KX Energy v. Panis et al

Filing 38

ORDER denying 35 Motion for Attorney Fees Signed by Judge Sam E Haddon on 4/29/2016. (ELL, ) Modified on 4/29/2016 to indicate that a copy was mailed to pro se Panis (ELL, ).

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA

Clerk, U.S. D strict Court
District Of ontana
Hel na

BUTTE DIVISION

KX ENERGY, INC., a Virginia
Corporation,
No. CV 15-25-BU-SEH
Plaintiff,
vs.

ORDER

GREGORY PETER PANIS,
NUTRITION EXPENSE
CORPORATION, INC., a dissolved
Oregon corporation, NUTRITION
CLUBSTORES, INC., a dissolved
Oregon corporation, and JOHN DOES
1-99
'
Defendants.
On April 13, 2016, the Court entered judgment in this case in favor of
Plaintiff, KX Energy, Inc., in the amount of $127,609.00, with post-judgment
interest and allowable costs of suit. 1 On April 27, 2016, Plaintiff filed its Moti n
for Award of Attorneys' Fees. 2
The Montana Supreme Court has recognized an equitable exception to th
American Rule regarding attorneys' fees stating, "an award of attorney's fees i
the absence of a contract or statutory basis will be narrowly applied, and will b
1

2

Doc. 32.
Doc. 35.

-1-

limited to those cases in which the prevailing party has been forced to defend
against a frivolous or malicious action. 3
In this case, Defendant, Gregory Peter Panis, filed two motions. First, a
motion to dismiss, 4 and second, after default was entered, 5 an Affirmation in
Opposition for Default Fed.R.Civ.P. 55(a). 6 Both were denied. 7 On April 13,
2016, Plaintiff was awarded the judgment as requested. 8
Plaintiff has not demonstrated that it was forced to defend against frivolo s
or malicious actions by Defendants. No recovery of attorneys' fees is warrante .
ORDERED:
Plaintiffs Motion for Award of Attorney's Fees 9 is DENIED.
DATED this

29'4y

of April, 2016.

United States District Judge

3

El Dorado Heights Homeowners' Ass'n v. Dewitt, 186 P.3d 1249, 1255 (Mont. 2008) (citin
Pankratz Farms, Inc. v. Pankratz, 95 P.3d 671, 687 (Mont. 2004)).
4
Doc. 14.
5

Doc. 18.

6

Doc. 22 (The Court construed the affirmation as a motion to set aside default, addressed it s
such and denied it. (See Doc. 24)).
7
Docs. 16 and 24.
8
Doc. 32.
9
Doc. 35.

-2-