Anhing v. Viet Phu - Order denying defendant's motion for attorney's fees

Case 2:13-cv-04348-BRO-JCG Document 180 Filed 11/26/14 Page 1 of 11 Page ID #:4031
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES – GENERAL
Case No. CV 13-04348 BRO (JCGx) Date November 26, 2015
Title ANHING CORPORATION V. VIET PHU, INC. ET AL.
Present: The Honorable BEVERLY REID O’CONNELL, United States District Judge
Renee A. Fisher Not Present N/A
Deputy Clerk Court Reporter Tape No.
Attorneys Present for Plaintiffs: Attorneys Present for Defendants:
Not Present Not Present
Proceedings: (IN CHAMBERS)
ORDER DENYING MOTION FOR ATTORNEY’S FEES [161]
I. INTRODUCTION
Pending before the Court is Defendant Viet Phu, Inc.’s motion for attorney’s fees
and costs pursuant to 15 U.S.C. § 1117(a). (Dkt. No. 161.) After consideration of the
papers filed in support of and in opposition to the instant motion, the Court deems this
matter appropriate for decision without oral argument of counsel. See Fed. R. Civ. P. 78;
C.D. Cal. L.R. 7-15. For the following reasons, the Court DENIES Defendant’s motion.
II. BACKGROUND
In this lawsuit, Plaintiff Anhing Corporation (“Plaintiff” or “Anhing”) accused
Defendants Viet Phu, Inc. (“Viet Phu”) and An N Cuong Co., Ltd. (“An N Cuong”) of
trademark infringement, unfair competition, false designation, and trademark dilution.
(Compl. ¶¶ 43–85.) Defendant An N Cuong produces fish sauce in Vietnam for
Defendant Viet Phu. The fish sauce is then sold to Viet Phu in Vietnam. Under the
direction of Viet Phu, An N Cuong affixes a label with an icon depicting two red ships
and the words “Red Boat.” Viet Phu then arranges for shipping of the fish sauce from
Vietnam to California, where it distributes the sauce in stores and over the internet.
Plaintiff Anhing, which produces and distributes its own fish sauce under a registered
trademark depicting an Asian-style sailboat with the letter “A” in the sail, sued
Defendants for trademark infringement of its mark.
CV-90 (06/04) CIVIL MINUTES – GENERAL Page 1 of 11

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Anhing’s Logo
(Compl. ¶ 15.)
Viet Phu’s Red Boat Design and Mark
(Compl. ¶ 17.)
Plaintiff initiated this action on June 17, 2013, alleging causes of action against
both Viet Phu and An N Cuong. (Dkt. No. 1.) On December 18, 2013, the Court granted
Defendant An N Cuong’s motion to dismiss for lack of personal jurisdiction. (Dkt. No.
36.) Plaintiff and Defendant Viet Phu then proceeded to trial. On September 11, 2014, a
jury rendered a verdict in favor of Viet Phu, finding no likelihood of confusion between
Plaintiff’s asserted marks and Viet Phu’s mark. (See Dkt. No. 151 at 2.) As a result, the
Court entered judgment in favor of Viet Phu. (Dkt. No. 151 at 2.)

