Phonometrics, Inc. v. Hyatt Corp.

89 F. App'x 738

Opinion

ORDER

MICHEL, Circuit Judge.

Phonometrics, Inc. and John P. Sutton move to remand this case to the United States District Court for the Southern Dis trict of Florida. Hyatt Corporation has not responded.

This is one of the many related cases in which the district court awarded attorney fees and costs to defendants that were sued by Phonometrics. The briefing schedule in this appeal was stayed, pending disposition by this court of Phonometrics’ appeals regarding the merits of the patent infringement action, 02-1418 et al. On September 11, 2003, we affirmed the district court’s decision in 02-1418 et al. The court requested that Phonometrics inform the court how this appeal concerning the attorney fee award should proceed in view of our affirmance of the district court’s decision on the merits. Phonometrics and Sutton move to remand, based on three arguments: (1) that the district court improperly imposed sanctions against counsel pursuant to 28 U.S.C. § 1927; (2) that the award improperly includes work performed related to a previous appeal before this court; and (3) that the attorney fee decision does not distinguish between Phonometrics’ liability pursuant to 35 U.S.C. § 285 and counsel’s liability pursuant to 28 U.S.C. § 1927.

Concerning Sutton’s first argument, that we should disturb the district court’s determinations concerning counsel’s actions and the imposition of the § 1927 attorney fee award, we disagree. In Phonometrics, Inc. v. Westin Hotel Co., 350 F.3d 1242 (Fed.Cir.2003) we rejected such arguments and held that this district court did not abuse its discretion in awarding attorney fees in that case, involving another defendant.

Phonometrics’ and Sutton’s second argument is that the award improperly includes fees for work performed related to an appeal in which Phonometrics was the prevailing party. As we held in Phonometrics, 350 F.3d at 1250, the attorney fee award should not include fees incurred in connection with any such appeals. Thus, we remand for a recalculation, if appropriate, to exclude any amount related to any such appeals.

Footnotes

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We disagree with Phonometrics’ and Sutton’s third argument, that the district court’s award did not distinguish between Phonometrics’ liability under § 285 and Sutton’s liability under § 1927. As we similarly held in Phonometrics, 350 F.3d at 1249 n. 9, it is sufficient that the district court in this case held that “Plaintiff is responsible for these fees and costs pursuant to 35 U.S.C. § 285” and that “Plaintiffs counsel is responsible for these fees and costs pursuant to 28 U.S.C. § 1927.”

Accordingly,

IT IS ORDERED THAT:

This case is remanded to the United States District Court for the Southern District of Florida for a recalculation, if appropriate, of the amount of fees awarded if that amount included work related to any appeals in which Phonometrics prevailed. In all other aspects, the district court’s decision is affirmed.

Although Hyatt did not respond to the motion for remand, Hyatt states in its brief that it does not seek fees for any work related to appeals. Nonetheless, because Hyatt did not respond to the motion, we remand out of an abundance of caution to permit the district court to make the determination.