`
`
`Supp. 2d 1006, 1013–14 (N.D. Ind. 2002) (denying a motion to strike parties when it would not
`
`have changed the posture of the case).
`
`Finally, this court notes that the defendants’ arguments that DSI has not properly met its
`
`burden in showing that a preliminary injunction is necessary are premature. DSI has not yet
`
`moved for a preliminary injunction—instead it has merely pled such relief in its complaint. This
`
`court will address these arguments on the merits when DSI actually raises the issue.
`
`Accordingly, the defendants’ motion to dismiss Counts VIII and IX is denied.
`
`IV. CONCLUSION
`
`
`
`For the foregoing reasons, the defendants’ motion to dismiss Count II of DSI’s amended
`
`complaint is denied. Counts III, IV, and V of the amended complaint are dismissed as
`
`preempted by the Copyright Act. Additionally, the defendants’ motion for a more definite
`
`statement for Counts I and VI of the amended complaint is denied. Finally, the defendants’
`
`motion to dismiss Counts VIII and IX of DSI’s amended complaint is denied.
`
`
`
`ENTER:
`
`
`
`
`
`
`/s/
`
`
`JOAN B. GOTTSCHALL
`United States District Judge
`
`
`
`
`
`
`
`
`
`
`
`
`DATED: September 1, 2011
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`15