Practice Tips—Ask The District Judge To Treat Fee Motion As A Rule 59 Motion Or File Two Appeals, One On The Merits And One On The Fees Ruling.
Nutrition Distribution LLC v. IronMag Labs, LLC, No. 19-55251 (9th Cir. Aug. 25, 2020) (published) was a Lanham Act case where a plaintiff was denied monetary relief, was issued an injunction, and was denied fees on a preliminary basis through a December 13, 2018 judgment. On December 27, 2018, plaintiff moved for post-judgment fees, a motion denied on January 30, 2019. Plaintiff filed an appeal of the merits and fee rulings on March 1, 2019, within 30 days of the eventual fees ruling but almost 80 days after the initial judgment.
The Ninth Circuit first decided that the appeal of the merits ruling was untimely because it was way after 30 days from December 13, 2018. The filing of the fees motion did not extend the time for filing an appeal unless the district judge grants an extension under FRCP 58(e) or agrees to treat the fees motion as a Rule 59 motion which allows for more time.
With respect to the fees ruling (which could be reviewed), the district judge did not abuse its discretion in determining that it was not “exceptional” under the Lanham Act fee-shifting statute: the motion itself violated local rules; plaintiff obtained no damages from defendant’s advertising activities; and plaintiff had filed 80 similar advertising lawsuits over a 3-year span.
BLOG PRACTICE TIP—This case provides a practice tip in this area. Either ask the district court to treat the fees motion as a Rule 59 motion or, if no extension is granted by the district judge, appeal the merits and fees rulings separately (with the Ninth Circuit suggesting this double appealing process carries no consequences, feeding into “healthy lawyer paranoia”).
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