Iberia Foods Corp. et al v. Latinfood U.S. Corp. et al
ORDER denying 48 Defendant's Motion for Attorney Fees; and denying 50 Plaintiff's Motion for Attorney Fees. For the reasons stated in the accompanying Memorandum and Order, Defendants' motion for attorneys' fees is DENIED, an d Plaintiffs' cross-motion for attorneys' fees is likewise DENIED. The court declines to exercise its discretion to award Defendants fees pursuant to Federal Rule of Civil Procedure 41(d)(1). Further, neither party has made a sufficient showing of bad faith on the part of the other party, and so the court declines to depart from the traditional rule that the parties pay their own costs in this action. Ordered by Judge Kiyo A. Matsumoto on 4/26/2021. (Mayer, Michael)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
IBERIA FOODS CORP., et al.,
Memorandum and Order
LATINFOOD U.S. CORP., et al.,
KIYO A. MATSUMOTO, United States District Judge:
The plaintiffs in this trademark infringement action
voluntarily dismissed the case pursuant to Federal Rule of Civil
The defendants thereafter filed a
motion to recover their costs, including attorneys’ fees,
pursuant to Federal Rule of Civil Procedure 41(d)(1), and
asserting the plaintiffs’ purported bad faith in pursuing their
The plaintiffs filed a cross-motion for attorneys’ fees
and costs, asserting the defendants’ purported bad faith.
the reasons herein, the defendants’ motion is DENIED, and the
plaintiffs’ motion is DENIED.
This case was initiated July 7, 2020 by four
plaintiffs: Iberia Foods Corporation (“Iberia”); North Shore
Bottling Company, Inc.; Brooklyn Bottling of Milton, New York,
Inc.; and International World Foods Corporation (collectively,
(See generally ECF No. 1, Complaint.)
Plaintiffs named three defendants: Latinfood U.S. Corporation
(“Latinfood”); J. Wilson International, Inc.; and Wilson
The parties subsequently stipulated to J.
Wilson International, Inc.’s dismissal (ECF No. 26, Stipulation
and Order of Partial Dismissal), leaving Latinfood and Wilson
Zulaga and the only remaining defendants (together,
Plaintiffs alleged that Iberia had an exclusive
agreement with Bavaria, S.A. (“Bavaria”), a corporation based in
Colombia that is not a party in this action, to distribute
Bavaria’s Pony Malta brand beverages in certain states in the
(ECF No. 30, Amended Complaint (“Am. Compl.”), ¶
Pony Malta beverages are non-alcoholic carbonated
beverages that are manufactured in Colombia, and they are
popular with the Colombian community in the United States.
¶¶ 16-17, 23.)
Bavaria obtained United States trademarks for
the Pony Malta brand in 1990 and in 2011.
(Id. ¶¶ 24-26.)
some point thereafter, the trademarks were canceled, although
Pony Malta products were still sold in the United States.
1 Plaintiffs originally also brought claims based on beverages bearing the HIT
trademark, but those claims were subsequently settled (ECF No. 19, Order of
Partial Settlement), and Plaintiffs filed an amended complaint focused solely
on the Pony Malta brand.
Plaintiffs alleged that despite their exclusive
agreement with Bavaria to sell Pony Malta beverages in certain
parts of the United States, Defendants engaged in the
unauthorized sale of Pony Malta beverages within the same
(Id. ¶¶ 38-39.)
According to Plaintiffs, the Pony
Malta versions sold by Defendants were allegedly “gray market
goods”: goods authorized for sale outside the United States that
were being sold in the United States without authorization from
(Id. ¶ 43.)
Upon filing their complaint in July 2020, which
brought claims for alleged violations of the federal Lanham Act
as well as state law claims, Plaintiffs sought an ex parte
temporary restraining order to prohibit Defendants from selling
the alleged gray market beverages.
to Show Cause.)
(ECF No. 3, Unsigned Order
The court ordered Plaintiffs to serve the
motion on defense counsel, and the next day, the court held a
hearing, with both parties present by telephone, to hear
argument on the proposed temporary restraining order.
8, 2020 ECF Minute Entry & Dkt. Order.)
Based on the
representations made by Defendants’ counsel during the hearing,
including that Plaintiffs had previously brought similar claims
against Defendants in New York State court, and issues regarding
Plaintiffs’ entitlement to injunctive relief, the court denied
the motion for a temporary restraining order.
