United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter comes before the court upon defendant Utility
Associates, Inc.'s Motion for Attorneys' Fees (Doc.
252) and plaintiff Digital Ally, Inc.'s Motion to Strike,
or To Stay All Proceedings Respecting, Defendant's Motion
for Attorneys' Fees (Doc. 260). Plaintiff first filed
this case on June 4, 2014. (Doc. 1.) On March 31, 2017, the
court granted defendant's motion for summary judgement on
all of plaintiff's claims. (Doc. 251.) Defendant then
moved for attorney fees (Doc. 252) and plaintiff filed a
notice of appeal. (Doc. 256.) Defendant moves for attorney
fees pursuant to five separate statues: Fed.R.Civ.P. 11, 28
U.S.C. § 1927, 35 U.S.C. § 285, 15 U.S.C. §
1117(a), and Kan. Stat. Ann. 60-3323. (Doc. 252.) The court
denies defendant's motion for attorney fees for the
reasons discussed below.
preliminary matter, defendant timely requested attorney fees
in the pretrial order. Plaintiff argues defendant waived its
right to attorney fees by requesting the fees in the pretrial
order rather than including the request in the complaint.
(Doc. 269 at 10-12.) Plaintiff contends attorney fees are
special damages and defendant did not plead with the
specificity required under Fed. R. of Civ. P. 9(g).
(Id.) In support, plaintiff cites caselaw from other
circuits arriving at this conclusion. (Id.) However,
the District of Kansas does not adopt the 9(g) requirement
for attorney fees. Rural Water Dist. No. 1,
Ellsworth Cnty., Kan. v. City of Wilson, 184 F.R.D.
632, 633 (D. Kan. 1998). The court can issue attorney fees,
“even if such fees were not claimed in the complaint or
pretrial order.” Id. The court finds
defendant's request for attorney fees timely in this
cannot maintain an action for Fed.R.Civ.P. 11 sanctions,
because it did not comply with the provision's
requirements and is untimely. To recover costs under 11(b),
defendant must meet the “safe harbor” provision
of 11(c). The safe harbor provision requires the movant to
serve the opposing party with any Rule 11 motions, but the
motion should not be filed with the court until 21 days after
service. Fed.R.Civ.P. 11(c). Here, defendants did not abide
by the 21-day “safe harbor” provision.
not meeting the provisions requirements, the Rule 11 motion
is untimely. The purpose of the “safe harbor”
provision is to give the offending party an opportunity to
either withdraw or correct the pleading. Hutchinson v.
Pfeil, 208 F.3d 1180, 1184 (10th Cir. 2000). Any Rule 11
motion after summary judgment violates the twenty-one day
“safe harbor” provision, because no opportunity
exists to fix the error. Id. In any event, the court
finds that Rule 11 sanctions were not warranted by the
plaintiff's actions in this case.
U.S.C. § 1927
court will not award attorney fees under 28 U.S.C. §
1927. The statute allows the court to require a party to pay
attorney fees and expenses of an opposing party if the court
determines that the party has multiplied “the
proceedings in any case unreasonably and vexatiously.”
28 U.S.C. § 1927 (1980). Awarding attorney fees or
expenses is discretionary and the court declines to do so in
U.S.C. § 285
is not entitled to attorney fees under 35 U.S.C. § 285
because the case had no patent infringement claims.
Plaintiffs seek attorney fees under 35 U.S.C. § 285.
(Doc. 252 at 6.) Section 285 states that a “court, in
exceptional cases may, award reasonable attorney fees to the
prevailing party.” 35 U.S.C. § 285. The court does
not find this to be an exceptional case. Attorney fees are
U.S.C. § 1117(a)
the Lanham Act, the court has discretion to award reasonable
attorney fees in an exceptional case. 15 U.S.C. §
1117(a) (2008). The Tenth Circuit has not had the opportunity
to review what is considered an exceptional case since the
Supreme Court's opinion in Octane Fitness, LLC v.
ICON Health & Fitness, Inc. 134 S.Ct. 1749, 1754
(2014). In Octane Fitness, the Supreme Court
interpreted when a case is exceptional under the Patent Act
(which is identical to the fee provision in the Lanham Act
and which the majority of circuits apply to Lanham Act
attorney fee requests). Id. It explained that
exceptional cases are cases that either “stand out from
others with respect to the substantive strength of a
party's litigating position” or were litigated in
an unreasonable manner. Octane Fitness, LLC v. ICON
Health & Fitness, Inc., 134 S.Ct. 1749, 1756 (2014).
When evaluating the strength of a party's litigating
position, the court must evaluate “both the governing
law and the facts of the case.” Id. The
district courts use their discretion to decide when a case is
exceptional based on a case-by-case analysis. Id.
court denies defendants claim for attorney fees. Using the
courts discretion, the court finds plaintiff's case is
not exceptional. First, plaintiff's claims were not
litigated in an unreasonable enough manner to warrant
attorney fees. Second, even though defendant received summary
judgment on all claims, plaintiff's case did not
sufficiently “stand out” as compared to other
claims. Under this courts discretion and experience, attorney
fees are not warranted.