Houweling Intellectual Properties Incorporated v. Copperstate Farms LLC

• Court: District Court, D. Arizona
• Decided: February 18, 2025
• Docket: 3:22-cv-08122
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Houweling Intellectual Properties No. CV-22-08122-PCT-DWL Incorporated, 10 ORDER Plaintiff, 11 v. 12 Copperstate Farms LLC, et al., 13 Defendants. 14

15 Pending before the Court is Plaintiff’s motion for attorneys’ fees and interest. (Doc. 16 76.) For the reasons that follow, Plaintiff’s motion is granted in part and denied in part. 17 BACKGROUND 18 On July 11, 2022, Plaintiff initiated this patent infringement action, naming a single 19 Defendant, Copperstate Farms, LLC (“Copperstate”). (Doc. 1.) 20 On October 7, 2022, Plaintiff served Copperstate. (Doc. 9.) 21 On October 17, 2022, Plaintiff filed a First Amended Complaint (“FAC”) as a matter 22 of course, adding Defendants Mountain High Greenhouse Construction, LLC (“Mountain 23 High”), APLS, Inc. (“APLS”), and T.C. v.d. Dool B.V. (“T.C. v.d. Dool”). (Doc. 12.) 24 On November 10, 2022, Plaintiff filed a Second Amended Complaint (“SAC”) 25 (Doc. 21) pursuant to LRCiv 15.1(b). (Doc. 22.) 26 On November 11, 2022, Plaintiff’s previous counsel, Ferguson Case Orr Paterson 27 LLP and its attorneys, Corey A. Donaldson and Jessica M. Wan, filed an application to 28 withdraw and substitute new counsel, Jaye G. Heybl of Stradling Yocca Carlson & Rauth 1 (“Counsel”). (Doc. 24.) 2 On November 14, 2022, the substitution of counsel was granted. (Doc. 26.)1 3 On December 20, 2022, Plaintiff applied for entry of default against Mountain High. 4 (Doc. 30.) 5 On December 27, 2022, the Clerk issued a minute order: “There being no proof of 6 service filed on the Court’s docket as to [Mountain High], the Clerk’s Office will take no 7 action on the Plaintiff’s application for entry of default.” (Doc. 31.) 8 Later that day, Plaintiff filed proof of service on Mountain High on November 14, 9 2022 (Doc. 32) and on ALPS on December 12, 2022 (Doc. 33). 10 On January 9, 2023, Plaintiff filed a renewed application for entry of default against 11 Mountain High. (Doc. 34.) 12 On January 10, 2023, the Clerk entered default against Mountain High. (Doc. 35.) 13 On February 27, 2023, Plaintiff filed a stipulation indicating that the parties were 14 negotiating a global resolution of the matter and requesting an extension of the deadline 15 for Copperstate to respond to the SAC. (Doc. 37.) The extension request was granted. 16 (Doc. 38.) 17 On April 4, 2023, Plaintiff filed a “request for hearing to enter final judgement” 18 against Mountain High. (Doc. 39.) 19 On April 14, 2023, the Court denied the “request for hearing” as procedurally 20 improper and substantively inadequate and ordered Plaintiff to file a motion for default 21 judgment against Mountain High. (Doc. 42.) 22 On May 5, 2023, Plaintiff filed a motion for relief from the Court’s April 14, 2023 23 order. (Doc. 43.) Plaintiff had filed the SAC on November 10, 2022, but four days later, 24 Plaintiff inadvertently served Mountain High with the FAC, not the then-operative SAC. 25 (Id.) Plaintiff requested that the entry of default be set aside. (Id.) 26 27 1 It appears that Counsel began working on this case on October 3, 2022 (Doc. 77-1 28 at 2), over a month before the substitution of counsel was requested and granted, such that Counsel worked on the FAC and the SAC. 1 On May 8, 2023,2 the Court granted Plaintiff’s motion and vacated the January 10, 2 2023 entry of default as to Mountain High. (Doc. 44.) 3 On June 1, 2023, Plaintiff applied for entry of default against Mountain High for the 4 third time. (Doc. 47.) The Clerk re-entered default. (Doc. 48.) 5 On June 30, 2023, the Court dismissed Copperstate pursuant to the parties’ 6 stipulation. (Doc. 51.) 7 On December 22, 2023, Plaintiff filed a motion for default judgment against 8 Mountain High. (Doc. 52.) 9 On April 5, 2024, the Court set oral argument on Plaintiff’s motion for default 10 judgment and issued a tentative order denying the motion. (Docs. 54, 55.) 