United States District Court, D. Nevada
M. Navarro, Chief Judge United States District Judge
before the Court is the Motion to Dismiss, (ECF No. 48),
filed by Plaintiff Abbey Dental Center, Inc.
(“Plaintiff”). Defendant Consumer Opinion LLC
(“Defendant”) filed a Response, (ECF No. 49), and
Plaintiff filed a Reply, (ECF No. 50). For the reasons
discussed below, the Court GRANTS
case arises out of Plaintiff's trademark dispute under
the Lanham Act, 15 U.S.C. §§ 1114, 1125, regarding
Plaintiff's registered trademark of “Abbey
Dental.” (First Am. Compl. (“FAC”)
¶¶ 9-10, ECF No. 28). On October 27, 2015,
Plaintiff filed its Complaint, (ECF No. 1), and on December
8, 2016, Plaintiff filed its First Amended Complaint.
Defendant filed Motions to Dismiss, (ECF Nos. 25, 30) for
both of Plaintiff's Complaints and alleged that
Plaintiff's suit is a Strategic Lawsuit Against Public
Participation under Nevada Revised Statute
(“NRS”) 41.635-70 (“Anti-SLAPP
Statute”). (See, e.g., Sec. Mot. to Dismiss
2:18-23, ECF No. 30). Additionally, Defendant filed a Motion
for Summary Judgment, (ECF No. 31).
20, 2017, Plaintiff filed the instant Motion to Dismiss
without Prejudice Pursuant to FRCP 41(a). (ECF No. 48).
Plaintiff seeks to dismiss its own action because, although
it alleges this case was originally filed in “a
good-faith effort to protect its trademark, ” it is
“no longer financially practicable to continue
prosecuting this matter.” (Pl.'s Mot. to Dismiss
41(a)(2) freely permits the plaintiff, with court approval,
to voluntarily dismiss an action so long as no other party
will be prejudiced. Fed. R. Civ. Pro. 41(a)(2); 9 Wright
& Miller, Federal Practice & Procedure: Civil, §
2364, at 165 (1971). Allowing the court to attach conditions
to the order of dismissal prevents defendants from being
unfairly affected by such dismissal. Id. Thus,
“in ruling on a motion for voluntary dismissal, the
District Court must consider whether the defendant will
suffer some plain legal prejudice as a result of the
dismissal.” Id. “Legal prejudice”
means “prejudice to some legal interest, some legal
claim, some legal argument.” Smith v. Lenches,
263 F.3d 972, 976 (9th Cir. 2001).
voluntary dismissal with prejudice with each party to pay its
own fees amounts to judgment on the merits, and in such a
case the defendant is technically the prevailing party.
Zenith Ins. Co. v. Breslaw, 108 F.3d 205, 207 (9th
Cir. 2007) (abrogated on other grounds). The prevailing party
on a Lanham Act claim may be entitled to reasonable
attorney fees in exceptional cases. 15 U.S.C. § 1117(a)
(“The court in exceptional cases may award
reasonable attorney fees to the prevailing party.”)
(emphasis added). Exceptional circumstances include when
“a plaintiff's case is groundless, unreasonable,
vexatious, or pursued in bad faith.” Interstellar
Starship Servs., Ltd. v. Epix Inc., 184 F.3d 1107, 1112
(9th Cir. 1999) (internal quotation marks omitted). Under the
Lanham Act, an award of attorney's fees is within the
district court's discretion. The District Courts decision
is reviewed under an abuse of discretion standard.
Stephen W. Boney, Inc. v. Boney Services, Inc., 127
F.3d 821, 825 (9th Cir. 1997).
Ninth Circuit has long held that the decision to grant a
voluntary dismissal under Rule 41(a)(2) is addressed to the
sound discretion of the District Court.” Hamilton
v. Firestone Tire & Rubber Co., Inc., 679
F.2d 143, 145 (9th Cir. 1982). In deciding whether to award
fees and costs relating to voluntarily dismissed claims, the
district court has “broad fact-finding powers” to
grant or decline sanctions and that its findings warrant
“great deference.” Smith v. Lenches, 263
F.3d 972, 978 (9th Cir. 2001).
seeks dismissal because “Plaintiff has made a careful
assessment of the Parties' financial resources and based
on that assessment, has determined that pursuit of the case
is no longer financially feasible.” (Pl.'s Mot. to
Dismiss 5:13-15). Defendant argues that Plaintiff's
dismissal should be denied, and if it is granted, “it
should be construed as a consent to the Anti-SLAPP Motion,
and thus should function as a dismissal with prejudice, and
with all requested attorneys' fees granted.” (Resp.
3:20-22, ECF No. 49). Defendant continues that “this is
not only a SLAPP suit, but [also] an ‘exceptional
case' under the Lanham Act, ” rendering
attorneys' fees necessary in this situation as well.
(Id. 3:22-23). The Court will first address
Defendant's arguments concerning the SLAPP suit and then
will address Defendant's arguments under the Lanham Act.
Strategic Lawsuit Against Public Participation
(“SLAPP”) is a meritless suit that seeks to use
“costly, time-consuming litigation” to chill a
person's constitutionally protected right to free speech.
See Metabolife Int'l, Inc. v. Wornick, 264 F.3d
832, 839 (9th Cir. 2001). When a plaintiff files a SLAPP suit
against a defendant, Nevada's Anti-SLAPP Statute allows
the defendant to file a special motion to dismiss in response
to the action. NRS 41.660(1). Additionally, NRS 41.670(2)
provides, “[i]f the court grants a special motion to
dismiss filed pursuant to NRS 41.660 . . . [t]he person
against whom the action is brought may bring a separate
action to recover: (a) [c]ompensatory damages; (b) [p]unitive
damages; and (c) [a]ttorney's fees and costs of bringing
the separate action.”
argues that the Court should award Defendant fees under the
Anti-SLAPP statute “as there is a presumption that a
defendant is the prevailing party in an Anti-SLAPP motion
when the plaintiff dismisses its claims prior to a hearing on
an Anti-SLAPP motion.” (Resp. 7:1-3). The Nevada
Supreme Court holds, however, that “a defendant may not
pursue an action for damages and attorney fees pursuant to
NRS 41.670(2) when the plaintiff voluntarily dismisses the
alleged SLAPP suit before a special motion to dismiss is
filed or granted.” Stubbs v.
Strickland, 297 P.3d 326, 329 (Nev. 2013) (emphasis
added). Although Defendant has not pursued a specific action
for damages, it is essentially doing so here in seeking
attorneys' fees pursuant to the Anti-SLAPP Motion.
(See Resp. 3:22; 3:25-27 n.1 (asserting that
“attorneys' fees are mandatory when a party brings
a special motion to dismiss under NRS 41.660 and
prevails”)). The Court holds that pursuant to the
Nevada Supreme ...