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Wing Enterprises, Inc. v. Tricam Industries, Inc.

United States District Court, D. Minnesota

November 6, 2019

Wing Enterprises, Inc., d/b/a Little Giant Ladder Systems, a Utah corporation, Plaintiff,
Tricam Industries, Inc., a Minnesota corporation, Defendant.

          Mark A. Miller, Brett L. Foster, and Elliot James Hales, Dorsey & Whitney LLP, Salt Lake City, UT, and Clint Conner and Caitlin L. D. Hull, Dorsey & Whitney LLP, Minneapolis, MN, for Plaintiff Wing Enterprises, Inc.

          Eric H. Chadwick, Patterson Thuente Christensen Pedersen, PA, Minneapolis, MN, for Defendant Tricam Industries, Inc.


          Eric C. Tostrud United States District Judge

         On July 9, 2019, the Court granted Defendant Tricam Industries' summary-judgment motion on Plaintiff Wing Enterprises' state and federal false-advertising claims. See SJ Order, Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2019 WL 2994465 (D. Minn. July 9, 2019) (“SJ Order”) [ECF No. 370]. Judgment was entered in this matter the following day. ECF No. 371. Tricam then moved for an award of attorneys' fees and nontaxable costs [ECF No. 372], and Wing moved to stay resolution of that motion [ECF No. 375] until its appeal, which is now pending in the Federal Circuit [ECF No. 405], is resolved. While those motions were pending, Tricam filed a bill of costs, as contemplated by Local Rule 54.3, seeking a total of $31, 727.44 in costs. ECF No. 404. Wing objected to that bill of costs in certain limited respects. ECF No. 413. The Clerk entered a cost judgment in Tricam's favor, but in a lesser amount than Tricam had requested [ECF No. 417], and Tricam moved for a review of that cost judgment [ECF No. 419]. The Parties' disputes on Tricam's fee motion, its motion to review the cost judgment, and Wing's motion to stay have now been fully briefed. For the reasons described below, Wing's motion to stay will be denied, Tricam's motion for attorneys' fees will be denied, its motion to review the cost judgment will be granted, and it will be awarded the additional $3, 416.24 it now seeks in costs.


         Wing's motion to stay resolution of the motion for attorneys' fees pending resolution of its appeal will be denied because it is more efficient “to address the issue now with the underlying facts and circumstances of this litigation freshly in mind, rather than deferring consideration for” a year or more while this case awaits a decision on appeal. Upsher-Smith Labs., Inc. v. Pan American Labs., Inc., No. Civ.01-352 ADM/AJB, 2004 WL 902176, *3 (D. Minn. Apr. 26, 2004) (citing D. Minn. LR 54.3(b) and Comments thereto). As Wing itself notes, deciding the motion now further serves the goal of efficiency because, for the reasons discussed below, the Court will deny the fee motion, and to the extent Tricam might wish to argue that denial constitutes an abuse of discretion, it will be able to do so in connection with the pending appeal rather than through some separate process in the distant future. See Wing Fee Br. at 5-6 [ECF No. 398].


         The standard for awarding a prevailing defendant attorneys' fees under either the Lanham Act or under Minn. Stat. § 325D.45, subd. 2, is that such an award is appropriate “only . . . in exceptional cases.” B&B Hardware, Inc., v. Hargis Indus., Inc., 912 F.3d 445, 454 (8th Cir. 2018) (citing 15 U.S.C. § 1117(a)); Minn. Stat. § 325D.45, subd. 2 (attorneys' fees permitted in false-advertising case “if . . . the party complaining of a deceptive trade practice has brought an action knowing it to be groundless”); Fair Isaac Corp. v. Experian Info. Sols. Inc., 711 F.Supp.2d 991, 1010 (D. Minn. 2010) (denying motion for attorneys' fees). “An exceptional case is one in which a plaintiff brought an action that ‘was groundless, unreasonable, vexatious, or was pursued in bad faith.'” B&B, 912 F.3d at 454 (quoting Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 123 (8th Cir. 1987)). “Where the defendant is the prevailing party, the standard is not whether the claimant filed suit in good faith but rather whether plaintiff's action was oppressive.” Mt. Mktg. Grp., LLC v. Heimerl & Lammers, LLC, No. 14-cv-846 (SRN/BRT), 2016 WL 2901735, at *2 (quotation omitted).

