Baxter Bailey & Associates v. Powers & Stinson, Inc. et al
ORDER denying 81 Motion for Attorney Fees. Signed by Judge Samuel H. Mays, Jr on 03/20/2017. (Mays, Samuel)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TENNESSEE
BAXTER BAILEY & ASSOCIATES,
POWERS & STINSON, INC.;
THE TRANSPORTATION FIRM; and
Before the Court is the Motion for Costs and Attorney’s
Fees filed by Plaintiff Baxter Bailey & Associates, Inc. (“Baxter”) on August 9, 2016.
(ECF No. 81 (“Mot.”); see also Mem. in
Supp. of Mot. for Costs and Attorney’s Fees, ECF No. 81-1 (“Mem.
Defendants Powers & Stinson, Inc.; The Transporta-
tion Firm; and Donald McKnatt filed a response to the Motion on
August 18, 2016.
(Defs.’ Resp. Mem. in Opp’n to Pl.’s Mot. for
Costs and Attorney’s Fees, ECF No. 82 (“Resp.”).)
For the following reasons, the Motion is DENIED without
Section I of the Court’s Order dated July 5, 2016 (the “Ju-
ly 2016 Order”) recounts the history of this matter.
Bailey & Assocs., Inc. v. Powers & Stinson, Inc., No. 14-3012,
2016 WL 7497581, at *1 (W.D. Tenn. July 5, 2016).
ground section addresses only proceedings since the July 2016
The July 2016 Order denied motions for summary judgment
filed by Baxter and Defendants.
(Id. at *6.)
place on July 25 and 26, 2016.
(Minute Entry, ECF No. 73; Mi-
A jury trial took
(1) trademark dilution in violation of 15 U.S.C. § 1125(a) and
(c); and (2) violation of the Anticybersquatting Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d)(1).
ECF No. 76 (“Verdict”); see also Jury Instructions 10–21, ECF
dilution claim, and for Baxter on the ACPA claim.
Before trial, Baxter elected “to accept statutory damages
should it prevail at trial.”
(Jt. Pretrial Order 8, ECF No.
Under the ACPA, those damages were between $1,000.00 and
The jury awarded Baxter $1,000.00.
Baxter filed the present Motion on August 9, 2016.
asks the Court “to award costs and attorney’s fees and allow
counsel to submit an affidavit to provide proof of the costs and
attorney’s fees expended in this case.”
(Mem. ISO Mot. 4.)
fendants filed the Response on August 18, 2016.
Under 15 U.S.C. § 1117(a):
When . . . a violation under [15 U.S.C.
§ 1125(a) or § 1125(d)] . . . shall have
been established in any civil action arising
under this chapter, the plaintiff shall be
entitled . . . , subject to the principles
of equity, to recover (1) defendant’s profits, (2) any damages sustained by the plaintiff, and (3) the costs of the action. . . .
The court in exceptional cases may award
reasonable attorney fees to the prevailing
Under 15 U.S.C. § 1117(d):
In a case involving a violation of [15
elect . . . to recover, instead of actual
damages and profits, an award of statutory
damages in the amount of not less than
$1,000 and not more than $100,000 per domain
name, as the court considers just.
Baxter elected to take statutory damages “instead of actual
damages and profits.”
That leaves the issues of costs and at-
Rule 54(d)(1) 1 governs requests for costs:
Unless a federal statute, these rules, or a
court order provides otherwise, costs ––
other than attorney’s fees –– should be al1
References to “Rule __” are to the Federal Rules of Civil Procedure. References to “Local Rule __” are to the Local Rules of
the U.S. District Court for the Western District of Tennessee.
lowed to the prevailing party. . . .
clerk may tax costs on 14 days’ notice. On
motion served within the next 7 days, the
court may review the clerk’s action.
Local Rule 54.1(a) provides local rules for costs requests:
If parties can agree on costs, it is not
necessary to file a cost bill with the
clerk. If counsel cannot agree, a cost bill
will be filed with the clerk within thirty
days from the termination of the case. If a
cost bill is filed, the clerk will assess
costs after notice and hearing.
are to be paid through the clerk except
those that are due the clerk.
