United States District Court, D. Connecticut
REPORT AND RECOMMENDATION
SARAH A. L. MERRIAM UNITED STATES MAGISTRATE JUDGE
KX Tech LLC (“plaintiff”) brought this action
alleging patent infringement pursuant to 35 U.S.C. §1,
et seq. and the Connecticut Unfair Trade Practices Act
(“CUTPA”) against defendants Dilmen LLC and
Huseyin Dilmen (hereinafter collectively referred to as the
“defendants”). [Doc. #1]. On February 15, 2017,
Judge Charles S. Haight granted plaintiff's unopposed
motion for default judgment, and referred this matter to the
undersigned for purposes of conducting an inquest as to the
appropriate amount of damages, costs and attorney's fees
to be awarded, if any. See Doc. #34 at 9-10. A formal
referral for this purpose was entered on February 15, 2017.
[Doc. #35]. For the reasons set forth below, the Court
recommends that $36, 200.02 be awarded to
plaintiff as reasonable attorney's fees and costs.
commenced this action against defendants on May 17, 2016,
alleging infringement of four of plaintiff's patents. See
generally Doc. #1, Complaint. Defendants were served on June
26, 2016. [Doc. ##8, 9]. Defendants filed an Answer to the
Complaint on August 18, 2016. [Doc. #20]. On November 2,
2016, counsel for defendants filed a motion to withdraw as
attorneys of record because defendants terminated defense
counsel's representation and instructed counsel to
withdraw their appearances. See Doc. #23 at 1. On November
10, 2016, Judge Haight entered an electronic order regarding
the motion to withdraw, stating in pertinent part that:
Defendant Dilmen, LLC is advised to obtain counsel and have
them enter an appearance on or before November 23,
2016 and Huseyin Dilmen is advised to either obtain
counsel and have them enter an appearance on or before
November 23, 2016 or enter a pro se
appearance by that date. If Defendants do not do so, then a
default judgment may be entered against Defendants once the
motion to withdraw is granted by this Court.
Doc. #24 (emphases in original). Defendants failed to comply
with Judge Haight's November 10, 2016, Order. As a
result, Judge Haight granted the motion to withdraw and
cautioned: “Defendants are now left without an
appearance entered in this matter and are at risk of default
judgment should Plaintiff so move this Court.” Doc.
December 14, 2016, plaintiff filed a Motion for Default Entry
55(a) and Motion for Default Judgment against defendants.
[Doc. #26]. On December 15, 2016, Judge Haight granted
plaintiff's Motion for Default Entry 55(a), and denied,
without prejudice, plaintiff's Motion for Default
Judgment. [Doc. #28]. On January 11, 2017, plaintiff re-filed
its Motion for Default Judgment [Doc. #29], which Judge
Haight granted as to liability on February 15, 2017. [Doc.
#34]. Judge Haight also enjoined defendants “from
making, using, offering for sale or selling any and all goods
which infringe on Plaintiff's asserted United States
patents[.]” Id. at 9. Judge Haight referred
plaintiff's request for damages, costs and attorney's
fees to the undersigned for an inquest as to the appropriate
amount, if any, to be awarded. See id.; see also Doc. #35.
Default judgment as to liability on all of plaintiff's
claims was entered against defendants on February 16, 2017.
February 23, 2017, the undersigned held a telephonic
conference with counsel for plaintiff to discuss Judge
Haight's referral and the scheduling of an evidentiary
hearing. [Doc. ##38, 39]. During this call, the Court
directed counsel for plaintiff to file a supplemental
memorandum in support of plaintiff's request for damages.
See Doc. #40. On March 22, 2017, plaintiff filed a Motion for
Hearing on Damages, Costs and Attorney's Fees. [Doc.
#42]. On this same date, the Court granted plaintiff's
motion and scheduled an evidentiary hearing for April 20,
2017. [Doc. ##43, 44].
March 22, 2017, the Court also entered an Order requiring
plaintiff to file a pre-hearing memorandum of law. [Doc.