Thereafter, Plaintiffs moved for a preliminary
injunction, and Defendants indicated their intent to file a
motion to dismiss the case.
(See ECF No. 31, Declaration in
Support of Preliminary Injunction; Oct. 30, 2020 ECF Dkt.
While the motion for a preliminary injunction was
pending, and before the motion to dismiss was filed, Plaintiffs
notified the court that Defendants “provided [Plaintiffs’
counsel] with an email chain which appeared to indicate that
persons unknown at Bavaria were working directly [with
Defendants] to sell the [allegedly gray market Pony Malta
beverages] for distribution in the” states where Plaintiffs
claimed to have the exclusive right to sell Pony Malta
(ECF No. 42, Letter, at 2.)
Based on this new
information, Plaintiffs voluntarily dismissed the case pursuant
to Federal Rule of Civil Procedure 41(a)(1)(A)(i).
(ECF No. 44,
Notice of Voluntary Dismissal.)
Following Plaintiffs’ voluntary dismissal, Defendants
moved for attorneys’ fees and costs against Plaintiffs.
No. 48, Motion for Attorneys’ Fees; see ECF No. 48-1, Memorandum
in Support (“Def. Mem.”); ECF No. 53, Reply in Support (“Def.
Plaintiffs filed a cross-motion for attorneys’ fees
(ECF No. 50, Cross Motion for Attorneys’ Fees; see
ECF No. 51, Memorandum in Support (“Pl. Mem.”); ECF No. 54,
Reply in Support (“Pl. Reply”).)
“If a plaintiff who previously dismissed an action in
any court files an action based on or including the same claim
against the same defendant, the court  may order the plaintiff
to pay all or part of the costs of that previous action[.]”
Fed. R. Civ. P. 41(d)(1).
Pursuant to this Rule, the Second
Circuit has held that “a district court [is] free, in its
discretion, to award attorneys’ fees as part of costs.”
Horowitz v. 148 S. Emerson Assocs. LLC, 888 F.3d 13, 25 (2d Cir.
The purpose of awarding a party costs and fees after the
opposing party dismisses one action, only to bring a second one
based on the same claims, is to “to serve as a deterrent to
forum shopping and vexatious litigation.”
Id. (quoting Andrews
v. America’s Living Centers, LLC, 827 F.3d 306, 309 (4th Cir.
When attorneys’ fees are not explicitly authorized by
a statute or rule (such as Rule 41(d)(1)), the traditional
“‘American Rule’ is that the prevailing party in federal court
litigation generally cannot recover attorneys’ fees[.]”
Chem. Pac. Ltd. v. Rascator Mar. S.A., 782 F.2d 329, 344 (2d
One exception to this traditional rule is that “the
court does have the power to award attorneys’ fees to a
successful litigant when his opponent has commenced or conducted
an action ‘in bad faith, vexatiously, wantonly, or for
Id. (quoting F.D. Rich Co. v. United
States ex rel. Industrial Lumber Co., 417 U.S. 116, 129 (1974)).
To qualify for this bad faith exception to the “American Rule,”
there must be “‘clear evidence’ that the challenged actions
‘[were] entirely without color and [were] taken for reasons of
harassment or delay or for other improper purposes[.]’”
(quoting Weinberger v. Kendrick, 698 F.2d 61, 80 (2d Cir.
1982)); see also Kerin v. U.S. Postal Serv., 218 F.3d 185, 195
(2d Cir. 2000) (“[W]here the decision to initiate or defend a
lawsuit was meritless and made for improper purposes, a fee
award may be proper.”).
Defendants seek to recover approximately $30,000 they
spent defending the first case Plaintiffs brought against them
in New York state court, and $150,000 they spent defending this
action in federal court, although Defendants did not submit
contemporaneous time sheets supporting these fees.
Mem. at 1.)
Plaintiffs seek to recover approximately $40,000 in
fees spent on this case, based on Defendants’ purported delay in
turning over the document that ultimately persuaded Plaintiff to
voluntarily dismiss the case.
(See Pl. Mem. at 28, 30.)
court will address each of these requests for fees in turn.
Defendants’ Motion for Attorneys’ Fees for the First
State Court Action
Defendants seek the attorneys’ fees and costs expended
defending the first action Plaintiffs filed in state court,
pursuant to Federal Rule of Civil Procedure 41(d), which permits
a court to “order the plaintiff to pay all or part of the costs
of th[e] previous action” where “a plaintiff who previously
dismissed an action in any court files [a second] action based
on or including the same claim against the same defendant[.]”
