Versatop Support Systems, Inc. v. Georgia Expo, Inc.

Filing 79

ORDER: The Court ADOPTS Magistrate Judge Jelderks's Findings and Recommendation (# 73 ) and, therefore, DENIES Defendant's Motion (# 52 ) for Exceptional Case Determination and Attorneys' Fees, Expenses and Costs. The Court, however, AWARDS Defendant $1,981.05 pursuant to its Bill of Costs (# 53 ). Signed on 2/12/2018 by Judge Anna J. Brown. (jtj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
VERSATOP SUPPORT SYSTEMS, LLC,
3:15-cv-02030-JE
Plaintiff(s),
ORDER
v.

GEORGIA EXPO, INC.,
Defendant(s).

BROWN, Senior Judge.

Magistrate Judge John Jelderks issued Findings and
Recommendation (F&R)

(#73) on November 21, 2017, in which he

recommends the Court deny Defendant Georgia Expo, Inc.'s Motion
(#52) for Exceptional Case Determination and Attorneys' Fees,
Expenses and Costs.

The Magistrate Judge also recoi:nmends the

Court allow Defendant's Bill of Costs (#53) and award Defendant
$1,981.05 in costs.

Defendant filed timely Objections to the

Findings and Recommendation as to its Motion only.

The matter is

now before this Court pursuant to 28 U.S.C. § 636(b) (1) and
Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate
1 - ORDER

Judge's Findings and Recommendation, the district court must make
a de novo determination of that portion of the Magistrate Judge's
report.

28 U.S.C. § 636(b) (1).

See also Decker v. Berryhill,

856 F.3d 659, 663 (9th Cir. 2017).
Defendant seeks recovery of $146,572.00 in attorneys' fees
and $5,029.43 in expenses pursuant to the fee-shifting provisions
of the Patent Act, 35 U.S.C.

§

285, for defense of the patent-

infringement claim asserted by Plaintiff.

Defendant also seeks

fees for defense of the trademark and copyright claims either as
part of the work done on the patent claim or, in the
alternative,, pursuant to the Lanham Act, 15 U.S.C.
and the Copyright Act, 17 U.S.C. § 505.

§

1117(a),

Defendant objects to the

Magistrate Judge's recommendation on the ground that the
Magistrate Judge erred by applying a subjective standard instead
of the required objective standard when determining Defendant's
Motion.
Both the Patent Act and the Lanham Act authorize a district
court to award attorneys' fees to the prevailing party in patent
litigation if it is an "exceptional case."

The Supreme Court in

Octane Fitnessr LLC v. ICON Health & Fitnessr Inc., held an
"exceptional case" within the meaning of the statutes "is simply
one that stands out from others with respect to the substantive
strength of a party's litigation position (considering both the
governing law and the facts of the case) or the unreasonable

2 - ORDER

manner in which the case was litigated."
(2014).

The Court went on to state:

134 S. Ct. 1749, 1756

"District courts may

determine whether a case is 'exceptional' in the case-by-case
exercise of their discretion, considering the totality of the
circumstances."

Id.

This Court finds the Magistrate Judge cited the proper
standard to apply in resolving Defendant's Motion.

F&R at 6-8.

In hiB analysis the Magistrate Judge set out the facts of this
case and noted:
Although the Court found VersaTop's evidence was
insufficient to support granting either its motion to
compel or summary judgment in its favor, I cannot
conclude, in light of the totality of the
circumstances, that VersaTop has no reasonable basis to
believe that its claims were worthwhile.
F&R at 9 (emphasis in original) .

Applying the standard of

Octaner the Magistrate Judge found:

Considering the factors and the facts of the case
holistically, I cannot conclude that the substantive
strength of VersaTop's litigation position rendered
this case "exceptional" so as to· warrant an award of
attorney fees under either the Patent Act or the Lanham
Act.
F&R at 9.
Because the Magistrate Judge based his recommendation on
"the totality of the circumstances" of this case, this Court
concludes the Magistrate Judge properly applied the objective
standard.

Thus, this Court, after carefully considering

Defendant's Objections, concludes they do not provide a basis to

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'

'

modify the Findings and Recommendation.
The Court also has reviewed the pertinent portions of the
record de novo and does not find any error in the Magistrate
Judge's Findings and Recommendation.

CONCLUSION

The Court ADOPTS Magistrate Judge Jelderks's Findings and
Recommendation (#73) and, therefore, DENIES Defendant's Motion
(#52) for Exceptional Case Determination and Attorneys' Fees,
Expenses and Costs.

The Court, however, AWARDS Defendant

$1,981.05 pursuant to its Bill of Costs (#53).
IT IS SO ORDERED.
. (Y\..,
DATED this
day of February, 2018.

11

ANNA J. BROWN
United States Senior District Judge

4 - ORDER