11 On April 17, 2024, Counsel attended oral argument via video conferencing and 12 advised the Court that Plaintiff agreed with the Court’s tentative order. (Doc. 56.) 13 On April 18, 2024, the Court issued a final version of the order (substantively 14 identical to the tentative order) denying the default judgment motion. (Doc. 57.) That 15 order also dismissed T.C. v.d. Dool for failure to serve. (Id. at 13.) 16 On May 9, 2024, Plaintiff filed its now-operative pleading, the Third Amended 17 Complaint (“TAC”). (Doc. 58.) 18 On May 16, 2024, Plaintiff served the TAC on Mountain High. (Doc. 62.) 19 On July 12, 2024, Plaintiff filed its fourth application for entry of default as to 20 Mountain High (Doc. 63), which the Clerk entered (Doc. 64). 21 On November 27, 2024, Plaintiff filed a renewed motion for default judgment as to 22 Mountain High. (Doc. 68.) 23 On December 16, 2024, the Court granted in significant part the renewed motion 24 for default judgment. (Doc. 70.) Judgment was entered in favor of Plaintiff and against 25 Mountain High in the amount of $383,601 and Mountain High was permanently enjoined 26 from any future making, using, offering for sale, or selling greenhouses covered by U.S. 27 Pat. Nos. 8,707,617 and 11,412,668 in the territories of the United States of America until 28 2 The order was docketed the following day. 1 the expiration of those patents. (Id.) 2 On January 13, 2025, Plaintiff filed the pending motion for attorneys’ fees and pre- 3 and post-judgment interest (Doc. 76) and supporting materials (Docs. 77, 77-1).3 4 On January 15, 2025, Plaintiff filed a notice of voluntary dismissal of ALPS. (Doc. 5 78.) 6 DISCUSSION 7 I. Attorneys’ Fees 8 A. Legal Standard 9 In patent cases,4 “[t]he court in exceptional cases may award reasonable attorney 10 fees to the prevailing party.” 35 U.S.C. § 285. This provision enables courts “to address 11 unfairness or bad faith in the conduct of the losing party, or some other equitable 12 consideration of similar force, which made a case so unusual as to warrant fee-shifting.” 13 Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 549 (2014) (cleaned 14 up). The text of the statute “is patently clear. It imposes one and only one constraint on 15 district courts’ discretion to award attorney’s fees in patent litigation: The power is reserved 16 for ‘exceptional’ cases.” Id. at 553. “Exceptional” means “uncommon,” “rare,” or “not 17 ordinary.” Id. “[A]n ‘exceptional’ case is simply one that stands out from others with 18 respect to the substantive strength of a party’s litigating position (considering both the 19 governing law and the facts of the case) or the unreasonable manner in which the case was 20 litigated.” Id. at 554. The statutory text is “inherently flexible” and should not be forced 21 into “an inflexible framework.” Id. at 555. 22 “[A] district court analyzing a request for fees under the Patent Act should look to 23 the ‘totality of the circumstances’ to determine if the infringement was exceptional.” 24 SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1180 (9th Cir. 2016). Courts 25 should eschew any “precise rule or formula for making these determinations” and should

26 3 On January 29, 2025, Plaintiff filed a notice of errata amending one paragraph of its motion for attorneys’ fees. (Doc. 79.) 27 4 The same standard applies in trademark cases. The fee-shifting provisions in the 28 Patent Act and the Lanham Act are “parallel and identical” and are interpreted “in tandem.” SunEarth, Inc. v. Sun Earth Solar Power Co., 839 F.3d 1179, 1180 (9th Cir. 2016). 