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On October 2, 2014, Viet Phu filed the instant motion for attorney’s fees pursuant
to section 35(a) of the Lanham Act, 15 U.S.C. § 1117(a), alleging that the Court should
award Viet Phu attorney’s fees because Plaintiff’s pursuit of this lawsuit was groundless
and unreasonable. (Dkt. No. 161.) Plaintiff opposed this motion on October 27, 2014,
(Dkt. No. 171), and Viet Phu replied on November 24, 2014, (Dkt. No. 179).
III. LEGAL STANDARD
Section 35(a) of the Lanham Act states that “[t]he court in exceptional cases may
award reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a). Whether to
award attorney’s fees and the amount of such an award is within the Court’s discretion,
provided that the Court finds the case to be “exceptional.” See Stephen W. Boney, Inc. v.
Boney Servs., Inc., 127 F.3d 821, 825 (9th Cir. 1997). The Lanham Act, however,
“nowhere defines what makes a case ‘exceptional,’” id., and “[t]he line distinguishing
exceptional cases from non-exceptional cases is far from clear,” Secalt S.A. v. Wuxi
Shenxi Constr. Mach. Co., 668 F.3d 677, 687 (9th Cir. 2012). This line “is especially
fuzzy where the defendant prevails due to plaintiff’s failure of proof.” Secalt, 668 F.3d at
687. Nevertheless, the Ninth Circuit has “held that this requirement is met when the case
is either ‘groundless, unreasonable, vexatious, or pursued in bad faith.’” Cairns v.
Franklin Mint Co., 292 F.3d 1139, 1156 (9th Cir. 2002) (quoting Avery Dennison Corp.
v. Sumpton, 189 F.3d 868, 881 (9th Cir. 1999)); accord Lindy Pen Co. v. Bic Pen Corp.,
982 F.2d 1400, 1409 (9th Cir. 1993) (“[G]enerally a trademark case is exceptional for
purposes of an award of attorneys’ fees when the infringement is malicious, fraudulent,
deliberate or willful.”). In considering whether to award attorney’s fees, the Court is to
construe this requirement narrowly. See Classic Media, Inc. v. Mewborn, 532 F.3d 978,
990 (9th Cir. 2008); Am. Optometric Soc., Inc. v. Am. Bd. of Optometry, Inc., No. CV10-
03983 AHM FFMX, 2012 WL 6012861, at *1 (C.D. Cal. Dec. 3, 2012).
“A claim is considered factually groundless where there is ‘no reasonable basis to
believe’ in the factual allegations underlying the claim and is considered legally
groundless where there is ‘no legal basis’ for the claim itself, which instead rests on
‘absurd’ or ‘just short of frivolous’ contentions of law.” Brown v. Elec. Arts, Inc., 722 F.
Supp. 2d 1148, 1152 (C.D. Cal. 2010) (quoting Cairns v. Franklin Mint Co., 115 F. Supp.
2d 1185, 1188–89 (C.D. Cal. 2000)); accord Secalt, 668 F.3d at 687–88 (“exceptional
cases include instances where plaintiff’s case is frivolous or completely lacking in

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merit”). Thus, if the plaintiff’s claim raises “debatable issues of law and fact,” then the
case is not an “exceptional” one, and an award of attorney’s fees is not warranted.
Brown, 722 F. Supp. 2d at 1152 (quoting Stephen W. Boney, 127 F.3d at 827; Gibson
Guitar Corp. v. Viacom Int’l Inc., No. CV 12-10870 DDP AJWX, 2013 WL 3779593, at
*1 (C.D. Cal. July 18, 2013)).
IV. DISCUSSION
Viet Phu raises four primary arguments in support of its motion for attorney’s fees.
First, Viet Phu argues that Plaintiff’s trademark infringement claim was groundless.
Second, it contends that Plaintiff pursued this claim in bad faith to gain an improper
competitive advantage. Next, Viet Phu claims that Plaintiff’s trademark dilution claim
was frivolous. Finally, Viet Phu maintains that Plaintiff had no basis for including An N
Cuong in this lawsuit. As discussed below, the Court rejects each of these arguments.
A. Plaintiff’s Trademark Infringement Claim
First, Viet Phu attacks Plaintiff’s trademark infringement claim. Viet Phu contends
that Plaintiff’s infringement claim was groundless because Plaintiff had no evidence that
it had sustained any damages. Indeed, Plaintiff was unable to present any evidence of
damages at trial because Plaintiff failed to comply with Federal Rule of Civil Procedure
26’s disclosure requirements related to its theory of damages. Based on Plaintiff’s failure
to disclose its damages theory, Viet Phu contends that “it is entirely reasonable to assume
that Anhing has known since the outset of this case that it had not suffered any damage or
harm, yet Anhing pursued its claims all the way through trial.” (Dkt. No. 163 at 11.)
That the Court precluded Plaintiff from presenting any evidence on damages, however,
does not necessarily mean that it had no such evidence to present.
Rather, Plaintiff’s inability to present evidence of damages at trial was a result of
the Court imposing sanctions under Federal Rule of Civil Procedure 37 on Plaintiff for
Plaintiff’s failure to disclose its damages theory. True, Plaintiff’s failure to disclose any
damages theory may raise the inference that it had no such theory—and thus damages—
to present, but the Court cannot say as a matter of law that this inference is correct. In
fact, the Court has never had the opportunity to consider Plaintiff’s alleged lack of
damages evidence because Viet Phu never moved for summary judgment. And despite

