1 800 Get Thin, LLC v. Michael Hiltzik et al
Filing
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ORDER DENYING Defendants' Motion For Attorneys' Fees and Costs 28 by Judge Otis D Wright II. Based on the foregoing, the Court DENIES Defendants Motion to for Attorneys fees. (See Order for Details). (sch)
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UNITED STATES DISTRICT COURT
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CENTRAL DISTRICT OF CALIFORNIA
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WESTERN DIVISION
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CASE CV 11-00505 ODW (PJWx)
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Plaintiff,
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v.
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Michael Hiltzik, an individual; Los
Angeles Times Communications, LLC; )
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Stuart Pfeifer; etc., et al.,
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Defendants.
_______________________________ )
1800 GET THIN, LLC,
ORDER DENYING DEFENDANTS’
MOTION FOR ATTORNEYS’ FEES
AND COSTS [28]
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I.
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INTRODUCTION
Currently before the Court is Defendants, Michael Hiltzik, Los Angeles Times
Communications, LLC, and Stuart Pfeifer’s, Motion for Attorneys’ Fees and Costs. (Dkt.
No. 28.) The Court deems the matter appropriate for decision without oral argument. See
Fed. R. Civ. P. 78; L.R. 7-15. For the following reasons, the Court DENIES Defendants’
Motion.
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II.
BACKGROUND
On July 25, 2011, this Court granted Defendants’ Motion to Dismiss with prejudice
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1800 GET THIN’s (“Plaintiff”) First Amended Complaint. (Dkt. No. 27.) The Court
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held Plaintiff’s trademark infringement allegations, that Defendants’ references to
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Plaintiff’s trademark were false and misleading, were not sufficiently pled and failed to
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state a claim under the Lanham Act. (Dkt. No. 27.) As a result, Defendants have filed
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the instant motion requesting costs and attorneys’ fees. (Dkt. No. 28.) Defendants seek
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$97,200.65 in defending against Plaintiff’s trademark infringement claims, and an
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additional $11,506.50 for the fees incurred in connection with the instant motion. (Mot.
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at 1.)
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III.
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Under the “American Rule,” each side to a lawsuit bears the costs of their own
attorneys’ fees unless a statute or private agreement provides otherwise. Carbonell v.
INS, 429 F.3d 894, 897-98 (9th Cir. 2005). The Lanham Act permits an award of
attorneys’ fees to the prevailing party in “exceptional cases.” 15 U.S.C. § 1117(a).
While the term “exceptional” is not defined by statute, “this requirement is met when the
case is either ‘groundless, unreasonable, vexatious, or pursued in bad faith.’” Cairns v.
Franklin Mint Co., 292 F.3d 1139, 1156 (9th Cir.2002). Moreover, district courts are
vested with the inherent power to issue sanctions in the form of attorneys’ fees. See
Tumpap v. Aurora Loan Servs. LLC, CIVIL NO. 10-00325 SOM-RLP, 2011 U.S. Dist.
LEXIS 78701, at *15 (D. Haw. May 24, 2011). The Ninth Circuit requires a specific
finding of bad faith before a court may issue these sanctions pursuant to its powers. Id.
(citing Fink v. Gomez, 239 F.3d 989, 992 (9th Cir. 2001)).
IV.
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LEGAL STANDARD
DISCUSSION
Defendants seek attorneys’ fees in this case pursuant to the Lanham Act, or
alternatively, through the Court’s inherent powers. The Court will address each in
turn.
a.
Lanham Act - 15 U.S.C. § 1117(a)
Defendants aver Plaintiff’s Lanham Act claims were “without merit.” (Mot. at
6.) Therefore, Defendants argue, this litigation is one of the “exceptional cases”
which justifies an award of attorneys’ fees. (Mot. at 2.) The Court, however,
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disagrees with Defendants’ position.
