NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PRODOX, LLC, No. 24-2409 D.C. No. Plaintiff - Appellee, 2:20-cv-02035-JAD-NJK v. MEMORANDUM* PROFESSIONAL DOCUMENT SERVICES, INC., doing business as ProDoc-Kytel,
Defendant - Appellant.
PRODOX, LLC, No. 24-2753 Plaintiff - Appellant, D.C. No. 2:20-cv-02035-JAD-NJK v.
PROFESSIONAL DOCUMENT SERVICES, INC.,
Defendant - Appellee.
PRODOX, LLC, No. 24-5646 Plaintiff - Appellee, D.C. No. 2:20-cv-02035-JAD-NJK v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. PROFESSIONAL DOCUMENT SERVICES, INC.,
PRODOX, LLC, No. 24-6013 Plaintiff - Appellant, D.C. No. 2:20-cv-02035-JAD-NJK v.
Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding
Submitted August 11, 2025** San Francisco, California
Before: RAWLINSON, BADE, and KOH, Circuit Judges.
This case arises from a dispute between two litigation support services
companies, ProDox, LLC (“ProDox”) and Professional Document Services, Inc.,
(“PDS”). After a bench trial, the district court awarded ProDox $217,500 in
liquidated damages for PDS’s breach of the parties’ settlement agreement (the
“Agreement”). The district court also awarded ProDox $133,860.75 in attorneys’
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 fees. PDS appealed the merits judgment and the attorneys’ fees judgment. ProDox
cross-appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm the final
judgment and the award of attorneys’ fees, and we dismiss ProDox’s challenge to
the denial of summary judgment.
I.
1. Reviewing de novo, we affirm the district court’s conclusion that the
notice-and-cure provision does not limit PDS’s liability under the liquidated
damages clause. See Shivkov v. Artex Risk Sols., Inc., 974 F.3d 1051, 1058 (9th
Cir. 2020). The Agreement’s notice-and-cure provision requires that “prior to
commencing any action for recovery, ProDox shall first notify PDS of the
perceived violation in writing” and that “PDS shall have thirty (30) calendar days
in which to cure.” The district court correctly held that the provision gives PDS the
opportunity to cease any ongoing violations to prevent ProDox from going to court
to enforce the permanent injunction. It does not, however, prevent ProDox from
assessing liquidated damages based on violations that have already occurred.
Under Nevada law, “contracts will be construed from the written language and
enforced as written.” Ellison v. Cal. State Auto. Ass’n, 797 P.2d 975, 977 (Nev.
1990). The district court did not err in interpreting the Agreement as written.
2. The district court also correctly determined that PDS waived the
affirmative defense that the liquidated damages provision in the Agreement was an
3 unenforceable penalty. PDS did not raise the penalty defense until after discovery
closed and relied upon the provision’s enforceability to avoid discovery
obligations. See Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024) (defining
waiver). As the district court put it, “[i]t would be inequitable to now determine
that ProDox has to overcome a defense that PDS so clearly did not advance earlier
in the litigation, and particularly after PDS relied on the validity of the provision to
avoid providing evidence of actual damages in the first place.” Thus, the district
court correctly determined that PDS waived the penalty defense.1
3. PDS challenges the district court’s factual findings as to the number of
violations proven at trial. Based upon our review of the record, we conclude that
the district court did not clearly err in evaluating the trial testimony and PDS’s
transaction records to establish the number of violations. See Lentini v. Cal. Ctr.
for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004) (reviewing factual
findings after a bench trial for clear error).
1 PDS’s contrary authority, Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212 (9th Cir. 1989), is distinguishable. In that case, the Ninth Circuit declined to find waiver because the plaintiffs “failed to allege prejudice in their ability to respond” to the penalty defense, and the plaintiffs “did not argue waiver during the trial[.]” Id. at 215. Here, in contrast, ProDox did argue waiver and prejudice at trial. Thus, Idaho Plumbers does not control here.
4 4. We reject PDS’s argument that the district court “selectively enforce[ed]
the federal rules against PDS.” Federal Rule of Civil Procedure 37 prohibits the
use of undisclosed information at trial “unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1). The district court did not abuse its
discretion in disallowing PDS’s undisclosed evidence at trial. Nor did the district
court abuse its discretion in allowing ProDox to present its liquidated damages
claim because ProDox consistently maintained that it intended to seek such
damages under the Agreement. Likewise, the district court’s decision to reopen the
case for additional testimony was “a matter within the discretion of the trial judge.”
Merritt-Chapman & Scott Corp. v. Frazier, 289 F.2d 849, 854 (9th Cir. 1961).
II.
5. We dismiss ProDox’s cross-appeal challenge to the district court’s
summary judgment ruling. “[T]he denial of a motion for summary judgment is not
reviewable on an appeal from a final judgment entered after a full trial on the
merits.” Price v. Kramer, 200 F.3d 1237, 1243 (9th Cir. 2000) (quoting Locricchio
v. Legal Servs. Corp., 833 F.2d 1352, 1358–59 (9th Cir. 1987)).
