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recommending awarding fees because of " the entry of default judgment against Defendant on a claim for willful infringement, the imposition of case-dispositive sanctions for Defendant's willful failure to comply with the Court's orders and to obtain counsel, and the order finding Defendant in contempt of the preliminary injunction order"
Summary of this case from W. Falcon, Inc. v. Moore Rod & Pipe, LLCOpinion
Case No. 2:12-cv-00053-GMN-NJK
04-20-2015
AEVOE CORP., Plaintiff(s), v. AE TECH CO., LTD., et al., Defendant(s).
CORRECTED REPORT AND RECOMMENDATION (Docket No. 679)
Pending before the Court is Plaintiff's motion for treble damages, for attorney fees, and for costs. Docket No. 679. No response was filed by Defendant AE Tech ("Defendant"). For the reasons discussed more fully below, the undersigned RECOMMENDS that the motion be GRANTED. I. Treble Damages
Plaintiff requests that its damages be trebled pursuant to 35 U.S.C. § 284. Although the Court could grant the request for trebled damages as unopposed, see Local Rule 7-2(d), the undersigned has reviewed the motion and record. Section 284 provides that "the court may increase the damages up to three times the amount found or assessed." Enhanced damages are punitive in nature and are based on the conduct and culpability of the infringer. Jurgens v. CBK, Ltd., 80 F.3d 1566, 1570 (Fed. Cir. 1996). Enhanced damages are only available upon a finding of willful infringement. See, e.g., in re Seagate Tech., LLC, 497 F.3d 1360, 1368 (Fed. Cir. 2007) (en banc). Nonetheless, "a finding of willfulness does not require an award of enhanced damages; it merely permits it." Id. Instead, the enhancement of damages is within the discretion of the district court and is informed by the totality of the circumstances. See State Indus., Inc. v. Mor-Flo Indus., Inc., 948 F.2d 1573, 1576 (Fed. Cir. 1991); see also Jurgens, 80 F.3d at 1571 (a finding of bad faith litigation conduct standing alone is not sufficient to award enhanced damages, but may be used as a factor in determining whether or how much to increase damages once willful infringement is found).
Viewing the record and in light of the totality of the circumstances, the Court agrees with Plaintiff that an award of treble damages is proper in this case based on, inter alia, (1) the entry of default judgment against Defendant on a claim for willful infringement, see Docket No. 671; see also Docket No. 44 at ¶ 38, (2) the imposition of case-dispositive sanctions for Defendant's willful failure to comply with the Court's orders and to obtain counsel, Docket No. 650; see also Docket No. 671 (adopting report and recommendation), and (3) the order finding Defendant in contempt of the preliminary injunction order, see Docket Nos. 65, 132. Cf. TruSeal Techs., Inc. v. Beijing Hulali Architecture Decoration Co., 2010 WL 5387585, *2 (D. Nev. Dec. 21, 2010) (awarding treble damages in context of a defaulting defendant based on allegations of willful infringement and bad faith litigation conduct). Accordingly, the undersigned RECOMMENDS that Plaintiff be awarded treble damages pursuant to 35 U.S.C. § 284. II. Attorney Fees
Plaintiff next requests an award of attorney fees pursuant to 35 U.S.C. § 285. Although the Court could grant the request for attorney fees as unopposed, see Local Rule 54-16(e), the undersigned has reviewed the motion and record. Section 285 permits the awarding of reasonable attorney fees in "exceptional cases." Courts determine whether a case is "exceptional" based on the totality of the circumstances. Octane Fitness, LLC v. Icon Health & Fitness, Inc., ___ U.S. ___, 134 S.Ct. 1749, 1756 (2014). An exceptional case is one that "stands out from others." Id. In making that determination, the Court may look to whether the case was litigated in an unreasonable manner. Id. Furthermore, "a case presenting either subjective bad faith or exceptionally meritless claims may be sufficient" to be deemed exceptional. Id. at 1757.
The Court agrees with Plaintiff that this case qualifies as "exceptional" for purposes of Section 285 based on, inter alia, (1) the entry of default judgment against Defendant on a claim for willful infringement, see Docket No. 671; see also Docket No. 44 at ¶ 38, (2) the imposition of case-dispositive sanctions for Defendant's willful failure to comply with the Court's orders and to obtain counsel, Docket No. 650; see also Docket No. 671 (adopting report and recommendation), and (3) the order finding Defendant in contempt of the preliminary injunction order, see Docket Nos. 65, 132. Considering the totality of the circumstances, a finding that this is an exceptional case is appropriate. Accordingly, the undersigned RECOMMENDS that Plaintiff be found to be entitled to an award of attorney fees pursuant to 35 U.S.C. § 285.
As to the amount of attorney fees to be awarded, Plaintiff submitted evidence of its counsel's time spent and hourly rates. See Docket Nos. 684-690. Defendant failed to object to any of the time claimed or rates sought. Accordingly, the undersigned hereby RECOMMENDS that Plaintiff be awarded $2,491,004.25 in attorney fees as requested. See Local Rule 54-16(e). III. Costs
The pending motion seeks an award of $589,805.98 in costs pursuant to Fed. R. Civ. P. 54(d). See Docket No. 679 at 14-15. Plaintiff submitted a bill of costs and evidence supporting the costs sought. Docket Nos. 680-683. Defendant failed to object to either Plaintiff's entitlement to costs or to the amount or types of costs claimed. Accordingly, the undersigned hereby RECOMMENDS that Plaintiff be awarded $589,805.98 in attorney fees as requested. See Local Rule 54-13(b).
IV. Conclusion
For the reasons discussed more fully above, the undersigned RECOMMENDS that Plaintiff's motion for treble damages, for attorney fees, and for costs be GRANTED.
IT IS SO ORDERED
DATED: April 20, 2015
/s/_________
NANCY J. KOPPE
United States Magistrate Judge
NOTICE
Pursuant to Local Rule IB 3-2 any objection to this Report and Recommendation must be in writing and filed with the Clerk of the Court within 14 days of service of this document. The Supreme Court has held that the courts of appeal may determine that an appeal has been waived due to the failure to file objections within the specified time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file objections within the specified time and (2) failure to properly address and brief the objectionable issues waives the right to appeal the District Court's order and/or appeal factual issues from the order of the District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch. Dist., 708 F.2d 452, 454 (9th Cir. 1983).