TRP Entertainment, LLC v. BC Entertainment, Inc. et al

Filing 138

ORDER Denying TRP Entertainment, LLC's 118 Motion for Attorney's Fees. Signed by Judge Lloyd D. George on 10/17/2017. (Copies have been distributed pursuant to the NEF - SLD)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TRP ENTERTAINMENT, LLC,

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Plaintiff,

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v.

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Case No. 2:08-cv-00579-LDG

BC ENTERTAINMENT, INC., et al.,

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ORDER

Defendants.

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BC ENTERTAINMENT, INC., et al.,
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Counterclaimants,
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v.
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TRP ENTERTAINMENT, LLC,
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Counterdefendant.
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Plaintiff/Counterdefendant TRP Entertainment, LLC, moves for an award of

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attorneys’ fees in the amount of $99,087.77 (ECF No. 118). As the Court does not f ind this

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to be an exceptional case, the Court will deny the motion. 15 U.S.C.A. §1117(a) (“[t]he

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court in exceptional cases may award reasonable attorney fees to the prevailing party”).

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Early in this litigation, TRP Entertainment was the losing party on a motion for partial

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summary judgment on the counterclaim that the term “The Rat Pack” is generic in the

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context of live shows about or in tribute to members of the Rat Pack.

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Subsequently, no proceedings took place in this matter for more than a year, and

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the Court notified TRP Entertainment that the matter would be dismissed for want of

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prosecution if no action was taken within 30 days. TRP Entertainment did not take any

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action within the 30 days, and the Court dismissed the matter for want of prosecution.

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The Defendant/Counterclaimant moved the Court to reconsider dismissal of the
action on the basis that a proposed partial judgment had been submitted on behalf of the

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Counterclaimant, but that the Court had not signed and entered the partial judgment. TRP

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Entertainment opposed the motion to re-open this matter. The Court granted Defendant/

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Counterclaimant’s motion, re-opened the matter, and entered a partial judgment in favor of

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the Counterclaimant.

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Subsequently, no proceedings took place in this matter for more than a year. The

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Court again notified TRP Entertainment that the matter would be dismissed for want of

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prosecution if no action was taken within 30 days. TRP Entertainment responded by

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moving to stay this matter, which motion the Court denied. TRP Entertainment moved to

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dismiss this matter because Defendant/Counterclaimant had not participated in preparing a

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Joint Pre-trial order. The Court denied that motion. The matter was scheduled for a

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settlement conference. While TRP Entertainment prepared for and attended that

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conference, Defendant/Counterclaimant did not. Ultimately, the Magistrate Judge

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recommended that the Defendant’s answer to TRP Entertainment’s complaint be stricken,

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and that a default judgment be entered. The Court adopted that recommendation.

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TRP Entertainment then appealed this Court’s Partial Judgment in favor of

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Counterclaimant. The Ninth Circuit rejected the appeal and affirmed this Court’s decision.

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As a result, the Director of the United States Patent and Trademark Office was ordered to
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enter a disclaimer on TRP Entertainment’s Trademark Registration No. 2,640,066 that “NO

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CLAIM IS MADE TO THE EXCLUSIVE RIGHT TO USE ‘THE RAT PACK’ APART FROM

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THE MARK AS SHOWN.” The Court holds that, under these circumstances, this is not an

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exceptional case warranting an award of attorneys’ fees.

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Accordingly, for good cause shown,

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THE COURT ORDERS that TRP Entertainment, LLC’s Motion for Attorney’s Fees

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(ECF No. 118) is DENIED.

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DATED this ______ day of October, 2017.

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Lloyd D. George
United States District Judge

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