6. The district court’s refusal to entertain a second summary judgment
motion was not an abuse of discretion. “[D]istrict courts retain discretion to weed
out frivolous or simply repetitive motions.” Hoffman v. Tonnemacher, 593 F.3d
908, 911 (9th Cir. 2010).
5 7. The district court correctly denied ProDox’s motion for a directed verdict
during the bench trial. Because ProDox failed to introduce the full summary
judgment record at trial, the district court did not clearly err in its conclusion that
ProDox established just 82 violations at trial.
III.
8.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 14 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
PRODOX, LLC, No. 24-2409 D.C. No. Plaintiff - Appellee, 2:20-cv-02035-JAD-NJK v. MEMORANDUM* PROFESSIONAL DOCUMENT SERVICES, INC., doing business as ProDoc-Kytel,
Defendant - Appellant.
PRODOX, LLC, No. 24-2753 Plaintiff - Appellant, D.C. No. 2:20-cv-02035-JAD-NJK v.
PROFESSIONAL DOCUMENT SERVICES, INC.,
Defendant - Appellee.
PRODOX, LLC, No. 24-5646 Plaintiff - Appellee, D.C. No. 2:20-cv-02035-JAD-NJK v.
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. PROFESSIONAL DOCUMENT SERVICES, INC.,
PRODOX, LLC, No. 24-6013 Plaintiff - Appellant, D.C. No. 2:20-cv-02035-JAD-NJK v.
Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding
Submitted August 11, 2025** San Francisco, California
Before: RAWLINSON, BADE, and KOH, Circuit Judges.
This case arises from a dispute between two litigation support services
companies, ProDox, LLC (“ProDox”) and Professional Document Services, Inc.,
(“PDS”). After a bench trial, the district court awarded ProDox $217,500 in
liquidated damages for PDS’s breach of the parties’ settlement agreement (the
“Agreement”). The district court also awarded ProDox $133,860.75 in attorneys’
** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
2 fees. PDS appealed the merits judgment and the attorneys’ fees judgment. ProDox
cross-appealed. We have jurisdiction under 28 U.S.C. § 1291. We affirm the final
judgment and the award of attorneys’ fees, and we dismiss ProDox’s challenge to
the denial of summary judgment.
I.
1. Reviewing de novo, we affirm the district court’s conclusion that the
notice-and-cure provision does not limit PDS’s liability under the liquidated
damages clause. See Shivkov v. Artex Risk Sols., Inc., 974 F.3d 1051, 1058 (9th
Cir. 2020). The Agreement’s notice-and-cure provision requires that “prior to
commencing any action for recovery, ProDox shall first notify PDS of the
perceived violation in writing” and that “PDS shall have thirty (30) calendar days
in which to cure.” The district court correctly held that the provision gives PDS the
opportunity to cease any ongoing violations to prevent ProDox from going to court
to enforce the permanent injunction. It does not, however, prevent ProDox from
assessing liquidated damages based on violations that have already occurred.
Under Nevada law, “contracts will be construed from the written language and
enforced as written.” Ellison v. Cal. State Auto. Ass’n, 797 P.2d 975, 977 (Nev.
1990). The district court did not err in interpreting the Agreement as written.
2. The district court also correctly determined that PDS waived the
affirmative defense that the liquidated damages provision in the Agreement was an
3 unenforceable penalty. PDS did not raise the penalty defense until after discovery
closed and relied upon the provision’s enforceability to avoid discovery
obligations. See Hebrard v. Nofziger, 90 F.4th 1000, 1006 (9th Cir. 2024) (defining
waiver). As the district court put it, “[i]t would be inequitable to now determine
that ProDox has to overcome a defense that PDS so clearly did not advance earlier
in the litigation, and particularly after PDS relied on the validity of the provision to
avoid providing evidence of actual damages in the first place.” Thus, the district
court correctly determined that PDS waived the penalty defense.1
3. PDS challenges the district court’s factual findings as to the number of
violations proven at trial. Based upon our review of the record, we conclude that
the district court did not clearly err in evaluating the trial testimony and PDS’s
transaction records to establish the number of violations. See Lentini v. Cal. Ctr.
for the Arts, Escondido, 370 F.3d 837, 843 (9th Cir. 2004) (reviewing factual
findings after a bench trial for clear error).
1 PDS’s contrary authority, Idaho Plumbers & Pipefitters Health & Welfare Fund v. United Mech. Contractors, Inc., 875 F.2d 212 (9th Cir. 1989), is distinguishable. In that case, the Ninth Circuit declined to find waiver because the plaintiffs “failed to allege prejudice in their ability to respond” to the penalty defense, and the plaintiffs “did not argue waiver during the trial[.]” Id. at 215. Here, in contrast, ProDox did argue waiver and prejudice at trial. Thus, Idaho Plumbers does not control here.
