Bally Technologies, Inc. v. Business Intelligence Systems Solutions, Inc.

Filing 214

ORDER Denying 177 Motion for Attorney Fees. Denying 176 Bill of Costs. Signed by Judge Philip M. Pro on 3/8/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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BALLY TECHNOLOGIES, INC.,
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Plaintiff/Counter-Defendant,
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v.
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BUSINESS INTELLIGENCE SYSTEMS )
SOLUTIONS, INC.,
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Defendant/Counter-Plaintiff.
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2:10-CV-00440-PMP-GWF
ORDER

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Presently before the Court is Defendant Business Intelligence Systems Solutions,

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Inc.’s (“BIS2”) Motion for Attorneys’ Fees (Doc. #177), filed on September 7, 2012. Bally

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Technologies, Inc. (“Bally”) filed a Response (Doc. #181) on September 21, 2012. BIS2

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filed a Reply (Doc. #185) on October 1, 2012. The Court held a hearing on the Motion on

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March 6, 2013. (Mins. of Proceedings (Doc. #213).)

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Also before the Court is BIS2’s Bill of Costs (Doc. #176), filed on September 6,

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2012. Bally filed an Objection (Doc. #180) on September 20, 2012. BIS2 filed a Reply

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(Doc. #182) on September 24, 2012.

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The parties are familiar with the facts of this case, and the Court will not repeat

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them here except where necessary. BIS2 moves for attorneys’ fees in this patent case,

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arguing it is the prevailing party, the case is exceptional, and it therefore is entitled to

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$2,067,621 in attorneys’ fees. Bally responds that BIS2 is not the prevailing party because,

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viewing the litigation as a whole, there is no prevailing party in light of the parties’ mixed

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successes and failures. Bally therefore argues an award of attorneys’ fees is inappropriate.

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Bally further argues BIS2 did not establish by clear and convincing evidence that this case

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is exceptional.
A court may award reasonable attorneys’ fees to the prevailing party in a patent

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case in “exceptional cases.” 35 U.S.C. § 285. To establish it is the prevailing party, a party

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must show the court’s actions resulted in a “material alteration of the legal relationship of

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the parties” that is “judicially sanctioned.” Buckhannon Bd. & Care Home, Inc. v. W. Va.

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Dep’t of Health & Human Res., 532 U.S. 598, 604-605 (2001). “Determination of the

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prevailing party is based on the relation of the litigation result to the overall objective of the

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litigation, and not on a count of the number of claims and defenses.” Brooks Furniture

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Mfg., Inc. v. Dutailier Int’l, Inc., 393 F.3d 1378, 1381 (Fed. Cir. 2005).
In addition to demonstrating it is the prevailing party, a party must prove by clear

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and convincing evidence that the case is exceptional. MarcTec, LLC v. Johnson &

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Johnson, 664 F.3d 907, 915 (Fed. Cir. 2012). Absent misconduct in the litigation or in

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securing the patent, a case is exceptional if it is “brought in subjective bad faith” and is

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“objectively baseless.” Id. at 916. If the case is deemed exceptional, then the court must

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determine whether an award of attorneys’ fees is justified. Id. Even in an exceptional case,

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it is within the court’s discretion to determine whether to award attorneys’ fees under § 285.

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Id.

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Here, the Court finds it is unnecessary to determine whether BIS2 is the

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prevailing party for the purpose of § 285 because BIS2 fails to prove by clear and

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convincing evidence that Bally brought the litigation in subjective bad faith and that the

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litigation was objectively baseless. Given that this is not an exceptional case warranting an

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award of attorneys’ fees, the Court will deny BIS2’s Motion for Attorneys’ Fees.

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As for BIS2’s Bill of Costs, BIS2 requests costs in the amount of $47,292.79.

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Bally objects that an award of costs is inappropriate because this case produced a mixed

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outcome and there is no prevailing party. BIS2 responds that it is the prevailing party under
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Federal Rule of Civil Procedure 54(d)(1) because it prevailed on the patent infringement

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claims.
Rule 54(d)(1) provides in relevant part that the costs “should be allowed to the

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prevailing party” unless “a court order otherwise provides.” Under Rule 54, there is a

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presumption in favor of awarding costs to the prevailing party unless the court exercises its

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discretion to refuse to award costs for a specified reason. Ass’n of Mexican-Am. Educators

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v. Cal., 231 F.3d 572, 591 (9th Cir. 2000) (en banc). It is within the court’s discretion to

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require each party to bear its own costs in the event of a mixed judgment. Amarel v.

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Connell, 102 F.3d 1494, 1523 (9th Cir. 1996).
By BIS2 establishing its non-infringement of Bally’s patents at summary

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judgment, BIS2 obtained a judicially sanctioned material alteration in its legal relationship

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with Bally and therefore prevailed on the patent infringement issue, which arguably was the

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overall objective of the litigation. However, this is a mixed judgment case in which there

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arguably were other objectives, such as the patent ownership issues as well as the

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intentional interference with prospective economic advantage and defamation counterclaims

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on which Bally prevailed. Given that this is a mixed judgment case with no overall

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prevailing party, the Court, in its discretion, will deny BIS2’s Bill of Costs and require each

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party to bear its own costs.

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IT IS THEREFORE ORDERED that Defendant Business Intelligence Systems
Solutions, Inc.’s Motion for Attorneys’ Fees (Doc. #177) is hereby DENIED.
IT IS FURTHER ORDERED that Defendant Business Intelligence Systems

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Solutions, Inc.’s Bill of Costs (Doc. #176) is hereby DENIED. Each party shall bear its

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own costs.

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DATED: March 8, 2013
_______________________________
PHILIP M. PRO
United States District Judge

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