1 instead “examine the totality of the circumstances to determine if the case was exceptional, 2 exercising equitable discretion” by considering a nonexclusive list of factors, including 3 “frivolousness, motivation, objective unreasonableness (both in the factual and legal 4 components of the case) and the need in particular circumstances to advance considerations 5 of compensation and deterrence,” using “a preponderance of the evidence standard.” Id. 6 at 1180-81.5 7 B. Analysis 8 Plaintiff contends that because the Court previously found Mountain High’s 9 infringement to be willful, and Mountain High has failed to participate in this action, those 10 two considerations compel a determination that this is an “exceptional” case and an 11 exercise of discretion in favor of awarding attorneys’ fees. (Doc. 76 at 3.) Plaintiff cites 12 Facebook, Inc. v. 9 Xiu Network (Shenzhen) Tech. Co., 2021 WL 5707741, *8 (N.D. Cal. 13 2021), for the proposition that courts “commonly find that willful infringement, in 14 conjunction with nonparticipation in litigation, makes a case ‘exceptional.’” So they do. 15 But courts do not always find that the combination of alleged willfulness and default 16 judgment makes a case exceptional. Deckers Outdoor Corp. v. Pinkcoboutique LLC, 2024 17 WL 4557308, *4 (C.D. Cal. 2024) (“[T]he Court struggles to conclude the case is 18 exceptional. Merely alleging willfulness is not sufficient to demonstrate an exceptional 19 case.”); Tempur Sealy Int’l, Inc. v. Seltyk Mattress Inc., 2023 WL 3075881, *6 (C.D. Cal. 20 2023) (“[O]ther than Seltyk’s failure to appear and defend, litigation in this case has been 21 straightforward and run-of-the-mill, with substantive filings limited to the initial Complaint 22 and the instant Motion. Accordingly, Tempur Sealy fails to establish that this case is 23 exceptional and an award of attorneys’ fees is therefore not appropriate.”) (cleaned up). 24 Rather than accepting what is “commonly” done, courts are expected to consider “the 25 totality of the circumstances” on a “case-by-case” basis and exercise their discretion 26 accordingly. Octane Fitness, 572 U.S. at 554. 27

28 5 Following Octane Fitness, the Ninth Circuit expressly “overrule[d] [its] precedent to the contrary.” SunEarth, 839 F.3d at 1181. 1 Although the Court previously determined that the allegations in the TAC, taken as 2 true, just barely established that it was plausible that Mountain High willfully infringed the 3 patents at issue, it doesn’t follow that the Court must deem this an exceptional case 4 warranting attorneys’ fees. The allegations supporting the Court’s plausibility finding were 5 thin (even though the Court’s order denying default judgment based on the SAC 6 emphasized that more factual detail was needed to establish both liability and willfulness), 7 such that the Court considered the willfulness determination to be a close question. 8 The order denying the original default judgment motion outlined the deficiencies 9 related to establishing liability, further noted that “there are no non-conclusory factual 10 allegations in the SAC concerning Mountain High’s and ALPS’s knowledge that the design 11 of the Snowflake Greenhouse infringed Plaintiff’s patents,” and explained that “[t]he 12 SAC’s references to ‘knowledge’ are conclusory and do not plausibly allege any such 13 knowledge.” (Doc. 57 at 9.) “Although the SAC contains conclusory, boilerplate 14 allegations on the topic of willfulness, the problem once again is that there are no well- 15 pleaded facts to support those assertions, at least as they apply to Mountain Home and 16 ALPS.” (Id. at 10 n.7, cleaned up.) 17 The TAC added only one factual allegation pertaining to willfulness: “Defendants 18 Mountain High and ALPS also had knowledge of the ’617 Patent through its [sic] previous 19 involvement in construction of greenhouses covered by the ’617 Patent, and Defendants 20 Mountain High and ALPS would were [sic] made aware of the existence and coverage of 21 the ’617 Patent through these construction activities.” (Docs. 58 & 59 ¶ 32.) The “had 22 knowledge” and “made aware” portions of this allegation are conclusory, such that the only 23 alleged fact to support the contention that Mountain High had knowledge of the ’617 Patent 24 (and therefore infringed it willfully) is that Mountain High had “previous involvement in 25 construction of greenhouses covered by the ’617 Patent.” 