United States District Court, D. Oregon, Portland Division
OPINION AND ORDER
MICHAEL W. MOSMAN Chief United States District Judge
matter comes before me on Defendants' Motion for Attorney
Fees . For the reasons below, I DENY the Motion, with
leave to refile for fees associated with Killer Burger's
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.
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. 
¶¶ 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 .
denied Killer Burger's request for a TRO, Tr.  at
29-30, Killer Burger filed an Amended Motion for Preliminary
Injunction  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. .
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.
parties stipulated to dismissal with prejudice  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).
most Rule 41(a)(1) stipulations, the parties requested the
Court sign off on the stipulation, which I did . The
stipulation included the following provision: “The
parties reserve the right to submit petitions for attorney
fees, costs and disbursements.” .
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.
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.
Whether a voluntary dismissal constitutes a
“judgment” under Fed.R.Civ.P. 54(d)
Civ. P. 54(d)(2)(B) addresses claims for attorney fees and
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 ...