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To bolster their assertion that Plaintiff’s claims were without merit, Defendants
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argue that the Lanham Act “was never intended to apply to use of a trademark in news
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reporting activities.” (Mot. at 8.) However, the Court believes that this statement is
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overreaching. Although the nominative fair use defense was designed in part to
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preserve First Amendment interests, the nominative fair use doctrine does not appear
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to provide blanket protection for news reporting. Indeed, the court in New Kids on the
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Block v. News America Pub., Inc., seemed to suggest that the nominative fair use
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defense would not apply to cases where the use was “false or misleading.” 971 F.2d
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302, 307-08 (9th Cir. 1992).1 Given the fact that Plaintiff alleged that Defendants’ use
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was false and misleading, the Court does not find that Plaintiff’s claim was completely
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without merit just because Plaintiff’s allegations were found insufficient to state a
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claim. See Ant v. McPartlin, CV 09-7672 PSG (Rzx), 2010 U.S. Dist. LEXIS 122456,
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at *18-19 (C.D. Cal. Nov. 2, 2010) (noting that a party being entitled to judgement
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does not mean opposing party’s claims were groundless otherwise the “‘exceptional’
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case requirement in the statute would be a nullity.”).
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Moreover, Defendants argue that Plaintiff’s allegations were found to be “too
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speculative” and insufficient to state a claim, which entitles Defendants to attorneys’
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fees. (Mot. at 7-8.) The Court declines, however, to use this as the standard to
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characterize an “exceptional case.” There is nothing “exceptional” about failing to
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state a claim, in fact, it is a regular occurrence within the federal court system.
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Finally, Defendants argue this case is “exceptional” because Plaintiff engaged
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in abusive litigation tactics which was done in bad faith. (Mot. at 9.) Specifically,
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Defendants argue that Plaintiff filed a convoluted Complaint, filed five lawsuits
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See also, Eastwood v. National Enquirer, 123 F.3d 1249, 1250-51 (9th Cir. 1997) (noting Clint
Eastwood’s award under Lanham Act for National Enquirer’s fabrication of a purported interview with
him). The Court is in no way suggesting that the instant case is in any way analogous to Eastwood.
Rather, the Court is using this case as an illustration that a colorable argument could be made against
a publisher for a false and misleading use under the Lanham Act. Given the Court’s ruling to grant
Defendants’ Motion to Dismiss, a similar case filed by Plaintiff, or a party like Plaintiff, would not be
given the same latitude in the future as this case received.
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against Defendants,2 and filed a Motion to Amend on minimum notice. (Mot. at 9-
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11.) Although the Court agrees with Defendants that Plaintiff’s Complaint was
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cumbersome to read, subpar lawyering is not the standard to find an “exceptional
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case.”
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Moreover, of the five lawsuits filed against Defendants, two of them are filed
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by parties that are wholly independent of 1800 GET THIN’s marketing service.3 It
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should be noted, however, all these other lawsuits were neither decided before this
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Court, nor has the Court read the pleadings associated with them. Lastly, considering
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Plaintiff’s filing on minimum notice, the Court does not believe this warrants an
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award of attorneys’ fees. This case is easily distinguishable from Sci. Weight Loss,
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LLC v. U.S. Med. Care Holdings, LLC, which Defendants cite in their Motion. Case
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No. CV 08-2852 PSG (FFMx), 2009 U.S. Dist. LEXIS 64061, at *13 (C.D. Cal. July
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15, 2009) (finding an exceptional case where “Plaintiffs greatly multiplied the burden
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of defending [the] lawsuit by repeatedly filing ‘emergency’ motions). Here, Plaintiff
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was not alleged to have filed any emergency motions nor have Defendants alleged
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Plaintiff to have repeatedly filed baseless motions except for one Motion to Amend.
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For the above mentioned reasons, the Court DENIES Defendants’ Motion to
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obtain attorneys’ fees under the Lanham Act.
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b.
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The Court in this instance declines to use its discretion to award Defendants
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The Court’s Discretion
attorneys’ fees.
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Defendants do not argue that 1800 GET THIN has brought five separate lawsuits against
Defendants. Rather, Defendants argue that individuals and entities connected to 1800 GET THIN have
brought five separate lawsuits against Defendants.
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With its familiarity with this case, the Court does not believe, nor do Defendants assert, that
Beverly Hills Surgery Center LLC (“Beverly Surgery”) is in any way owned or operated by 1800 GET
THIN. Because Beverly Surgery and 1800 GET THIN are two distinct parties, the Court does not find
it reasonable to attribute Beverly Surgery’s lawsuits to 1800 GET THIN. Therefore, the Court will take
into consideration the instant case as well as the two lawsuits filed by the Omidi brothers.
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V.
Based on the foregoing, the Court DENIES Defendants’ Motion to for Attorneys’
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CONCLUSION
fees.
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IT IS SO ORDERED.
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September 13, 2011
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_________________________________
HON. OTIS D. WRIGHT, II
UNITED STATES DISTRICT JUDGE
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