Rule 54(d)(2)(B) governs motions for attorney’s fees:
Unless a statute or a court order provides
otherwise, the motion must:
be filed no later than 14 days after
the entry of judgment;
specify the judgment and the statute,
rule, or other grounds entitling the
movant to the award;
(iii) state the amount sought or provide a
fair estimate of it; and
disclose, if the court so orders, the
terms of any agreement about fees for
the services for which the claim is
Local Rule 54.1(b) provides supplementary rules for motions
for attorney’s fees:
Consistent with the provision in [Rule]
54(d)(2)(B) permitting variation in the time
for filing a motion for attorney’s fees, a
motion for an award of attorney’s fees and
related non-taxable expenses may be filed
within 14 days from the date the Court’s
judgment becomes final.
In addition to the
requirements of [Rule] 54(d)(2), a motion
for an award of attorney’s fees shall be
supported by a memorandum setting forth the
authority of the Court to make such an
award, why the movant should be considered
the prevailing party, if such a consideration is required for the award, and any other factors that the Court should consider in
making the award.
The motion shall also be
an affidavit or declaration of counsel
setting out in detail the number of
hours spent on each aspect of the
case, and the rate customarily charged
by counsel for such work; and,
an affidavit or declaration of another
attorney in the community, who is not
otherwise involved with the case, setting out the prevailing rate charged
in the community for similar services.
Within eleven days after service of
the motion, the party against whom the
award is requested shall respond with
any objections thereto and an accompanying memorandum setting forth why the
award is excessive, unwarranted, or
54(d) and Local Rule 54.1(b).
The Motion does not state whether
the parties have reached agreement about costs, and Baxter has
not filed a cost bill with the clerk.
The Motion does not state
the amount of attorney’s fees sought “or provide a fair estimate
Baxter also has not provided either affidavit specified
by Local Rule 54.1(b).
These requirements are not technicalities.
on the Court’s decision.
They may bear
Under § 1117(a), an award of costs is
permissible, “subject to the principles of equity.”
not specified its costs, which the cost-bill requirement demands.
Assuming the parties cannot agree on costs, making an
equitable cost determination requires knowing what costs Baxter
If the Court determines that this is an “exceptional
case,” it can award reasonable attorney’s fees.
Baxter has pro-
vided no information about the fees it seeks.
Baxter contemplates a two-part process for seeking costs
First, the Court decides the present Motion, answer-
ing certain legal questions bearing on whether Baxter is entitled
determines that Baxter is entitled to costs or attorney’s fees,
Baxter will “submit an affidavit to provide proof of the costs
and attorney’s fees expended in this case.”
(Mem. ISO Mot. 5.)
That is not what the Federal Rules and Local Rules contemplate.
Baxter gives no reasons to deviate from the Rules. 2
The Response does not raise these procedural issues, instead
engaging Baxter’s argument about whether this is an “exceptional
case” justifying a fees award. (See generally Resp.) The Court
should nevertheless raise these issues sua sponte, given its
“‘broad discretion to manage its docket.’”
Moncier v. Jones,
557 F. App’x 407, 409 (6th Cir. 2014) (quoting ACLU v. McCreary
Cnty., Ky., 607 F.3d 439, 451 (6th Cir. 2010)).
provides that a court “may decide issues of liability for fees
before receiving submissions on the value of services.” In this
If Baxter chooses to seek costs and fees in this case, it
must follow the procedures set forth in Rule 54(d) and Local
To the extent those rules have deadlines based on
the date of entry of judgment or the date of termination of the
case, for purposes of awarding costs and fees only, the date of
this Order shall be treated as the date of the entry of judgment
and the date the case terminated.
The Motion is DENIED without prejudice.
So ordered this 20th day of March, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
case, piecemeal handling of the costs and fees issues is not
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?