Fed. R. Civ. P. 41(d)(1).
part of these “costs.”
A court may award attorneys’ fees as
Horowitz, 888 F.3d at 25.
First, Defendants’ motion for attorneys’ fees ignored
this court’s order to file the contemporaneous attorney time
entries showing the hours worked and the fees billed by their
It is well-settled that a “party seeking an award of
fees should submit evidence supporting the hours worked and
Hensley v. Eckerhart, 461 U.S. 424, 433 (1983).
Here, Defendants apparently preferred to engage in a two-step
process, in which the court would first determine their
entitlement to an award of attorneys’ fees, and then would make
a separate determination as to the amount of fees.
Reply at 18-19.)
Such an approach would ordinarily be
permissible; however, in this case, when setting a briefing
schedule for the parties’ cross-motions for attorneys’ fees, the
court specifically directed that any “request for attorneys’
fees and costs should be supported by contemporaneous time
entries and documentation of costs[.]”
(ECF Dkt. Order Dec. 18,
The purpose of having the parties submit this
documentation in support of their respective motions was so that
the court could immediately determine the reasonableness of the
requested fees if the court determined that awarding fees was
Defendants ignored this Order.
Second, on the merits, the court declines to exercise
its discretion to award Defendants attorneys’ fees for the prior
lawsuit, for the reasons that follow.
It is undisputed that, before this action was filed in
this court in July 2020, Plaintiffs raised substantially similar
allegations against one of the Defendants, Latinfood, by filing
a complaint in February 2020 in Kings County Supreme Court in
(ECF No. 50-1, Declaration of Jeffrey C. Ruderman
(“Ruderman Decl.”), ¶¶ 2, 9.)
Although the factual allegations
in the first state court case were similar to those alleged in
this case, the claims that were brought in state court were all
state law claims.
(Id. ¶ 9.)
The state court complaint was
served upon Latinfood on March 2, 2020, and shortly thereafter,
the New York courts were closed due to the global COVID-19
(Id. ¶ 10.)
When the state court reopened in May
2020, Latinfood filed a motion to dismiss the complaint.
On July 7, 2020, before the motion to dismiss had been
decided, Plaintiffs filed a notice of discontinuance in the
state court, and filed a new complaint (and a request for a
temporary restraining order) in this court.
(Id. ¶¶ 19-20.)
The complaint in this court asserted federal claims pursuant to
the Lanham act (in addition to the same state law claims), and
added additional Defendants.
(Id. ¶¶ 12-13.)
Defendants’ argument in favor of attorneys’ fees
for the state court case focuses on the language of Rule
Defendants argue that this situation “falls squarely
within the plain language of” the Rule, because Plaintiffs
dismissed the state court case and then filed this case.
Mem. at 6.)
Defendants are correct that Rule 41(d)(1) applies
to this situation.
However, the plain language of the Rule does
not mandate an award of costs or attorneys’ fees.
provides that a court may award costs (including fees) for the
first action, “in its discretion.”
Horowitz, 888 F.3d at 25.
Attorneys’ fees should be awarded “as a deterrent to forum
shopping and vexatious litigation,” and should target litigants
who “file complaints and quickly dismiss them, perhaps in
reaction to initial unfavorable rulings, or hoping for a
subsequent case assignment to a judge they view as more
Id. at 25-26.
Here, there is no indication that Plaintiffs’ decision
to discontinue the state court action in order to file in
federal court was “forum shopping,” either “in reaction to
initial unfavorable rulings,” or in the hope of a “more
favorable” judicial assignment.
There were no decisions issued
by the state court judge in the first action, unfavorable or
The parties never appeared before the state court,
and Latinfood’s motion to dismiss was never decided.
Decl. ¶¶ 7-8.)
This case is thus readily distinguishable from
Horowitz, a Second Circuit case upon which Defendants rely
In Horowitz, the Second Circuit affirmed the
district court’s award of attorneys’ fees where the plaintiff
had filed a second case in federal court shortly after the
Georgia state court, which was hearing the plaintiff’s first
case, “denied the [plaintiff’s request for a temporary
restraining order] and at the same time suggested that [the
plaintiff]’s filing of that [first] action interfered with [a
separate] state action in New York in violation of that court’s
. . . order.”
888 F.3d 13, 17–18.
Conversely, no such
skepticism was ever expressed by the state court here that would
have triggered Plaintiffs to forum shop.
