Oleg Pogrebnoy v. Russian Newspaper Distribution

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 9 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLEG POGREBNOY, No. 17-56583
Plaintiff-Appellant, D.C. No.
2:10-cv-08532-PA-SS
v.
RUSSIAN NEWSPAPER DISTRIBUTION, MEMORANDUM*
INC.; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted November 7, 2018**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.
Although Oleg Pogrebnoy prevailed on his trademark infringement claim on
remand, he is before us once again. This time, Pogrebnoy challenges the district
court’s ten dollar nominal damages award, order striking his Motion to Admit
*
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).
Plaintiff’s Trial and Additional Exhibits, factual findings, and determination that
the court lacked jurisdiction over Pogrebnoy’s claim for cancellation of a
trademark registration. The parties are familiar with the facts, so we do not
recount them here. We have jurisdiction pursuant to 28 U.S.C. § 1291, and affirm.
We review for abuse of discretion the district court’s decision to award
Pogrebnoy neither Russian Newspaper Distribution, Inc.’s (“RND”) profits, nor
damages beyond a nominal award of ten dollars. See Skydive Arizona, Inc. v.
Quattrocchi, 673 F.3d 1105, 1110 (9th Cir. 2012). We cannot say “the record
contains no evidence rationally supporting [the district court’s] conclusion” that it
would not be equitable to award RND’s profits to Pogrebnoy. See id. The
evidence supports the district court’s conclusion both that there was little risk of
consumer confusion, and that RND’s infringement was not willful. See Stone
Creek, Inc. v. Omnia Italian Design, Inc., 875 F.3d 426, 441 (9th Cir. 2017)
(“[W]illfulness [is] a prerequisite for awarding a defendant’s profits.”).
Similarly, because the district court appropriately found that Pogrebnoy
failed to show both the fact and the amount of his damages, the nominal damages
award was not abuse of discretion. See Quattrocchi, 673 F.3d at 1112. The district
court’s finding that Pogrebnoy failed to prove the fact of his damages was not
error, given the scant evidence he offered—aside from his own assertions—of any
lost sales. The finding that Pogrebnoy failed to prove the amount of his damages
2
was also appropriate. Even taking into account RND’s bank records, Pogrebnoy’s
calculation of RND’s gross profits relied on mere speculation. See Lindy Pen Co.
v. Bic Pen Corp., 982 F.2d 1400, 1407–08 (9th Cir. 1993), abrogated on other
grounds by SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179 (9th Cir.
2016). We therefore need not address the admissibility of those records.
The district court did not abuse its discretion when it struck Pogrebnoy’s
Motion to Admit Plaintiff’s Trial and Additional Exhibits for failing to comply
with Local Rule 7-3. Local Rule 7-4 authorizes district courts to “decline to
consider a motion” that does not comply with Local Rule 7-3. The order striking
Pogrebnoy’s motion was well within the district court’s “considerable latitude in
managing the parties’ motion practice and enforcing local rules.” Christian v.
Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002).
Nor were the factual findings Pogrebnoy challenges clearly erroneous. See
Kirola v. City & Cty. of San Francisco, 860 F.3d 1164, 1174 (9th Cir. 2017) (“We
review the district court’s findings of fact following a bench trial for clear error.”).
The district court determined the relative credibility of Pogrebnoy and Vitaly
Matusov based on observations of their testimony. Pogrebnoy has offered no
reason to suggest the district court’s credibility determinations, which are owed
“even greater deference” than other factual findings, were “internally inconsistent.”
See Anderson v. City of Bessemer City, 470 U.S. 564, 575 (1985). In view of the
3
record, the finding that the New York iteration of Kyрьер ceased publication in
2011 was not clearly erroneous.
Finally, we need not decide whether the district court erred when it
concluded it lacked jurisdiction over Pogrebnoy’s claim for cancellation of the
LAKurier.com mark’s registration. Pogrebnoy could have raised this issue in his
previous appeal but failed to do so, so he has waived the argument. See United
States v. Arreguin, 735 F.3d 1168, 1178 (9th Cir. 2013); see also generally
Opening Brief, Pogrebnoy v. Russian Newspaper Distribution, Inc., No. 15-55127
(9th Cir. July 29, 2015); Reply Brief, Pogrebnoy v. Russian Newspaper
Distribution, Inc., No. 15-55127 (9th Cir. Nov. 5, 2015).
AFFIRMED.
4