4 4. We reject PDS’s argument that the district court “selectively enforce[ed]
the federal rules against PDS.” Federal Rule of Civil Procedure 37 prohibits the
use of undisclosed information at trial “unless the failure was substantially justified
or is harmless.” Fed. R. Civ. P. 37(c)(1). The district court did not abuse its
discretion in disallowing PDS’s undisclosed evidence at trial. Nor did the district
court abuse its discretion in allowing ProDox to present its liquidated damages
claim because ProDox consistently maintained that it intended to seek such
damages under the Agreement. Likewise, the district court’s decision to reopen the
case for additional testimony was “a matter within the discretion of the trial judge.”
Merritt-Chapman & Scott Corp. v. Frazier, 289 F.2d 849, 854 (9th Cir. 1961).
II.
5. We dismiss ProDox’s cross-appeal challenge to the district court’s
summary judgment ruling. “[T]he denial of a motion for summary judgment is not
reviewable on an appeal from a final judgment entered after a full trial on the
merits.” Price v. Kramer, 200 F.3d 1237, 1243 (9th Cir. 2000) (quoting Locricchio
v. Legal Servs. Corp., 833 F.2d 1352, 1358–59 (9th Cir. 1987)).
6. The district court’s refusal to entertain a second summary judgment
motion was not an abuse of discretion. “[D]istrict courts retain discretion to weed
out frivolous or simply repetitive motions.” Hoffman v. Tonnemacher, 593 F.3d
908, 911 (9th Cir. 2010).
5 7. The district court correctly denied ProDox’s motion for a directed verdict
during the bench trial. Because ProDox failed to introduce the full summary
judgment record at trial, the district court did not clearly err in its conclusion that
ProDox established just 82 violations at trial.
III.
8. We affirm the district court’s conclusion that ProDox was the prevailing
party under Nevada Law. The Nevada Supreme Court has explained that “a party
need not succeed on every issue” to be a prevailing party. LVMPD v. Blackjack
Bonding, 343 P.3d 608, 615 (Nev. 2015). Rather, a party can prevail “if it succeeds
on any significant issue in litigation which achieves some of the benefit it sought in
bringing suit.” Valley Elec. Ass’n v. Overfield, 106 P.3d 1198, 1200 (Nev. 2005)
(citation omitted). As PDS concedes, ProDox brought a breach of contract claim to
enforce the Agreement and won. ProDox therefore succeeded on the linchpin issue
in this litigation and achieved “the benefit it sought in bringing suit.”2 Id. at 1200.
9. The district court did not abuse its discretion in concluding this case did
not qualify as an “exceptional case[]” under 15 U.S.C. § 1117(a). The district court
considered the “totality of the circumstances,” including the merits of ProDox’s
2 That PDS won summary judgment on one claim and ProDox voluntarily dismissed its trademark infringement allegations does not change this analysis. Nevada law evaluates whether a party prevailed in a “substantial aspect of the case.” Davis v. Beling, 278 P.3d 501, 515 (Nev. 2012). The district court correctly determined that PDS’s victories were not a substantial aspect of this case.
6 trademark claim and the parties’ respective litigation conduct. SunEarth, Inc. v.
Sun Earth Solar Power Co. Ltd., 839 F.3d 1179, 1181 (9th Cir. 2016) (en banc)
(per curiam). We agree with the district court’s conclusion that, even assuming
PDS prevailed on the Lanham Act claims, this case was not exceptional under
§ 1117(a).
10. We reject PDS’s argument that the district court’s fee award was
unreasonable. Under Nevada law, the relevant factors when determining
reasonable attorneys’ fees include: “(1) the qualities of the attorney, (2) the
character of the work to be done, (3) the actual work performed by the attorney,
and (4) the case’s result.” Haley v. Dist. Ct., 273 P.3d 855, 860 (Nev. 2012) (citing
Brunzell v. Golden Gate Nat’l Bank, 455 P.2d 31, 33 (Nev. 1969)). The district
court correctly considered and rejected PDS’s challenges to ProDox’s time spent
responding to PDS’s aggressive litigation tactics.
IV.
11. ProDox’s challenge to the district court’s decision to reduce the fee
award is likewise unpersuasive. Although the district court concluded that
ProDox’s time spent and rates were reasonable, the district court reduced ProDox’s
requested fees by 50 percent because of ProDox’s “limited success” at the bench
trial. Nevada law explicitly allows consideration of “the case’s result” when
determining whether a fee award was reasonable. Id. That evaluation includes a
7 comparison between the potential judgment and the judgment achieved. See id.
The district court therefore acted within its discretion in reducing ProDox’s fees
given ProDox’s deficient performance at trial.
AFFIRMED IN PART AND DISMISSED IN PART.