Further, the decision to litigate in federal court
appears to have been made following a good faith recognition
that federal claims should be added to the complaint, based on
Plaintiffs’ counsel has declared under penalty
of perjury that he only came to believe that Defendants were
selling gray market goods that originated with Bavaria (rather
than counterfeit goods) after Latinfood filed an affidavit in
support of its motion to dismiss in state court, which described
the process by which Latinfood obtained the Pony Malta beverages
(Ruderman Decl. ¶¶ 11-12.)
This caused Plaintiffs’
counsel to want to add, inter alia, a claim pursuant to Section
43 of the Lanham Act, which provides a cause of action against a
person who sells goods using a “false designation of origin”
that “is likely to cause confusion . . . as to the origin,
sponsorship, or approval of [the] goods . . . .”
15 U.S.C. §
Though Plaintiffs could have brought their
Lanham Act claims in state court, Plaintiffs decided in good
faith that such claims were more properly heard in federal
court, because federal courts more regularly deal with Lanham
(Ruderman Decl. ¶ 16.)
The court appreciates Defendants’ frustration with
having to litigate in two separate forums.
In instances, not
appliable here, where it is shown that a plaintiff dismissed one
case in order to forum shop, seek an advantage, or drive up the
cost of litigation, the court would be inclined to grant fees to
However, there is no evidence of that in this
Defendants have not pointed to any particular act of bad
faith by Plaintiffs, or any advantage that Plaintiffs were
attempting to obtain by re-filing in federal court.
prejudice to Defendants was likely minimal.
expended resources on a motion to dismiss in state court, the
work done on that motion was not wasted.
Defendants note that
Plaintiffs’ federal court complaint contained only
“insignificant” changes as compared to their state court
complaint (Def. Mem. at 8), which means that Defendants could
likely have re-used much of their motion to dismiss in this
See Pelczar v. Pelczar, No. 16-cv-55 (CBA), 2017 WL
3105855, at *2 (E.D.N.Y. July 20, 2017) (Rule 41(d)(1) “has been
interpreted in this Circuit to include payment of attorney’s
fees as ‘compensation for work done in the first action that
cannot be used in a second existing or contemplated action[.]’”)
(quoting Hintergerger v. Catholic Health Sys., No. 08-cv-952
(WMS), 2012 WL 1965435, at *1 (W.D.N.Y. May 31, 2012)).
Accordingly, the court respectfully declines to
exercise its discretion to award attorneys’ fees and costs to
Defendants for the state court action, because this court does
not find that Plaintiffs were forum shopping or acting in bad
faith when they chose to discontinue the state court action in
order to file a complaint in federal court.
Defendants’ Motion for Attorneys’ Fees for the Instant
Where a plaintiff files two similar cases, Rule
41(d)(1) only authorizes a court to award costs for the
Fed. R. Civ. P. 41(d)(1).
Thus, in order
for Defendants to recover fees for this second, federal action,
they cannot rely on Rule 41(d)(1); rather, they must establish
the exception to the general rule that each part bears its own
costs, by showing “clear evidence” that this case was litigated
“in bad faith, vexatiously, wantonly, or for oppressive
Dow Chem. Pac. Ltd., 782 F.2d at 344.
Defendants argue that Plaintiffs’ Lanham Act claims
were brought in bad faith, because Plaintiffs did not have a
registered trademark for the Pony Malta brand, and Plaintiffs
were merely one of several distributors of the brand in the
United States (as were Defendants, because Latinfood was a
“longstanding, senior distributor” of the brand).
(Def. Mem. at
There is no “clear evidence,” however, that Plaintiffs’
claims were not, at least, colorable.
On the contrary,
Plaintiffs have provided evidence to demonstrate the basis of
their claims: a distribution agreement between Plaintiffs and
Bavaria, covering the time period from March 2019 through August
2021, which stated that Plaintiffs would acquire Pony Malta
products from Bavria “in order to resell them exclusively in the
Territory of Florida – New York and New Jersey in USA . . . .”
(Ruderman Decl., Ex. 2, at 2.)
Defendants do not dispute that they were also selling
Pony Malta beverages in the territory over which Plaintiffs
believed they had an exclusive right.
Rather, Defendants argue
that Plaintiffs did not actually have an exclusive right,
because Defendants obtained the beverages they sold from Bavaria
(through a company called Two-Way Solutions), with the right to
sell them in the same territory.
