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Burger v. Rock and Roll Chili Pit, Inc.

United States District Court, D. Oregon, Portland Division

March 5, 2018

KILLER BURGER, Plaintiff,
v.
ROCK AND ROLL CHILI PIT, INC., et al., Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN Chief United States District Judge

         This matter comes before me on Defendants' Motion for Attorney Fees [39]. For the reasons below, I DENY the Motion, with leave to refile for fees associated with Killer Burger's contract claim.

         BACKGROUND

         This case involves two former business partners' competing burger joints. Killer Burger, founded by TJ Southard and Defendant Mark McCrary, opened in 2010. In 2016, McCrary and his wife, Defendant Robin McCrary, left Killer Burger to open their own restaurant, Rock and Roll Chili Pit (RRCP). RRCP opened in March 2017 in downtown Portland, several blocks from Killer Burger's downtown location. In connection with its opening, RRCP posted announcements in its Facebook group about its “Epic” and “Black Molly” burger, both of which were burgers that had previously been available at Killer Burger.

         Killer Burger brought suit against RRCP in August 2017, claiming: (1) violations of the Lanham Act, 15 U.S.C. § 1125(a), specifically for RRCP's use of the Epic and Black Molly hamburgers; (2) violations of state trademark law, O.R.S. § 647.107; (3) violations of common law rights; and (4) breach of contract against Mark McCrary for his disclosure of the Epic, Black Molly, and peanut sauce recipes. Compl. [1] ¶¶ 16-26. Killer Burger also sought a TRO and a Preliminary Injunction, requesting injunctive relief prohibiting RRCP from producing and advertising the Epic or Black Molly burgers. Mot. for TRO [2].

         After I denied Killer Burger's request for a TRO, Tr. [28] at 29-30, Killer Burger filed an Amended Motion for Preliminary Injunction [19] and sought broader relief than in the Motion for TRO or the first Motion for Preliminary Injunction. In the Amended Motion, Killer Burger sought injunctive relief prohibiting RRCP from: (1) advertising or selling the Epic or Black Molly burgers; (2) using Killer Burger's peanut butter sauce recipe; (3) selling any menu items, including tater tots, with the term “Peanut Butter Pickle Bacon” in the title; (4) advertising or selling any Killer Burger hamburgers, including those not yet created; and (5) referring to any Killer Burger trademarks in advertising, social media, or otherwise. Am. Mot. [19]. Killer Burger never filed an amended complaint detailing these allegations, although Killer Burger asserts it circulated an amended version to RRCP and never received a response. Immediately before the hearing on the preliminary injunction, the parties filed a stipulation for dismissal pursuant to Fed.R.Civ.P. 41(a)(1), although Defendants argue that Killer Burger decided to voluntarily dismiss the case essentially on its own.

         The parties stipulated to dismissal with prejudice [36] pursuant to Fed.R.Civ.P. 41(a)(1)(A)(ii), which allows a plaintiff to “dismiss an action without a court order by filing a stipulation of dismissal signed by all parties who have appeared.” Fed.R.Civ.P. 41(a)(1)(A)(ii).

         Unlike most Rule 41(a)(1) stipulations, the parties requested the Court sign off on the stipulation, which I did [38]. The stipulation included the following provision: “The parties reserve the right to submit petitions for attorney fees, costs and disbursements.” [36].

         Defendants now seek attorney fees pursuant to Fed.R.Civ.P. 54(d) under (1) the Lanham Act, 15 U.S.C. § 1117(a); (2) O.R.S. § 647.105(2); and (3) the confidential Stock Redemption Agreement, which contains an attorney fees clause.

         DISCUSSION

         Defendants ask for $27, 245.00 in attorney fees and $188.03 in costs. Killer Burger argues Defendants are not entitled to fees or costs in this case, because: (1) a voluntary dismissal does not constitute a “judgment” after which fees may be sought; and (2) Defendants are not the prevailing party and do not meet other standards for fees under federal or state law. I address each of these arguments in turn.

         I. Whether a voluntary dismissal constitutes a “judgment” under Fed.R.Civ.P. 54(d)

         Fed. R. Civ. P. 54(d)(2)(B) addresses claims for attorney fees and reads:

Timing and Contents of the Motion. Unless a statute or a court order provides otherwise, the motion must: (i) be filed no later than 14 days after the entry of judgment; (ii) specify the judgment and the statute, rule, or other grounds entitling the movant to the award; (iii) state the amount sought or provide a fair estimate of it; and (iv) disclose, if the court ...

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