Net Talk.Com, Inc. v. magicJack Vocaltec Ltd. et al

Filing 186

ORDER granting in part and denying in part 160 Motion for Bill of Costs; denying 166 Motion for Attorney Fees; Adopting 183 Report and Recommendations; denying 184 Appeal/Objection of Magistrate Judge Order to District Court. Signed by Judge Darrin P. Gayles on 2/9/2016. (hs01)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
CASE NO: 12-81022-CIV-GAYLES/TURNOFF
NET TALK.COM, INC.,
Plaintiff,
vs.
MAGICJACK VOCALTEC LTD.,
MAGICJACK LP, MAGICJACK
HOLDINGS CORPORATION, and
MICHELLE BORISLOW, personal
Representative of the Estate of Daniel
Borislow,
Defendants.
____________________________/
ORDER
THIS CAUSE came before the Court upon Defendants’ Motion for Attorney’s Fees
pursuant to 35 U.S.C. § 285 [ECF No. 166] and Defendants’ Bill of Costs [ECF No. 160]. Both
matters were referred to Magistrate William J. Turnoff for a report and recommendation.
Following a hearing on August 18, 2015, Judge Turnoff issued a Report and Recommendation
(“Report”) [ECF No. 183], recommending that the Court deny Defendants’ Motion for
Attorney’s Fees and grant in part and deny in part Defendants’ Bill of Costs. On December 4,
2015, Defendants filed their Objections to the Report and Recommendation (“Objections) [ECF
No. 184], objecting only to Judge Turnoff’s recommendation on the Motion for Attorney’s Fees.
When a magistrate judge’s “disposition” has been properly objected to, district courts
must review the disposition de novo. Fed R. Civ. P. 72(b)(3). If no party timely objects,
however, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s notes (citation

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omitted). The Court has carefully reviewed the written submissions, the record, and the
applicable law and, for the following reasons, the Objections are overruled.
Attorney’s Fees
The Patent Act permits courts to award reasonable attorney’s fees in “exceptional cases.”
35 U.S.C. § 285. In Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749 (2014),
the Supreme Court announced a new and more lenient standard for determining when a patent
case is considered exceptional. “[A]n ‘exceptional’ case is simply one that stands out from
others with respect to the substantive strength of a party’s litigating position (considering both
the governing law and the facts of the case) or the unreasonable manner in which the case was
litigated.” Id. at 1756.

Courts determine whether a case is exceptional “in the case-by-case

exercise of their discretion, considering the totality of the circumstances.” Id.
The Court, in its discretion, does not find that this is an exceptional case. Plaintiff’s
claims were not frivolous or objectively unreasonable. Id. at 1756 n. 6 (listing nonexclusive list
of factors that courts may consider in determining whether to award fees including
“'frivolousness, motivation, objective unreasonableness (both in the factual and legal
components of the case) and the need in particular circumstances to advance considerations of
compensation and deterrence.’”) (citation omitted).

In addition, Plaintiff’s conduct during the

litigation was not objectively unreasonable. As a result, Defendant is not entitled to fees under
the Patent Act.
Costs
Judge Turnoff recommended an award of $14,063.78 in costs. Defendant does not object
to the recommended award. See [ECF No. 184 at n.1]. Upon a review of the record, the Court
finds no clear error in Judge Turnoff’s recommendation regarding costs.

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CONCLUSION
The Court has reviewed the Report, the record, and the applicable law. In light of that
review, the Court agrees with the analysis, recommendations, and conclusions stated in the
Report. Accordingly, it is
ORDERED AND ADJUDGED that the Report [ECF No. 183] is AFFIRMED AND
ADOPTED. Defendants’ Motion for Attorney’s Fees pursuant to 35 U.S.C. § 285 [ECF No.
166] is DENIED. Defendants’ Bill of Costs [ECF No. 160] is GRANTED IN PART AND
DENIED IN PART. Defendants shall recover $14,063.78 in costs.
DONE AND ORDERED in Chambers at Miami, Florida, this 9th day of February,
2016.

________________________________
DARRIN P. GAYLES
UNITED STATES DISTRICT JUDGE
cc:

Magistrate Judge Turnoff
All Counsel of Record

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