(See Def. Mem. at 11.)
the question now is not Defendants’ liability; the question is
Plaintiffs’ knowledge at the time Plaintiffs filed suit.
on Plaintiffs’ agreement with Bavaria, it was reasonable for
Plaintiffs to conclude that they had the exclusive right to sell
Pony Malta beverages in Florida, New York, and New Jersey.
Another entity selling gray market Pony Malta beverages in that
territory could have been, under circumstances that caused
confusion to consumers, liable under the Lanham Act.
Davidoff SA v. CVS Corp., 571 F.3d 238, 242 (2d Cir. 2009).
Defendants contend that they “repeatedly relayed” to
Plaintiffs their position that they were also authorized to sell
Pony Malta beverages in the same territory.
(Def. Reply at 5.)
But the only evidence Defendants offer in support are emails
dated in October 2020, which is several months after Plaintiffs
filed this action in July 2020.
(See id. at 4-5.)
also seem to suggest that Plaintiffs should have dropped their
case in response to the arguments made in Defendants’ motion to
dismiss (which was filed in state court), or in response to the
motion to dismiss that was contemplated in this court.
because a defendant has a viable legal defense does not mean the
plaintiff’s claims were brought in bad faith.
Any motion to
dismiss would have been limited to Plaintiffs’ allegations, and
not evidence offered by Defendants.
And, again, the only
evidence Defendants point to in support of their conclusory
assertion that Plaintiffs’ claims were brought in bad faith is
evidence that was disclosed after Plaintiffs’ second case was
That evidence ultimately caused Plaintiffs to
discontinue this action, but Defendants apparently failed to
provide any evidence to Plaintiffs sooner than November 2020. 2
Defendants also argue that Plaintiffs lacked standing
to enforce any Pony Malta trademark rights, because Plaintiffs
did not own the trademark, and the distribution agreement did
not provide Plaintiffs the right to enforce the trademark.
Def. Mem. at 12.)
Upon a review of the distribution agreement,
it appears that Defendants are correct that, although Plaintiffs
could have reasonably believed they had an exclusive right to
2 Defendants also argue that Plaintiffs’ amended complaint was supported by
“no evidence.” (Def. Reply at 7.) A complaint need not be supported by
evidence, only plausible allegations, as a plaintiff generally will not have
access to evidence that is in a defendant’s possession until the parties
engage in discovery.
distribute the Pony Malta products, nothing in the agreement
purported to give Plaintiffs the right to enforce Pony Malta’s
(See generally Ruderman Decl., Ex. 2.)
Plaintiffs counter that their claims were not for trademark
infringement pursuant to Section 32 of the Lanham Act, but
rather, were brought under Section 43 of the Lanham Act, which
provides a cause of action for unfair competition related to
goods with a “false designation of origin.”
15 U.S.C. §
Plaintiffs contend that their rights under Section
43 are broader, and there was no requirement that the they owned
a registered trademark to bring suit.
(See Pl. Mem. at 21.)
Second Circuit case law interpreting the standing
requirement for Section 43 claims appears to be somewhat sparse.
What is clear, however, is that Plaintiffs’ arguments with
regard to standing are colorable, and it does not appear that
their claims were brought in bad faith.
In support of their
argument that they had standing to bring their claims pursuant
to Section 43 of the Lanham Act, Plaintiffs rely on, inter alia,
a case in which the First Circuit held that “one who may suffer
adverse consequences from a violation of [Section 43] has
standing to sue regardless of whether he is the registrant of a
Quabaug Rubber Co. v. Fabiano Shoe Co., 567 F.2d
154, 160 (1st Cir. 1977).
Moreover, Defendants rely on a case from this District
in which the late Judge David G. Trager found that a plaintiff
did not have standing under Section 32 of the Lanham Act to
bring a claim for trademark infringement because the relevant
contract between the plaintiff and the owner of the trademark
“fail[ed] to grant exclusive enforcement rights to plaintiff.”
Krasnyi Oktyabr, Inc. v. Trilini Imports, 578 F. Supp. 2d 455,
466 (E.D.N.Y. 2008); (see Def. Mem. at 12).
However, in that
case, Judge Trager actually found that the “plaintiff had
standing under Section 43 based on pleadings that false
designation of defendants’ product is likely to cause plaintiff
to suffer a loss in sales.”
