Opinion
CIVIL NO. 1:02CV00860
April 29, 2003
ORDER
On March 17, 2003, Plaintiff moved for entry of a default judgment pursuant to Rule 55, Federal Rules of Civil Procedure, against Defendant U.S. Cast, Inc., d/b/a Sun Creations. The Clerk of this court has previously entered Defendant U.S. Cast, Inc., d/b/a Sun Creations' default on February 3, 2003. No response has been filed to Plaintiff's March 17, 2003, motion for default judgment.
Because actual damages are speculative due to Defendant U.S. Cast, Inc., d/b/a Sun Creations' failure to participate in this litigation, Plaintiff requests that the court award reasonable attorney's fees in addition to the issuance of a permanent injunction. Plaintiff argues in its brief that U.S. Cast, Inc., d/b/a Sun Creations' failure to alter its behavior or respond to Plaintiff's notices establish willful infringement of Plaintiff's patent and make this an exceptional case authorizing counsel fees under 35 U.S.C. § 285. Plaintiff's brief makes reference to an apparent notice letter referenced as "Exhibit A" and an alleged settlement proposal by the Plaintiff referenced as "Exhibit C." Neither of these alleged exhibits are attached to the Plaintiff's motion or brief and have not been presented to the court.
In its affidavit in support of its petition for reasonable attorney's fees, Plaintiff's counsel has only attached copies of billing "for professional services rendered" without any indication of the precise nature of the service performed, the hourly rate charged, the experience of counsel, the reasonableness of such rate, and other information customarily required to support an award of attorney's fees. See Local Rule 54.2. Furthermore, in its proposed order, Plaintiff proposes to enjoin itself ("Hanamint, its officers, agents, servants, employees and attorneys") from infringing the patent at issue.
The court will consider entering a permanent injunction and awarding reasonable costs and attorney's fees after a proposed order in proper form and fee petition are submitted which give due attention to the rules of this court and thorough proofreading.
NOW, THEREFORE, IT IS ORDERED that Plaintiff's motion for default judgment against Defendant U.S. Cast, Inc., d/b/a Sun Creations is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff's motion for attorney's fees and costs is DENIED without prejudice.
IT IS FURTHER ORDERED that Plaintiff may file an amended application for attorney's fees and costs with supporting documentation after consultation and effort to reach agreement on the amount of such fees and costs with the Defendant U.S. Cast, Inc., d/b/a Sun Creations, as required by Local Rule 54.2. Any amended application and certificate of consultation shall be filed within thirty (30) days of the date of this order. Any objection by Defendant U.S. Cast, Inc., d/b/a Sun Creations or counsel to the reasonableness of the fees and costs sought shall be filed within ten (10) days of the filing of the Plaintiff's fee application.