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Viet Phu’s assertions to the contrary, a motion in limine does not provide the Court with
the same opportunity to evaluate the merits of Plaintiff’s claim.1 Had Viet Phu
successfully moved for summary judgment and established that Plaintiff had no
admissible evidence of damages, the Court could say as a matter of law that Plaintiff had
no basis to pursue its claim.2
Instead, the Court is left with a weak inference and Viet Phu’s argument.
Moreover, this “is not a situation where Plaintiff sued on an invalid trademark
registration for a generic term and without admissible evidence for a good faith belief that
infringement was occurring.” M2 Software, Inc. v. M2 Commc’ns, L.L.C., 281 F. Supp.
2d 1166, 1177 (C.D. Cal. 2003). Rather, Plaintiff holds a valid trademark that shares
several appearance characteristics with Viet Phu’s mark on a very similar product, and
Plaintiff presented evidence of actual confusion. For these reasons, the Court found
Plaintiff’s evidence at trial to be “sufficient for the jury to determine a likelihood of
confusion.” (Dkt. No. 156 at 149.) As stated above, Plaintiff presented no evidence of
damages because it was precluded from doing so as a discovery sanction. This case is
thus similar to M2 Software in that “Plaintiff’s discovery failures are partly the reason
Plaintiff was unable to” succeed at trial. 281 F. Sup. 2d at 1177. And as in M2 Software,
“[t]hat Plaintiff lost its case is a sufficient sanction for its sloppy discovery conduct.” Id.
Accordingly, the Court rejects Viet Phu’s argument that Plaintiff’s lack of damages
evidence renders this case “exceptional” and warrants an award of attorney’s fees under
the Lanham Act.
1 In ruling on Viet Phu’s Motion in Limine No. 1—which Viet Phu claims was a motion for summary
judgment “re-styled as a motion in limine,” (Dkt. No. 179-1 at 3)—the Court considered only whether
Plaintiff had complied with its disclosure obligations pursuant to Federal Rule of Civil Procedure 26; it
did not consider whether Plaintiff had in its possession any admissible evidence to support its claim for
damages.
2 Of course, even had Viet Phu successfully moved for summary judgment, that alone would not have
rendered this case “exceptional.” “A case is not exceptional simply because the court granted summary
judgment; otherwise, every Lanham Act case in which a summary judgment motion was granted would
be considered an ‘exceptional’ case.” Sand Hill Advisors, LLC v. Sand Hill Advisors, LLC, No. C 08-
5016 SBA, 2010 WL 8500520, at *3 (N.D. Cal. Sept. 20, 2010).

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B. Bad Faith
In addition to arguing that Plaintiff lacked a reasonable basis for pursuing this
claim, Viet Phu contends that Plaintiff only did so in order to prevent a potential
competitor from surviving in the marketplace. Cf. Nightingale Home Healthcare, Inc. v.
Anodyne Therapy, LLC, 626 F.3d 958, 962 (7th Cir. 2010) (“The owner of a trademark
might bring a Lanham Act suit against a new entrant into his market, alleging trademark
infringement but really just hoping to drive out the entrant by imposing heavy litigation
costs on him.”). While a finding of bad faith is not required for an award of attorney’s
fees, see Cairns, 292 F.3d at 1156, “whether a plaintiff ha[d] ‘an ulterior anti-competitive
motive’ could be a factor in the attorneys’ fees analysis,” Am. Optometric Soc., 2012 WL
6012861, at *2. Viet Phu supports its bad faith argument both by identifying Plaintiff’s
improper litigation tactics and by noting the size discrepancy between the parties as
evidence of an attempt to gain a competitive advantage.
With regard to Plaintiff’s litigation tactics, courts have typically held in this
context that “litigation conduct must rise to the level of oppressive in order to justify
declaring a case exceptional.” TE-TA-MA Truth Found.-Family of URI, Inc. v. World
Church of the Creator, 392 F.3d 248, 264 (7th Cir. 2004). “Playing hard—by the rules—
cannot suffice to make a case exceptional under § 1117(a).” Id. Viet Phu identifies an
improper comment that Plaintiff’s counsel made to Sam Luu, Viet Phu’s President,
during Mr. Luu’s deposition as evidence that Plaintiff was attempting to extract an
unreasonable settlement in order to gain a competitive advantage over Viet Phu.
Specifically, Plaintiff’s counsel told Mr. Luu that the litigation fees he had paid up until
that point were “just the tip of the iceberg,” and he questioned Mr. Luu as to whether he
thought it made “more business sense for Viet Phu to continue defending the litigation
than settling the case.” (Dkt. No. 163 at 125.) While the Court finds this behavior
troubling and agrees with Viet Phu that this constitutes an improper litigation tactic, the
Court does not find this conduct to rise to the level of “oppressive.” Cf. S Indus., Inc. v.
Centra 2000, Inc., 249 F.3d 625, 626 (7th Cir. 2001) (finding plaintiff’s litigation
conduct oppressive and fees appropriate where plaintiff engaged in such dilatory tactics
and antics as: not responding to discovery requests, repeatedly failing to serve properly or
sign motions, failing to satisfy local rules provisions, ignoring filing deadlines,
submitting motions late or not at all, missing scheduled hearings, and otherwise engaging
in tactics resulting in an extra nine months of delay and added costs to defendant).