26 The order granting the renewed default judgment motion stated that “it is not 27 obvious why such involvement necessarily equates to awareness that the conduct at issue 28 in this case constituted infringement of the ’617 Patent.” (Doc. 70 at 3.) Indeed, if Plaintiff 1 filed other suits or sent cease-and-desist letters during the construction of these other 2 greenhouses—the most obvious way Mountain High would have been made aware of any 3 infringement of the ’617 Patent—presumably Plaintiff would have alleged such facts in the 4 TAC. Nevertheless, the Court concluded that because “plausibility is all that is required 5 here,” it was at least plausible, albeit “not inevitable,” that Mountain High derived 6 awareness that the previous greenhouses it constructed infringed the ’617 Patent. (Id.)6 7 Under § 284 of the Patent Act, enhanced damages do not have to “follow a finding 8 of egregious misconduct”—rather, courts are vested with “discretion” to “take into account 9 the particular circumstances” of the case. Halo Elecs., Inc. v. Pulse Elecs., Inc., 579 U.S. 10 93, 106 (2016). When doing so here, the Court determined that treble damages were 11 appropriate. (Doc. 70 at 3.) 12 The decision whether to award attorneys’ fees under § 285 likewise involves an 13 exercise of discretion, again taking the circumstances of the case into account, but it doesn’t 14 follow that these two determinations must always point in the same direction. No doubt, 15 they often will. But under the circumstances of this case, where the willfulness finding 16 was a close call and the need to advance considerations of compensation and deterrence 17 has been fully satisfied by the treble damages already awarded, the Court concludes that 18 this is not an exceptional case warranting an award of attorneys’ fees. Rather, this is a run- 19 of-the-mill, straightforward case. Like many other cases that result in default judgment, 20 the substantive filings were limited to complaints and default judgment motions. 21 Furthermore, even if the Court were to conclude that this was an exceptional case 22 and attorneys’ fees were merited, the fees requested here are not reasonable. As noted 23 above, in a case like this one, where no Defendants participated at all, all Plaintiff needed 24 to do was file a sufficient complaint, serve it, apply for default, and file a motion for default 25

26 6 See, e.g., Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978) (“sufficiency of the complaint” in the context of default judgments means “sufficient to state a claim”); 27 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to state a claim, a complaint must contain sufficient factual matter, accepted as true, to meet a “plausibility standard” that requires 28 “more than a sheer possibility that a defendant has acted unlawfully” but does not rise to the level of a “probability requirement”). 1 judgment. These steps should not consume great quantities of time, particularly in a case 2 like this one, where the issues were not complicated and essentially only one cause of action 3 was asserted—the two claims in the TAC were both the same cause of action, as applied to 4 the two patents at issue. Nevertheless, Plaintiff requests $127,335.00 in attorneys’ fees. 5 (Doc. 76 at 2.) Fee awards in cases like this one are typically far more modest. See, e.g., 6 Westgate MFG, Inc. v. Norco Wholesale Elec. Supply Inc., 2022 WL 3101766, *7 (C.D. 7 Cal. 2022) (awarding $22,057 in attorneys’ fees in Patent Act/Lanham Act case with seven 8 claims for relief); Hinton v. Completely Innocent LLC, 2022 WL 1265924, *5 (D. Ariz. 9 2022) (awarding $11,896.50 in fees in Lanham Act case resolved on default judgment). 10 Here, the time recorded is excessive for the quantity and quality of the work 11 performed. For example, on December 19, 2022, Counsel block-billed 1.2 hours (72 12 minutes) for working on the application for entry of default as to Mountain High and 13 “prepar[ing] instructions to local counsel re same.” (Doc. 77-1 at 3.) This entry followed 14 two other entries (1.10 and 0.40, for a total of 90 minutes) spent doing “analysis” in 15 preparation for preparing the application for entry of default. (Id.) The application for 16 entry of default consisted of two pages of boilerplate. (Doc. 30.) The most important part 17 of the application was the assertion that the FAC had been served, yet Counsel failed to 18 notice that the FAC was no longer the operative complaint, an oversight suggesting haste, 19 not meticulous care. It is difficult to comprehend how 2.7 hours of attorney time could 20 have been spent on this extremely short, boilerplate, faulty application for default. 