Anhing Corporation v. Viet Phu, Inc. ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 15 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANHING CORPORATION, a California No. 17-55851
corporation,
D.C. No.
Plaintiff-Appellee, 2:13-cv-04348-BRO-JCG
v.
MEMORANDUM*
VIET PHU, INC., a California corporation,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Beverly Reid O'Connell, District Judge, Presiding
Submitted October 11, 2018**
Pasadena, California
Before: WATFORD and OWENS, Circuit Judges, and PRESNELL,*** District
Judge.
Viet Phu, Inc., appeals from the district court’s order denying its renewed
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Gregory A. Presnell, United States District Judge for
the Middle District of Florida, sitting by designation.
motion for attorneys’ fees under the Lanham Act, 15 U.S.C. § 1117(a). We review
for abuse of discretion a district court’s decision on attorneys’ fees under the
Lanham Act. SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1181
(9th Cir. 2016) (en banc) (per curiam). As the parties are familiar with the facts,
we do not recount them here. We affirm.1
Under the Lanham Act, a court may award attorneys’ fees if a case was
“exceptional.” 15 U.S.C. § 1117(a). A district court “should examine the ‘totality
of the circumstances’ to determine if the case was exceptional, exercising equitable
discretion in light of [identified] nonexclusive factors . . ., and using a
preponderance of the evidence standard.” SunEarth, 839 F.3d at 1181 (quoting
Octane Fitness, LLC v. ICON Health & Fitness, 134 S. Ct. 1749, 1756 (2014)).
The district court thoroughly addressed Viet Phu’s arguments and was well
within its discretion in determining that the case was not so “exceptional” that it
warranted an award of attorneys’ fees. Contrary to Viet Phu’s contention, the
district court examined the “totality of the circumstances,” as required by
SunEarth.
The district court also did not abuse its discretion by denying Viet Phu’s
request for attorneys’ fees spent defending the prior appeal. We transferred to the
district court consideration of Viet’s Phu’s eligibility for appellate attorneys’ fees
1
We grant Viet Phu’s Motion for Judicial Notice in Support of Opening Brief.
2
under the Lanham Act, not because the prior appeal was purportedly frivolous
under Federal Rule of Appellate Procedure 38.
Accordingly, the district court did not abuse its discretion by denying Viet
Phu’s renewed motion for attorneys’ fees.
AFFIRMED.
3