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As for the size discrepancy between the parties, Viet Phu is correct to argue that
this factor can be considered as evidence of bad faith. See Nightingale Home Healthcare,
626 F.3d at 962. Yet while “[d]isparity in size will often be relevant in evaluating the
legitimacy of the suit or defense, . . . it is as likely to favor the defendant as the plaintiff.”
Id. at 964; accord id. (“Big businesses sue big and small businesses for trademark
infringement and false advertising, and small businesses sue big and small businesses for
the same torts.”). That Anhing is a larger company than Viet Phu is thus insufficient to
establish a finding of bad faith. Accordingly, Viet Phu has failed to demonstrate
sufficient evidence of bad faith to render this suit “exceptional.”
C. Plaintiff’s Trademark Dilution Claim
Next, Viet Phu argues that Plaintiff’s trademark dilution claim was groundless
because Plaintiff “had no viable chance at proving that its marks are famous.” (Dkt. No.
163 at 24.) Indeed, establishing that a mark is famous is a necessary element of any
claim for trademark dilution. See Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1324
(9th Cir. 1998). And the standard for demonstrating a mark’s fame is quite high. Many
courts have found that, “[u]nless a mark rises to the level of ‘KODAK’ or ‘COKE,’ it is
not considered famous and thus not afforded protection from dilution.” Self–Ins. Inst. of
Am., Inc. v. Software & Info. Indus. Ass’n, 208 F. Supp. 2d 1058, 1077 (C.D. Cal. 2000).
As a result, “[n]iche market fame is insufficient.” Xen, Inc. v. Citrix Sys., Inc., No. CV
11-09568 DDP MRWX, 2012 WL 5289609, at *6 (C.D. Cal. Oct. 25, 2012). Rather, a
mark can only be considered famous if it is “widely recognized by the general consuming
public of the United States as a designation of source of the goods or services of the
mark’s owner.” 15 U.S.C. § 1125(c)(2)(A) (emphasis added).
At first blush, it seems highly unlikely that Plaintiff’s marks could rise to the level
of recognition that marks such as “KODAK” and “COKE” enjoy. Nevertheless, despite
courts’ frequent allusions to such famous marks, the test for fame is not limited to
comparing a plaintiff’s mark to such household names. Rather, the Lanham Act dictates
that courts are to consider “all relevant factors,” including: (1) the “duration, extent, and
geographic reach of advertising and publicity of the mark”; (2) the “amount, volume, and
geographic extent of sales of goods or services offered under the mark”; (3) the “extent of
actual recognition of the mark”; and (4) “[w]hether the mark was registered under the Act
of March 3, 1881, or the Act of February 20, 1905, or on the principal register.” Id.