21 Between April 24, 2024 and May 9, 2024, Counsel recorded 10.4 hours of time 22 spent on working on the TAC. (Doc. 77-1 at 5.) The redlined version demonstrating the 23 alterations from the SAC to the TAC (Doc. 59) shows how limited the changes were—just 24 a few added allegations, the removal of T.C. v.d. Dool, and a few other small edits. Even 25 recognizing that some thought and discussion preceded the actual revisions, the amount of 26 time spent is excessive in relation to the work produced. 27 Finally, between April 27, 2023 and December 22, 2023, Counsel recorded over 70 28 hours researching and drafting the original (denied) motion for default judgment. (Doc. 1 77-1 at 4-5.)7 That is excessive, particularly given the outcome.8 2 II. Pre- And Post-Judgment Interest 3 Plaintiff also seeks pre- and post-judgment interest. Each request is addressed 4 below. 5 A. Prejudgment Interest 6 “[A] postjudgment motion for discretionary prejudgment interest constitutes a 7 motion to alter or amend the judgment under Rule 59(e).” Osterneck v. Ernst & Whinney, 8 489 U.S. 169, 175 (1989). “Under Rule 59(e), a motion for reconsideration should not be 9 granted, absent highly unusual circumstances, unless the district court is presented with 10 newly discovered evidence, committed clear error, or if there is an intervening change in 11 the controlling law.” 389 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). 12 Here, Plaintiff made a cursory request for prejudgment interest in its renewed motion for 13 default judgment (Doc. 68 at 20-21), which the Court overlooked in the order granting the 14 motion. The Court apologizes for that oversight and will thus consider the request on the 15 merits. 16 Under 35 U.S.C. § 284, a prevailing patent claimant is entitled to “damages adequate 17 to compensate for the infringement . . . together with interest and costs as fixed by the 18 court.” This provision vests district courts with discretion to award prejudgment interest, 19 which is not reserved for “exceptional” cases and “should ordinarily be awarded absent 20 some justification for withholding such an award” because it is “necessary to ensure that 21 the patent owner is placed in as good a position as he would have been in had the infringer 22 entered into a reasonable royalty agreement.” Gen. Motors Corp. v. Devex Corp., 461 U.S. 23 648, 654-55 (1983). “[I]t may be appropriate to limit prejudgment interest, or perhaps even

24 7 Again, block-billing made this figure somewhat difficult to compute, but it seems clear that the bulk of this work was devoted to the default judgment motion. 25 8 Although the Court finds that the fee request is unreasonably large, this 26 determination did not factor into the separate analysis of whether fees should be awarded in the first place. If the Court had determined a fee was warranted, the amount awarded 27 could have been reduced from the amount requested. The Court includes these observations only to note that although its exercise of discretion not to award attorneys’ 28 fees may be disappointing to Plaintiff, nothing close to the amount of fees requested was ever on the table. 1 deny it altogether, where the patent owner has been responsible for undue delay in 2 prosecuting the lawsuit” or where other circumstances favor limiting or denying 3 prejudgment interest. Id. at 657. “But prejudgment interest is not awarded as a penalty; it 4 is merely an element of just compensation.” City of Milwaukee v. Cement Div., Nat. 5 Gypsum Co., 515 U.S. 189, 197 (1995). 