HD MICHIGAN LLC et al v. HANNON

Filing 16

ORDER ON PLAINTIFFS APPLICATION FOR AWARD OF ATTORNEYS FEES denying 15 Motion for Attorney Fees By JUDGE GEORGE Z. SINGAL. (nrg)

UNITED STATES DISTRICT COURT DISTRICT OF MAINE H-D Michigan, LLC & Harley-Davidson, Motor Company Group, LLC d/b/a/ Harley-Davidson Motor Company, Plaintiff, v. Pat Hannon d/b/a Big Daddy's Barbeque, Defendant. ) ) ) ) ) Docket no. 2:09-cv-378-GZS ) ) ) ) ) ) )

ORDER ON PLAINTIFFS' APPLICATION FOR AWARD OF ATTORNEY'S FEES Before the Court is Plaintiff's Application for Award of Attorney's Fees and Litigation Expenses (Docket # 15). 15 U.S.C. § 1117(a). The Motion was filed following the docketing of the Amended Judgment (Docket # 13), which allowed for Plaintiffs to be awarded attorney's fees pursuant to By its terms, this statute requires the Court to find the case to be "exceptional" in order to justify an award of "reasonable attorney fees to the prevailing party." 15 U.S.C. § 1117(a). Under First Circuit precedent, such a finding can be made only if the "totality of the circumstances" shows that "the infringer's actions were "malicious, fraudulent, deliberate or willful.'" Venture Tape Corp. v. McGills Glass Warehouse, 540 F.3d 56, 64 (1st Cir. 2008) (quoting Tamko Roofing Prods. v. Ideal Roofing Co., 282 F.3d 23, 30 (1st Cir. 2002)). The pending application provides no basis to make such a finding. If counsel believes the totality of the circumstances makes this action a qualifying exceptional case, they are free to re-file their application with supporting facts and precedent. However, given the absence of such a record to support the pending motion, the Court DENIES WITHOUT PREJUDICE Plaintiff's Application (Docket # 15). SO ORDERED. /s/ George Z. Singal United States District Judge Dated this 25th day of January, 2010.