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Abbey Dental Center v. Consumer Opinion LLC

United States District Court, D. Nevada

March 23, 2018




         Pending before the Court is the Motion for Attorneys' Fees, (ECF No. 59), filed by Defendant Consumer Opinion LLC (“Defendant”). Plaintiff Abbey Dental Center, Inc. (“Plaintiff”) filed a Response, (ECF No. 63), and Defendant filed a Reply, (ECF No. 67).

         Also pending before the Court is the Motion for Determination as to Entitlement to Costs and Attorneys' Fees, (ECF No. 71), filed by Defendant. Plaintiff filed a Response, (ECF No. 73), and Defendant filed a Reply, (ECF No. 74). For the reasons discussed below, the Court DENIES Defendant's Motions.[1]


         This 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 (“SLAPP”) 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).

         On June 20, 2017, Plaintiff filed a Motion to Dismiss without Prejudice Pursuant to Federal Rule of Civil Procedure (“FRCP”) 41(a). (ECF No. 48). Plaintiff sought to dismiss its own action because it was “no longer financially practicable to continue prosecuting this matter.” (Pl.'s Mot. to Dismiss 2:9, 2:21). On August 10, 2017, the Court granted Plaintiff's Motion to Dismiss and dismissed the case without prejudice. (See Order 6:5-6, ECF No. 51) (hereinafter “Prior Order”).

         That same day, Defendant filed a Motion to Alter or Amend Judgment, (ECF No. 54), where Defendant requested clarification on whether it can file a motion for attorneys' fees. On November 19, 2017, the Court granted Defendant's Motion and allowed it to file a separate motion for attorneys' fees. Defendant now has two pending Motions for Attorneys' Fees before the Court, (ECF Nos. 59, 71).


         To protect a defendant's interests when a dismissal is without prejudice, a court can condition a dismissal upon the payment of “appropriate costs and attorney fees.” Westlands Water Dist. v. United States, 100 F.3d 94, 97 (9th Cir. 1996). However, the “[i]mposition of costs and fees as a condition for dismissing without prejudice is not mandatory.” Id.; accord. Stevedoring Servs. of Am. v. Armilla Intern. B.V., 889 F.2d 919, 921 (9th Cir. 1989). Further, the Ninth Circuit has held that “Fed. R. Civ. P. 41(a)(2) in itself is not ‘specific statutory authority' for the imposition of sanctions against an attorney.” Heckethorn v. Sunan Corp., 992 F.2d 240, 242 (9th Cir. 1993).

         “Given the presumption that an attorney is generally not liable for fees unless that prospect is spelled out, it would be incongruous to conclude from the broad language of Fed.R.Civ.P. 41(a)(2) that an attorney could be sanctioned by authority of this rule alone.” Id. at 242; see also Int'l Union of Petroleum & Indus. Workers v. Western Indus. Maintenance, Inc., 707 F.2d 425, 428 (9th Cir. 1983) (“[A]bsent contractual or statutory authorization, a prevailing litigant ordinarily may not collect attorneys' fees.”). Thus, the district court must have an independent basis to impose fees and costs as a condition of voluntary dismissal. Heckethorn, 922 F.2d at 242.


         Defendant argues that it is entitled to $69, 912.50 in attorneys' fees pursuant to 15 U.S.C. § 1117(a) (“Lanham Act”) and Nevada Revised Statute (“NRS”) § 47.670(1)(a). (See Mot. for Att'ys' Fees 8:11-15, ECF No. 59); (see also Mot. for Determination as to Entitlement to Costs and Att'ys' Fees (“Mot. for Det.”) 1:24-26, ECF No. 71). The Court will address each in turn.

         A. Lanham Act

         Under 15 U.S.C. § 1117(a), a court may award reasonable attorneys' fees to the prevailing party in “exceptional cases.” Gracie v. Gracie, 217 F.3d 1060, 1068 (9th Cir. 2000) (quoting 15 U.S.C. § 1117(a)). While the statute does not define the term “exceptional, ” generally a trademark case is exceptional when the court finds that the defendant acted maliciously, fraudulently, deliberately, or willfully. Earthquake Sound Corp. v. Bumper Indus., 352 F.3d 1210, 1216 (9th Cir. 2003); Rio Props., Inc. v. Rio Int'l Interlink, 284 F.3d 1007, 1023 (9th Cir. 2002) (upholding an award of attorneys' fees under § 1117(a) based on finding that defendant acted “knowingly, maliciously, and oppressively, and with intent to . . . injure”). Exceptional circumstances further include when “a plaintiff's case is groundless, unreasonable, vexatious, or pursued in bad faith.” Interstellar Starship ...

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