6 Unfortunately, neither the allegations in the TAC nor the supplementary materials 7 submitted by Plaintiff adequately establish the point at which prejudgment interest should 8 be deemed to begin accruing. Plaintiff’s argument on that issue is as follows: “The 9 infringing greenhouse was first offered for sale by Mountain High on November 22, 2019, 10 and the court entered judgment against Mountain High on December 16, 20[2]4, which 11 results in just over 5 years for interest to accrue.” (Doc. 76 at 11, citations omitted.) In an 12 effort to substantiate a “first offered for sale” date in November 2019, Plaintiff cross- 13 references Counsel’s declaration, which contains the following avowal: “Attached hereto 14 as Exhibit C is a true and correct copy of an initial ‘Materials and Labor’ quote dated 15 November 14, 2019, from [Mountain High] to [Copperstate], for [Mountain High] to 16 construct the accused infringing greenhouse. This quote was provided by counsel for 17 Copperstate on September 12, 2022. This quote represents the earliest Mountain High 18 offer to sell the infringing greenhouse to Copperstate, that [Plaintiff] is aware of. This 19 quote was then accepted by Copperstate and Mountain High proceeded with constructing 20 the infringing greenhouse.” (Doc. 77 ¶ 21.) 21 Plaintiff’s proffered materials are insufficient to establish a November 2019 starting 22 date for the accrual of prejudgment interest. Plaintiff’s theory hinges on the notion that 23 Mountain High’s November 2019 offer to Copperstate constituted an “offer to sell” within 24 the meaning of 35 U.S.C. § 271(a), which provides that “whoever without authority makes, 25 uses, offers to sell, or sells any patented invention, within the United States or imports into 26 the United States any patented invention during the term of the patent therefor, infringes 27 the patent.” But as noted in the order denying Mountain High’s first motion for default 28 judgment, “it is unclear whether offering to construct something that would infringe a 1 patent is the equivalent of offering ‘to sell’ a patented invention.” (Doc. 57 at 8.) Mountain 2 High has done nothing in its subsequent filings to shed any light on that issue. Furthermore, 3 the Court’s independent research suggests that a construction firm’s offer to build a 4 structure utilizing a particular design that is patented—such as Mountain High’s offer 5 here—would not qualify as an “offer to sell” within the meaning of § 271(a). Transocean 6 Offshore Deepwater Drilling, Inc. v. Stena Drilling Ltd., 659 F. Supp. 2d 790, 797-99 (S.D. 7 Tex. 2009) (emphasizing that “[t]he crucial element [of a ‘sale’ or ‘offer for sale’] . . . is 8 that the transaction contemplates delivery and possession of a completed invention” and 9 that the “emphasis on transfer of possession of a product from buyer to seller is consistent 10 with courts’ determinations of what types of commercial transactions rise to the level of a 11 ‘sale’ for purposes of patent infringement”). The Court’s order granting default judgment 12 was supported by allegations that, taken as true, established that Mountain High, without 13 authority, made Plaintiff’s patented invention, as prohibited by § 271(a), during 14 construction of the greenhouse—not that Mountain High sold or offered to sell the patented 15 invention. Thus, the date on which prejudgment interest should begin accruing is the date 16 on which Mountain High first began making Plaintiff’s invention in the process of 17 constructing the accused greenhouse. 18 Unfortunately, Plaintiff’s allegations and supplementary materials are insufficient 19 to establish that date. The TAC alleges that that Copperstate did not accept Mountain 20 High’s November 2019 construction proposal—instead, Mountain High subsequently 21 “issued a follow-up proposal” in May 2020, Copperstate “accepted” that follow-up 22 proposal on an unspecified later date, and Mountain High “constructed” the accused 23 greenhouse on yet another unspecified later date. (Doc. 58 ¶¶ 18-21.) The date on which 24 Mountain High’s “ma[d]e” the infringed patent during the construction process would 25 presumably qualify as a permissible date of infringement (and, thus, a permissible accrual 26 date for prejudgment interest), but the materials provided by Mountain High provide no 27 basis for determining that date.9

