106 1 revamped motion.pdf
Case 2:11-cv-08305-ODW-PLA Document 106-1 Filed 02/12/13 Page 4 of 7 Page ID #:675
MEMORANDUM OF POINTS AND AUTHORITIES
Plaintiff Slep-Tone Entertainment Corporation (“Slep-Tone”) respectfully
requests that the Court reconsider its Order dated January 15, 2013, pursuant to Rule
60(b)(6) or, in the alternative, under Rule 59(e), for the following reasons.
The Trademark Act contains a fee-shifting provision that provides that the
Court “in exceptional cases may award reasonable attorney fees to the prevailing
party.” 15 U. S. C. § 1117(a)(3). In its order, the Court found this case to be
10 “exceptional” under 15 U. S. C. § 1117(a)(3) and issued an order directing the
11 payment of attorney fees to Defendants Kelly Sugano and Taka-O.
Regardless of the Court’s conclusion that this matter constitutes an exceptional
13 case under the Trademark Act, the Court erred by awarding Defendants Sugano and
14 Taka-O attorney fees, because they are not a “prevailing party” under the applicable
It is true that the Court issued an order on November 8, 2012, dismissing this
17 action with prejudice because of the Plaintiff’s failure to prosecute the action.
18 Ordinarily, such a dismissal would render these Defendants prevailing parties.
19 However, the existence of a prior settlement agreement altered the parties’
20 relationship, such that the Defendants cannot be considered prevailing parties.
The centerpiece of the Defendants’ motion for attorney fees was the fact that
22 they had entered into a settlement agreement with Slep-Tone that provided for the
23 payment of money from the Defendants to Slep-Tone in exchange for certain other
24 consideration. While Slep-Tone’s attorney, who was and is inexplicably missing-in25 action, failed to cooperate with opposing counsel to prepare and file the necessary
26 dismissal paperwork, it cannot be disputed that the Court’s November 8 order gave to
27 the Defendants precisely the benefit of the bargain they claimed, in their motion for
28 attorney fees, not to have received: a dismissal of the action with prejudice.
MOTION FOR RECONSIDERATION
LA1 285578v3 02/12/13