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While the Court doubts that Plaintiff would be able to establish its marks’ fame by a
preponderance of the evidence, Plaintiff did present evidence regarding the significant
market share that its products have occupied for several decades.
Moreover, the Court has never had the occasion to consider “all relevant factors”
in this analysis for two reasons. First and most importantly, Viet Phu never moved either
to dismiss Plaintiff’s dilution claim or for summary judgment on this claim.3 Second,
Plaintiff withdrew its dilution claim before Viet Phu ever challenged it to this Court.
While this is not dispositive on Viet Phu’s motion for attorney’s fees, the Court is not
inclined to grant Viet Phu attorney’s fees on a claim that Viet Phu never even challenged
before it was withdrawn by Plaintiff. And Plaintiff was certainly within its rights to
dismiss a claim voluntarily that, after conducting discovery, it determined to be too weak
to pursue at trial. See N.Y. Stock Exch., Inc. v. Gahary, No. 00 Civ. 5764, 2003 U.S. Dist.
LEXIS 165, at *6–7 (S.D.N.Y. Jan. 7, 2003). Accordingly, as the Court never had the
opportunity to evaluate this claim due to Viet Phu’s own decision not to challenge it until
it was withdrawn, the Court declines to grant attorney’s fees for Plaintiff’s dilution claim.
D. Plaintiff’s Claims Against An N Cuong
Finally, Viet Phu requests attorney’s fees on the ground that Plaintiff had no basis
for naming An N Cuong as a defendant. In support of this argument, Viet Phu notes that
the Court granted An N Cuong’s motion to dismiss for lack of personal jurisdiction. (See
Dkt. No. 36.) Although the Court has already found that An N Cuong could not be
subject to this lawsuit, as discussed below, the Court finds that neither Viet Phu nor An N
3 Viet Phu asserts that its motion for summary judgment “re-styled as a motion in limine” was “nearly
completed when three (3) days before the deadline for the filing of motions in limine, Anhing dismissed
its dilution claim, thereby mooting the motion.” (Dkt. No. 179 at 14 n.9.) Indeed, the deadline for filing
motions in limine was July 28, 2014, three days after Plaintiff’s counsel indicated that Plaintiff would be
withdrawing its dilution claim. (Dkt. Nos. 21 at 14; 161-3.) The last day for hearing motions, however,
was July 7, 2014. (Dkt. No. 21 at 14.) Thus, in order to comply with the Court’s scheduling order and
its Standing Order (which requires a party to file a motion for summary judgment forty-nine days prior
to the last day for hearing motions), Viet Phu would have had to file its motion for summary judgment
by May 19, 2014—over two months before Plaintiff withdrew its dilution claim. And although Viet Phu
states that its summary judgment was “re-styled” as a motion in limine for “strategic reasons,” failing to
meet this Court’s deadlines is not an acceptable strategy, nor is attempting to couch a motion for
summary judgment in a motion in limine.

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Cuong has standing to seek attorney’s fees on this basis because An N Cuong is not a
“prevailing party” as required by 15 U.S.C. § 1117(a).4
Section 1117(a) provides that the Court “in exceptional cases may award
reasonable attorney fees to the prevailing party.” 15 U.S.C. § 1117(a) (emphasis added).
Thus, only “prevailing parties” in a suit brought under the Lanham Act can be awarded
attorney’s fees on this basis. Although the Lanham Act does not define what constitutes
a “prevailing party,” a few courts have considered whether this definition includes
defendants who have been dismissed from an action for lack of personal jurisdiction.
In Buccellati Holding Italia Spa v. Laura Buccellati, LLC, No. 11 CIV. 7268 PGG,
2014 WL 1325748, at *2 (S.D.N.Y. Mar. 17, 2014), for example, the court denied a
request for attorney’s fees under the Lanham Act because the defendants seeking
attorney’s fees were dismissed for lack of personal jurisdiction and thus did not qualify as
“prevailing parties.” In doing so, the court relied on the Supreme Court’s decision in
Buckhannon Board & Home Care v. West Virginia Department of Health & Human
Services, 532 U.S. 598 (2001). As the court explained in Buccellati, “[i]n Buckhannon,
the Supreme Court held that for a party to be ‘prevailing,’ there must be a ‘judicially
sanctioned change in the legal relationship of the parties,’” such as “a judgment on the
merits and a consent decree.” 2014 WL 1325748, at *2 (quoting Buckhannon, 532 U.S.
at 605). Because a dismissal for lack of personal jurisdiction does not involve such a
change in the legal relationship of the parties, the defendants could not be considered
“prevailing parties.” Id.
Similarly, in Hayes v. FM Broadcasting Station WETT, the court noted that,
“[a]lthough the D.C. Circuit has held that a court may award fees under 15 U.S.C.
§ 1117(a) to a litigant who has won a dismissal for improper venue—a holding that
would presumably also apply to dismissals for lack of personal jurisdiction—that case
may no longer be good law” because of the Supreme Court’s holding in Buckhannon.
930 F. Supp. 2d 145, 153 (D.D.C. 2013) (citations omitted). The court nevertheless
4 Moreover, “the sheer fact that a motion to dismiss is granted does not suffice to show that the claim
was groundless or was not a colorable claim. Otherwise, every case in which a motion to dismiss a
Lanham Act claim was granted would be considered an ‘exceptional’ case and soon the exceptional
would become the ordinary.” Brown, 722 F. Supp. 2d at 1152.

