Free Order on Motion for Attorney Fees - District Court of Arizona - Arizona

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Best Western International, Inc., Plaintiff, vs. Hosmer Hospitality, LLC, Defendant.

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No. CV-04-0469-PHX-PGR OPINION and ORDER

As a result of a hearing held on October 18, 2004, the Court orally entered a bench ruling finding defendant Hosmer Hospitality, LLC in civil contempt for violating the Court's preliminary injunction order (doc. #22). Pursuant to that hearing, the Court now formally finds as follows:1 1. The Court entered its Order for Preliminary Injunction ("Order") (doc. #22) on September 2, 2004. The Order, inter alia, enjoined defendant Hosmer Hospitality, LLC, and its officers, agents, servants. employees and attorneys from using, displaying, or

The Court has delayed the entry of this order due to the parties having entered into settlement negotiations subsequent to the Court's bench ruling and the defendant having informed the Court that it had hired a bankruptcy attorney in preparation for filing for bankruptcy protection. The Court is now entering its order because there is no indication in the record either that the parties are close to settling this matter or that the defendant has filed for bankruptcy.

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advertising the plaintiff's "Best Western" name, trademarks and service marks, and from committing any acts calculated to cause others to believe that the defendant is in any way connected to, associated with or sponsored by the plaintiff. The plaintiff filed its bond required by the Order with the Clerk of the Court on September 1, 2004. 2. Pursuant to the plaintiff's Motion for Order Directing Defendant Hosmer Hospitality, LLC, to Show Cause Why it Should Not be Held in Contempt (doc. #23), filed September 23, 2004, the Court held an Order to Show Cause hearing on October 18, 2004. The defendant was represented by counsel at that hearing. 3. The defendant, which had actual knowledge of the terms of the Order, acknowledged that it continued to display at its hotel property in Tacoma, Washington various signs and other items representing the hotel to be affiliated with Best Western, in violation of the Order. The defendant, through its counsel, represented to the Court that it did not cover or remove the references to Best Western from its hotel property until at least October 14, 2004. Evidence presented to the Court indicates that the defendant continued to represent its hotel property as being affiliated with Best Western on an Internet web site as of the date of the October 18, 2004 hearing. 4. The Court finds the defendant to be in civil contempt of the Order because it disobeyed a specific and definite court order of which it had knowledge by failing to take all reasonable steps within its power to comply. See In re Dual-Deck Video Cassette Antitrust Litigation, 10 F.3d 693, 695 (9th Cir. 1993). Also pending before the Court is the plaintiff's Application for Attorney's Fees (doc. #28), wherein the plaintiff seeks an award of $1,125.00 for its attorney's fees incurred in prosecuting its contempt application. Having considered the parties' memoranda, the Court finds that the plaintiff's application should be granted. First, an award of attorney's fees for civil contempt is within the discretion of a district court, Harcourt Brace Jovanovich Legal and Professional Publications, Inc. v. Multistate Legal Studies, Inc., 26 F.3d 948, 953 (9th Cir. 1994), and the Court, having ordered the plaintiff to file a fee application in its ruling on October 18, 2004, has -2Filed 09/29/2005

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determined that an award of attorney's fees is an appropriate remedial measure for the defendant's contempt. Second, the Court rejects the defendant's sole defense to the application, which is that while it may have been negligent in complying with the preliminary injunction order it did not purposefully and willfully disregard that order, because in the Ninth Circuit "civil contempt need not be willful to justify a discretionary award of fees and expenses as a remedial measure." Perry v. O'Donnell, 759 F.2d 702 (9th Cir. 1985). Third, the Court, having considered the twelve factors of Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir. 1975), cert. denied, 425 U.S. 951 (1976), concludes that the $1,125.00 requested, representing five hours of work by the plaintiff's attorney at $225 per hour, is a reasonable amount under the circumstances. Also pending before the Court is the plaintiff's Motion for Order Directing Defendant Hosmer Hospitality. LLC, and its Corporate Members and Officers to Show Cause Why They Should Not be Held in Contempt (doc. #36). The Court finds that the motion should be denied because, first, no evidence of any violation of the preliminary injunction order was submitted with the motion, and second, the Court accepts the defendant's uncontroverted evidence, as submitted through the affidavit of Tom Reynolds, dated April 5, 2005, that the hotel has gone out of business and there is no longer any visible Best Western signage at the hotel. Therefore, IT IS FOUND that defendant Hosmer Hospitality, LLC was in civil contempt of the Court's Order of Preliminary Injunction (doc. #22) on October 18, 2004. IT IS ORDERED that plaintiff Best Western International, Inc.'s Application for Attorney's Fees (doc. #28) is granted and that the plaintiff is awarded the sum of $1,125.00 as and for its attorney's fees incurred in its prosecution of defendant Hosmer Hospitality, LLC's contempt of the Court's Order of Preliminary Injunction. IT IS FURTHER ORDERED that plaintiff Best Western International, Inc.'s Motion for Order Directing Defendant Hosmer Hospitality. LLC, and its Corporate -3Filed 09/29/2005

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Members and Officers to Show Cause Why They Should Not be Held in Contempt (doc. #36) is denied. DATED this 29th day of September, 2005.

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