Krasnyi Oktyabr, 578 F. Supp. 2d at
Thus, this case relied upon by Defendants actually
supports Plaintiffs’ position that they had standing to bring
Section 43 claims based on what they alleged was unfair
competition, even without an assignment of the right to enforce
the Pony Malta mark.
It is evident, then, that Plaintiffs’
claims were not baseless.
Rather, Plaintiffs had a good faith
belief, supported by case law, that they had standing to sue
under Section 43 of the Lanham Act.
Defendants also raise Plaintiffs’ decision to seek an
ex parte temporary restraining order at the outset of the case.
The court agrees that Plaintiffs’ decision to do so appears
overly aggressive in retrospect.
Federal Rule of Civil
Procedure 65(b) directs that such an order may only be entered
without notice to the adverse party if “specific facts . . .
clearly show that immediate and irreparable injury, loss, or
damage will result to the movant before the adverse party can be
heard in opposition.”
Fed. R. Civ. P. 65(b)(1)(A).
fact that the first state action had been filed several months
earlier, without Plaintiffs seeking a temporary restraining
order, the court is skeptical that it was necessary for
Plaintiffs to seek an immediate prohibition in this case.
Nonetheless, the court does not find that Plaintiffs’ decision
to do so rises to the level of litigating in bad faith.
on the distribution agreement Plaintiffs had with Bavaria, it
was reasonable for Plaintiffs to believe that Defendants were
selling gray market goods in their exclusive territory, which
could have damaged Plaintiffs’ business.
Ultimately, when Defendants provided Plaintiffs with a
document in November 2020 showing that they had legitimately
obtained the Pony Malta beverages from Bavaria for sale in the
same territory, Plaintiffs voluntarily dismissed this action.
Had Plaintiffs been interested only in harassing Defendants for
purposes of a settlement, they could have pressed on, and forced
Defendants to fully brief their intended motion to dismiss.
Instead, Plaintiffs dropped the case.
That belies bad faith.
Accordingly, Defendants’ motion for attorneys’ fees is
III. Plaintiffs’ Motion for Attorneys’ Fees
Plaintiffs brought a cross-motion for attorneys’ fees,
arguing that Defendants prolonged the litigation by sitting for
months on the evidence that would have resolved this matter
(See Pl. Mem. at 27-28.)
According to Plaintiffs,
Defendants did not provide their evidence showing that
individuals at Bavaria were facilitating Defendants’ sale of
Pony Malta products until November 2020, despite Plaintiffs
making clear in July 2020 that such evidence would cause them to
rethink the lawsuit if it were provided by Defendants, and an
order by Magistrate Judge Roanne L. Mann for the parties to turn
over any evidence that may be relevant to settlement prior to a
settlement conference in August 2020.
that the actual evidence they ultimately proffered, which were
emails between an employee at Bavaria and an employee with
Latinfood’s distributor, were dated October 2020, and thus could
not have been proffered any earlier than that.
(See Def. Reply
The same standard that applied to Defendants’ motion
for attorneys’ fees for this action also applies to Plaintiffs’
In order to obtain attorneys’ fees, Plaintiffs must
point to “clear evidence” that Defendants acted in “bad faith.”
Dow Chem. Pac. Ltd., 782 F.2d at 344.
In response to Defendants’ argument that the emails
they proffered were not available until October 2020, Plaintiffs
argue that if Defendants “were secure in their position that
Bavaria always authorized Defendants’ sale of Pony Malta goods
in the U.S., then a confirmation from Bavaria in July 2020 or
some other proof would have been in order.”
(Pl. Reply at 5.)
The court agrees that it would have been preferable for
Defendants to obtain this proof from Bavaria sooner, but it does
not find that Defendants failure to do so was in bad faith.
Plaintiffs have not pointed to any specific discovery
obligations that Defendants violated, nor any specific
affirmative duty Defendants had to obtain any documents that
were not already in its possession.
Plaintiffs’ motion for attorneys’ fees
For the foregoing reasons, Defendants’ motion for
attorneys’ fees is DENIED, and Plaintiffs’ cross-motion for
attorneys’ fees is likewise DENIED.
The court declines to
exercise its discretion to award Defendants fees pursuant to
Federal Rule of Civil Procedure 41(d)(1).
party has made a sufficient showing of bad faith on the part of
the other party, and so the court declines to depart from the
traditional rule that the parties pay their own costs in this
Brooklyn, New York
April 26, 2021
Hon. Kiyo A. Matsumoto
United States District Judge
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