         Having carefully reviewed a stack of double-sided summary-judgment and Daubert submissions more than two feet thick, the Court can say with a rare degree of confidence that this is not an exceptional case within the meaning of the Lanham Act. The Court awarded Tricam summary judgment on a very narrow basis: after the Court ruled that the expert testimony of one of Wing's experts, Hal Poret, must be excluded, Wing did not have evidence sufficient to create a genuine issue of material fact as to whether the ANSI-conformance statement (as distinct from the OSHA-conformance statement) on its ladders was material to consumers' purchasing decisions. See generally SJ Order, 2019 WL 2994465, at *5-13. The Daubert motion itself presented the Court with a complicated question, and if the circumstances were slightly different-for example, if the Parties' differing understandings about whether the OSHA-conformance statements on the ladder necessarily depended on the ANSI-conformance statements on the ladder had crystalized and been presented to the Court a bit earlier in the litigation, see generally Discovery Order, Wing Enters., Inc. v. Tricam Indus., Inc., No. 17-cv-1769 (ECT/ECW), 2018 WL 6326416 (D. Minn. Dec. 4, 2018) [ECF No. 151] (granting Tricam's motion to strike Wing's interrogatory responses as untimely)-the admissibility of Poret's testimony would have presented a much closer call. Had that testimony come in, it would have created a triable issue of fact as to the materiality element of Wing's claims. Moreover, in the same order excluding Poret's expert testimony, the Court ruled that the expert testimony of another expert, Donald Bloswick, was admissible. SJ Order, 2019 WL 2994465, at *3-4. That testimony created a triable fact as to the literal falsity of Tricam's ANSI-conformance statements. And, as the Court has already observed, analyzing the other elements of Wing's false-advertising claims in the context of the summary-judgment motion:

would [have] require[d] the Court to consider novel or substantially unsettled legal issues, including: (1) whether statements provided by a supplier to a retailer and published on the retailer's website might constitute a statement “by” the supplier; (2) whether a dispute over the literal falsity of a statement presents a question of law or one of fact; (3) whether, in a non-comparative case, a presumption of deception survives the Eighth Circuit's decision in Everest Capital Ltd. v. Everest Funds Mgmt., L.L.C., 393 F.3d 755 (8th Cir. 2005); and (4) whether Wing has met whatever unknown standard now applies to the remedy of disgorgement following the Eighth Circuit's decision in Martinizing International, LLC v. BC Cleaners, LLC, 855 F.3d 847 (8th Cir. 2017).

SJ Order, 2019 WL 2994465, at *12. The Court will not speculate which Party might have come out on top with respect to any of those issues, but the mere existence-and sheer number-of such “novel or substantially unsettled legal issues, ” id., makes it impossible for the Court to conclude that Wing's claims were “groundless, unreasonable, vexatious, or [ . . .] pursued in bad faith, ” such that an award of attorneys' fees might be warranted. B&B, 912 F.3d at 454 (quoting Hartman, 833 F.2d at 123).


         Tricam timely filed a bill of costs claiming a total of $31, 727.44 in taxable costs, of which the Clerk awarded $15, 870.20. ECF Nos. 404 at 1, 417. The costs Tricam sought for transcripts and disbursements for printing were awarded in their entirety. ECF No. 417. It was awarded $160.00 of the $248.40 it sought for witnesses, and was awarded nothing for the $15, 768.84 it claimed for certain copying fees relating to e-discovery. Id. The Clerk explained that Tricam had not provided sufficient explanation and documentation of its witnesses' mileage costs, and further found that “[e]lectronic discovery costs are not taxable by the Clerk.” ECF No. 417-1.

         As the Parties briefed Tricam's subsequent motion to review the cost judgment, the issues narrowed. Tricam's motion seeks the $88.40 the Clerk denied in witness costs relating to mileage, and $3, 327.84 of the larger amount Tricam previously claimed as copying fees. Cost Judgment Mot. at 1 [ECF No. 420]; Mem. in Supp. of Cost Judgment Mot. at 4 [ECF No. 422]. Wing does not oppose Tricam's motion insofar as it seeks an additional $88.40 for witness-mileage costs, and Tricam will be awarded that amount. See Mem. in Opp'n to Cost Judgment Mot. at 4 [ECF No. 425]. But Wing argues that the e-discovery expenditures Tricam seeks are not taxable because they were done for the mutual convenience of the Parties, not pursuant to any court order or agreement. Id. at 1-2. The Clerk's order denying the costs at issue is reviewed de ...

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