28 9 The November 2019 proposal designated that the “period”—presumably the period in which construction was expected to take place—was “February/March 2020.” (Doc. 1 Given Plaintiff’s failure to provide sufficient information to substantiate and 2 calculate its request for prejudgment interest, that request is denied.10 3 B. Post-Judgment Interest 4 Under 28 U.S.C. § 1961(a), “[i]nterest shall be allowed on any money judgment in 5 a civil case recovered in a district court.” Thus, the Court agrees with Plaintiff that an 6 award of post-judgment interest is mandatory here. Planned Parenthood of 7 Columbia/Willamette Inc. v. American Coalition of Life Activities, 518 F.3d 1013, 1017 8 (9th Cir. 2008) (“Section 1961 provides for the mandatory award of post-judgment interest 9 on any money judgment in a civil case recovered in a district court.”) (cleaned up). 10 The Court disagrees, however, with Plaintiff’s assertion that the applicable interest 11 rate for that award is 8.5%, which Plaintiff calculates by cross-referencing “Arizona’s 12 statutory rate as codified at A.R.S. § 44-1201(B),” which is “simple interest calculated 13 using the prime rate plus one percent.” (Doc. 76 at 12.) In fact, post-judgment “interest 14 shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly 15 average 1-year constant maturity Treasury yield, as published by the Board of Governors 16 of the Federal Reserve System, for the calendar week preceding the date of the judgment.” 17 28 U.S.C. § 1961(a). Here, judgment was entered on December 16, 2024. (Doc. 73.) The 18 weekly average 1-year constant maturity Treasury yield during the preceding calendar 19 week (i.e., the week of December 9-13, 2024) was 4.218%.11 Thus, the monthly post- 20 77-1 at 34.) But that proposal was not accepted, and clearly the construction did not take 21 place until sometime after the May 2020 follow-up proposal. 10 If the request had been granted, prejudgment interest would have been calculated 22 using the un-trebled amount, Beatrice Foods Co. v. New England Printing & Lithographing Co., 923 F.2d 1576, 1580 (Fed. Cir. 1991) (“Prejudgment interest can only 23 be applied to the primary or actual damage portion and not to the punitive or enhanced portion of a damage award.”) (cleaned up), potentially using a rate of post-judgment 24 interest different than the one proposed by Plaintiff. Juno Therapeutics, Inc. v. Kite Pharma, Inc., 2020 WL 2844410, *4-6 (C.D. Cal. 2020) (awarding “the rate most 25 consistent with the evidence and arguments presented in this case”). 26 11 Historical interest rate information is located on the Federal Reserve’s website. The data download program available on that website indicates that the daily “Market yield on 27 U.S. Treasury securities at 1-year constant maturity, quoted on investment basis” was 4.2% on December 9, 2024; was 4.22% on December 10, 2024; was 4.21% on December 11, 28 2024; was 4.22% on December 12, 2024; and was 4.24% on December 13, 2024. The average of those figures is 4.218%. || judgment interest on the $383,601 judgment is $1,348.36 (and not the $2,717 figure || requested by Plaintiff). 3 Accordingly, 4 IT IS ORDERED that Plaintiff's motion (Doc. 76) is granted in part and denied || in part. Plaintiff is not awarded attorneys’ fees or prejudgment interest against Mountain 6|| High. However, Plaintiff is awarded monthly post-judgment interest of $1,348.36. 7 IT IS FURTHER ORDERED that an amended judgment shall issue to include the 8 || post-judgment interest. 9 IT IS FURTHER ORDERED that because this order addresses all remaining || issues between Plaintiff and Mountain High, and all other Defendants have now been || dismissed (Docs. 51, 57, 78), the Clerk shall close this case. 12 Dated this 18th day of February, 2025. 13 14 Lm ee” 15 f CC —— Dominic W. Lanza 16 United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28

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