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declined to decide the issue because it concluded that the case at bar was not an
“exceptional case” within the meaning of the Lanham Act. Id.; accord Pebble Beach Co.
v. N. Bay LLC, 405 F. Supp. 2d 1019, 1025–26 (W.D. Wis. 2005) (“The Court has not
reached the merits of plaintiffs’ Lanham Act allegations concerning defendant Wilkerson
and because the Court granted his motion to dismiss for lack of personal jurisdiction he
will not sustain increased costs for having to defend against the merits of the action.
Accordingly, the Court does not find this is an exceptional case under the Lanham Act
and attorney’s fees will not be awarded.”).
Although this issue remains somewhat unsettled in the context of the Lanham Act,
see Hayes, 930 F. Supp. 2d at 153, courts considering this issue in the context of similar
statutes have held that a party dismissed for lack of personal jurisdiction cannot be
considered a “prevailing party.” “Those courts which have directly addressed the issue
have held that a party successful on a motion to dismiss for lack of personal jurisdiction
is not a prevailing party for purposes of any statute making attorney fees available to
prevailing parties.” ITI Holdings, Inc. v. Prof’l Scuba Ass’n, Inc., No. 05-184-P-S, 2007
WL 1002245, at *2 (D. Me. Mar. 30, 2007) (citing Caraustar Custom Packaging Group
(Md.), Inc. v. Stockart.com, LLC, No. 3:05CV377-MU, 2006 WL 3371679, at *1
(W.D.N.C. Nov. 20, 2006) (federal copyright claim); Dahn World Co. v. Chung, No. CV
05–3477–PCT–JAT, 2006 WL 3313951, at *2–3 (D. Ariz. Nov. 13, 2006) (same);
Lichtenheld v. Juniper Features, Ltd., No. 94 C 4385, 1996 WL 685443, at *2 (N.D. Ill.
Nov. 21, 1996) (same)). “These courts reason that a court which lacks personal
jurisdiction over a defendant lacks the power to decide any issue in favor of that
defendant or to act in any way that benefits that defendant and that the defendant
accordingly cannot be a prevailing party with respect to that litigation.” Id.
The Court finds the reasoning of these cases persuasive. As the court explained in
Buccellati, the Supreme Court in Buckhannon explicitly rejected the argument that “the
term ‘prevailing party’ authorizes an award of attorney’s fees without a corresponding
alteration in the legal relationship of the parties.” 532 U.S. at 605. Although the Court in
Buckhannon addressed the term in the context of the Fair Housing Amendments Act of
1988, there is no indication that the term should be interpreted differently in the context
of the Lanham Act. And as in Buccellati, this Court determines that a dismissal for lack
of personal jurisdiction does not effect a “judicially sanctioned change in the legal
relationship of the parties.” 2014 WL 1325748, at *2 (quoting Buckhannon, 532 U.S. at

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605). Accordingly, the Court finds that An N Cuong is not a “prevailing party” and thus
cannot recover attorney’s fees pursuant to the Lanham Act.5
V. CONCLUSION
For the foregoing reasons, Defendant’s motion for attorney’s fees is DENIED.
The hearing set for Monday, December 1,2 014 is VACATED.
IT IS SO ORDERED. :
Initials of Preparer rf
5 Viet Phu provides no reason why it should somehow receive attorney’s fees on An N Cuong’s behalf,
and the Court declines any invitation to grant Viet Phu attorney’s fees on this basis.

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Anhing v. Viet Phu - Order denying defendant's motion for attorney's fees