Baxter Bailey & Associates v. Powers & Stinson, Inc. et al
ORDER denying 84 Motion for Attorney Fees. Signed by Judge Samuel H. Mays, Jr on 10-17-2017. (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 Attorney’s Fees (“Motion”) filed by Plaintiff Baxter Bailey & Associates, Inc. on
April 3, 2017.
(ECF No. 84; see also ECF No. 84-1.)
McKnatt responded on April 9, 2017.
(ECF No. 85.)
For the following reasons, the Motion is DENIED.
The relevant facts are stated more fully in Section I of
the Court’s Order dated July 5, 2016 (the “July 2016 Order”).
Baxter Bailey & Assocs., Inc. v. Powers & Stinson, Inc., No. 143012, 2016 WL 7497581, at *1 (W.D. Tenn. July 5, 2016).
section addresses proceedings since the July 2016 Order.
In the July 2016 Order, the Court denied motions for summary judgment filed by Plaintiff and Defendants.
(Id. at *6.)
A jury trial was held on July 25 and 26, 2016.
ECF No. 73; Minute Entry, ECF No. 75.)
The jury considered two
§ 1125(a) and (c); and (2) violation of the Anticybersquatting
Consumer Protection Act (“ACPA”), 15 U.S.C. § 1125(d)(1).
No. 76; see also ECF No. 77.)
The jury found for Defendants on
(See ECF No. 76 at 1, 3.)1
Before trial, Plaintiff elected “to accept statutory damages should it prevail at trial.”
(ECF No. 71.)
Under the ACPA,
those damages were between $1,000.00 and $100,000.00, and for
the jury to determine.
15 U.S.C. § 1117(d).
The jury awarded
(ECF No. 76 at 4.)
On August 9, 2016, Plaintiff filed a Motion for Costs and
(ECF No. 81; see also ECF No. 81-1.)
ants responded on August 18, 2016.
(ECF No. 82.)
On March 20,
2017, the Court issued an Order denying Plaintiff’s Motion for
Costs and Attorney’s Fees without prejudice.
(ECF No. 83.)
Court instructed Plaintiff that, if it wished “to seek costs and
fees in this case, it must follow the procedures set forth in
Unless otherwise noted, all pin cites for record citations are
to the “PageID” page number.
Rule 54(d) and Local Rule 54.1.”
(Id. at 504.)
The Court also
said that, “[t]o the extent those rules have deadlines based on
the date of entry of judgment or the date of termination of the
case . . . the date of this Order shall be treated as the date
of the entry of judgment and the date the case terminated.”
On April 3, 2017, Plaintiff filed a second Motion for Attorney’s Fees.
(ECF No. 84; see also ECF No. 84-1.)
responded on April 9, 2017.
(ECF No. 85.)
15 U.S.C. § 1117(a) states that, “[t]he court in
exceptional cases may award reasonable attorney fees to the prevailing party.”
Rule 54(d)(2)(B)2 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
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.
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 governing
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
Under 15 U.S.C. § 1117(a), a district court may award reasonable attorney fees to the prevailing party in “exceptional”
The statute does not define “exceptional,” but the Sixth
Circuit has held that a case is not exceptional unless “the infringement was malicious, fraudulent, willful, or deliberate.”
Hindu Incense v. Meadows, 692 F.2d 1048, 1051 (6th Cir. 1982).
“A finding of bad faith under the ACPA does not necessarily compel a court to find ‘malicious, fraudulent, willful or deliberate’ conduct.”
Audi AG v. D'Amato, 469 F.3d 534, 551 (6th Cir.
“Trial judges have considerable discretion in [deciding]
§ 1117 motions for attorney fees.”
Sovereign Order of Saint
John of Jerusalem, Inc. v. Grady, 119 F.3d 1236, 1244 (6th Cir.
A case cannot be exceptional “if there is the slightest
doubt” as to whether the defendant acted with the requisite intent.
Hindu Incense, 692 F.2d at 1052 (citing O'Brien Int'l,
Inc. v. Mitch, 209 USPQ 212, 221 (N.D. Cal. 1980)).
The United States Supreme Court’s recent decision in Octane
Fitness, LLC v. ICON Health & Fitness, Inc. also provides guidance.
134 S. Ct. 1749 (2014).
provision, 35 U.S.C. § 285.
Octane Fitness clarified the
Id. at 1751.
identical to 15 U.S.C. § 1117(a).
with 38 U.S.C. § 285.
35 U.S.C. § 285 is
Compare 15 U.S.C. § 1117(a)
Statutes using the same language are in-
See United States v. Hynes, 467 F.3d
951, 967 (6th Cir. 2006) (“The Supreme Court has held that statutes containing similar language and having a similar underlying
purpose should be interpreted consistently.”) (citing Northcross
In Octane Fitness, the Supreme Court held that, applying
the ordinary meaning of “exceptional,” fees should be awarded
only in a case “that stands out from others with respect to the
substantive strength of a party's litigating position (considering both the governing law and the facts of the case) or the unreasonable manner in which the case was litigated.”
The Court did not state a “precise rule or formula for
making these determinations,” and said that district courts have
discretion to make exceptional case determinations on a case-bycase basis.
Id. at 1756.
The Court provided a “‘nonexclusive’
list of ‘factors,’ including ‘frivolousness, motivation, objective unreasonableness (both in the factual and legal components
of the case) and the need in particular circumstances to advance
considerations of compensation and deterrence.’”
n.6 (internal quotations omitted).
exceptional case is “rare.”
Id. at 1756
The Court emphasized that an
Id. at 1756.
Given Sixth Circuit precedent and Octane Fitness, this case
is not exceptional.
A review of the record does not suggest
that the infringement was malicious, fraudulent, willful, or deliberate.
This is not a case of repetitive or wide-scale inDefendants were found liable under the ACPA for
their use of a single domain name that was confusingly similar
to Plaintiff’s domain name.
Defendants’ arguments in defense of
their actions were not frivolous or unreasonable, as demonstrated by the jury’s decision to award Plaintiff $1,000 -- the minimum statutory damages available under the ACPA.
(ECF No. 79 at
Plaintiff does not claim, and the Court cannot find evidence,
that Defendants engaged in frivolous motion practice intended to
delay resolution of the case.
In the nearly three-year history
of the case, Defendants have not engaged in egregious or abusive
conduct that would cause them to stand out.
The $1,000 awarded is sufficient compensation for Plaintiff
and deterrence for Defendants.
Because the case is not excep-
tional, attorney’s fees are not warranted.
For the foregoing reasons, Plaintiff’s Motion is DENIED.
So ordered this 17th day of October, 2017.
/s/ Samuel H. Mays, Jr.
SAMUEL H. MAYS, JR.
UNITED STATES DISTRICT JUDGE
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