Joe Hand Promotions, Inc. v. Soto et al

Filing 35

MEMORANDUM DECISION AND ORDER denying 30 Motion for Attorney Fees. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
JOE HAND PROMOTIONS, INC.,
Case No. 4:13-cv-00062-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
JOSE SOTO, RAMIRO ORTEGA,
MARIA S. HERNANDEZ AND
YESENIA R. HERNANDEZ,
individually and as alter egos of business
entity PUERTO VALLARTA, INC.,
Defendant.

INTRODUCTION
Before the Court is the motion of defendants Jose Soto, Ramiro Oretega, Yesenia
R. Hernandez, and Puerto Vallarta, Inc. (hereinafter “Puerto Vallarta defendants”), for
attorney fees and costs against plaintiff Joe Hand Promotions, Inc. (hereinafter “Joe
Hand”)
BACKGROUND
Joe Hand sued Puerto Vallarta defendants for common-law conversion and under
47 U.S.C. §§ 553 and 605 for the unauthorized showing of Ultimate Fighting
Championship 128: Mauricio Rua v. Jon Jones on March 19, 2011. Compl. ¶¶ 9-25. Joe
Hand sought compensatory and punitive damages, statutory damages pursuant to 47

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U.S.C. § 553(c)(3)(A) and § 605(e)(3)(C)(ii), as well as attorney fees and costs under §
553(c)(2)(C) and § 605(e)(3)(B)(iii). Id.
Trial was set for June, 2014. Dkt. 21. A month before trial, Puerto Vallarta
defendants filed a Motion in Limine to exclude all witnesses and exhibits not properly
disclosed by Joe Hand pursuant to the July 22, 2013 Scheduling Order. Dkt. 22. The
Court granted the motion. Dkt. 26. The parties then entered into a stipulation of dismissal,
and the case was dismissed in its entirety with prejudice. Dkt. 29.
Puerto Vallarta defendants now move for $9,730.00 in attorney fees and $587.00
in costs pursuant to FRCP 54 and 47 U.S.C. § 605(e)(3)(B)(iii) and § 553(c)(2)(C). Def.’s
Mot. at 1, Dkt. 30.
ANALYSIS
Under both 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii), awards of attorney
fees are limited to “an aggrieved party who prevails.” Other districts have determined that
a defendant is not an “aggrieved party” within the meaning of the statutes and that
nothing within the Cable Act statutes authorizes an award of attorney fees to a prevailing
defendant. VJC Productions., Inc. v. Kydes, 903 F. Supp. 42, 43 (S.D. Ga. 1995);
Kingvision Pay-Per-View, Ltd. v. Manente, 1:05CV00280 OWW SMS, 2006 WL 120141
(E.D. Cal. Jan. 12, 2006); Joe Hand Promotions, Inc. v. Nekos, 96-CV-706 (FJS), 1998
WL 238619 (N.D.N.Y. May 5, 1998). As reasoned by the court in VJC Productions:
Having authored a “two-way street” fee-shifting statute in the past, 42
U.S.C. § 1988, Congress certainly knew how to enact the same component
in 47 U.S.C. § 553(c)(2)(C) and § 605(e)(3)(B)(iii). “Where Congress
knows how to say something but chooses not to, its silence is controlling.”

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In re Haas, 48 F.3d 1153, 1156 (11th Cir.1995). By limiting these Cable
Communications Policy Act fee-shifting statutes to an “aggrieved” party,
rather than a mere “prevailing” party (under which a defendant may recover
fees under 42 U.S.C. § 1988), Congress signaled its intention not to
authorize fee awards for defendants in Cable Act cases.
903 F. Supp. at 43-44. The Court agrees with the reasoning in VJC Productions and,
likewise, holds that 47 U.S.C. § 553(c)(2)(C) and § 605(E)(3)(B)(iii) do not authorize an
award of attorney fees to a prevailing defendant.
The remaining issue is whether this court should award attorney fees and costs
under Fed. Rule Civ. P. 54. “It is a general rule in the United States that in absence of
legislation providing otherwise, litigants must pay their own attorney’s fees.”
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 415, 98 S.Ct. 694, 54 L. Ed. 2d 648
(1978). However, the court has the inherent power to award attorney fees “[w]hen a
losing party has ‘acted in bad faith, vexatiously, wantonly, or for oppressive reasons.”
Primus Automotive Financial Services, Inc. v. Batarse, 115 F.3d 644, 648 (9th Cir.
1997). Puerto Vallarta defendants seem to assert that attorney fees should be awarded
because the case was ultimately dismissed due to plaintiff’s failure to comply with the
court’s scheduling order. Def. Mot. at 2, Dkt. 30.
However, for the court to award attorney fees under its inherent power, the court
must make a finding of bad faith. Primus, 115 F.3d at 649. Bad faith requires proof that
the misconduct at issue was both entirely without merit and motivated by some improper
purpose. Derfner & Wolf, Court Awarded Attorney Fees §4.02[1] (2012); Maguire Oil
Co. v. City of Houston, 143 F.3d 205, 211-212 (5th Cir. 1998). The Court finds that the

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facts alleged by Puerto Vallarta defendants are insufficient to prove bad faith, as there is
no indication of improper motive on behalf of the plaintiff. Therefore, the Court declines
to award attorney fees to Puerto Vallarta defendants.1
Additionally, Puerto Vallarta defendants are not entitled to the $587.00 in “costs”
they claim for computer-assisted legal research expenses. See Def. Mot. at 2, Dkt. 30. The
court’s power to award costs under Fed. R. Civ. P. 54(d) is limited to the costs
specifically enumerated under 28 U.S.C. § 1920. See Crawford Fittings Co. v. J.T.
Gibbons, Inc., 402 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L. Ed. 2d 385 (1987). Section
1920 does not include any reference to computer-assisted research expenses, therefore,
the Puerto Vallarta defendants’ request for costs is denied.
ORDER
IT IS ORDERED:
1. Defendants’ Motion for Attorney Fees (Dkt. 30) is DENIED.

1

The Court should only exercise its inherent power to award attorney fees in exceptional
circumstances. Sprague v. Ticonic Nat. Bank, 307 U.S. 161, 167, 59 S. Ct. 777, 83 L.Ed. 1184 (1939).
This is not to say that attorney’s fees would not have been appropriate under Fed. Rule Civ. P. 11, but that
issue is not before the Court.

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DATED: October 2, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

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