#45]. The Court ordered plaintiff to cause a copy of the
Order to be served on defendants by April 13, 2017, and for
plaintiff to file a proof of service. See Id. at 3.
timely filed its pre-hearing memorandum of law on April 10,
2017. [Doc. #46]. In its memorandum, plaintiff represented
that it elected not to pursue damages, and instead would seek
only an award of costs and attorney's fees pursuant to 35
U.S.C. sections 284 and 285. See Id. at 3-4. In
light of this representation, and plaintiff's assertion
that it intended to solely rely on affidavits and documentary
evidence to support its claim for fees and costs, see
Id. at 2, on April 12, 2017, the Court issued an
Order canceling the April 20, 2017, evidentiary hearing. See
Doc. #47. The Court provided defendants until April 28, 2017,
to object to the costs and fees sought. See Id. The
Court also ordered plaintiff to mail a copy of this Order to
defendants at their last known address. See id.
Defendants have filed no objection to plaintiff's request
for costs and fees.
the Court enters a default judgment, it must accept as true
all of the factual allegations of the complaint, but the
amount of damages are not deemed true.” Tiffany
(NJ) Inc. v. Luban, 282 F.Supp.2d 123, 124 (S.D.N.Y.
2003) (internal citation and quotation marks omitted).
Accordingly, “[t]he district court must instead conduct
an inquiry in order to ascertain the amount of damages with
reasonable certainty.” Credit Lyonnais Sec. (USA),
Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)
(citation omitted). Such an inquest “involves two
tasks: determining the proper rule for calculating damages on
such a claim, and assessing plaintiff's evidence
supporting the damages to be determined under [Rule
the default order entered in this case establishes
[defendants'] liability, the only remaining issue is
whether [plaintiff] has supplied adequate support for the
relief it seeks.” Keystone Glob. LLC v. Auto
Essentials, Inc., No. 12CV9077(DLC), 2015 WL 224359, at
*3 (S.D.N.Y. Jan. 16, 2015) (internal citations omitted)
(collecting cases). “By its terms, [Rule] 55(b)(2)
leaves the decision of whether a hearing is necessary to the
discretion of the district court.” Fustok v.
ContiCommodity Servs., Inc., 873 F.2d 38, 40 (2d Cir.
1989). A hearing is not necessary as long as the Court
“ensure[s] that there was a basis for the damages
specified in a default judgment.” Id. When a
hearing is not deemed necessary, it is appropriate for the
Court to rely “upon detailed affidavits and documentary
evidence[.]” Id.; accord Keystone, 2015 WL
224359, at *3 (“The Second Circuit has held that a
damages inquest may be held on the basis of documentary
evidence alone as long as the court has ensured that there
was a basis for the damages specified in the default
judgment.” (citing Fustok, 873 F.2d at 40 (internal
quotation marks omitted))); IPVX Patent Holdings, Inc. v.
Taridium, LLC, No. 12CV5251(KAM)(SMG), 2014 WL 4437294,
at *2 (E.D.N.Y. Aug. 6, 2014) (“A court may make this
determination based upon evidence presented at a hearing or
upon a review of detailed affidavits and documentary
evidence.” (collecting cases)), report and
recommendation adopted, 2014 WL 4437307 (Sept. 9, 2014);
Cadlerock Joint Venture, L.P. v. Prado, No.
07CV1207(JS)(WDW), 2008 WL 4561611, at *2 (E.D.N.Y. Oct. 7,
2008) (“The amount of damages can be determined without
a hearing as long as the court satisfies itself, through
review of documentary evidence or affidavits, that the amount
is reasonable.” (citing Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111
(2d Cir. 1997))).
plaintiff has provided two declarations and other documentary
evidence supporting its claims for infringement, an award of
attorney's fees and costs, and additional details
concerning defendants' post-judgment activities. See
generally Doc. ##46-2, 46-3. Defendants have not submitted
any opposition to the materials provided by plaintiff.
Because plaintiff's declarations and documentary
submissions provide a basis for an award of the fees and
costs sought, no hearing is required. See IPVX Patent
Holdings, 2014 WL 4437294, at *2-3.
contends that this case should be deemed
“exceptional” in light of “Defendants'
conduct, and Defendants' continuing actions to evade
detection and enforcement[.]” Doc. #46 at 7. In support
of this position, plaintiff specifically relies on: (1)
defendants' failure to defend the case; (2)
defendants' willful refusal to respond to plaintiff's
discovery requests, leaving plaintiff with no basis upon
which to support a request for damages; (3) defendants'
disregard of two cease and desist letters; and (4)
defendants' continued sales of the infringing products
under a different name in an attempt to evade plaintiff's
cease and desist demand. See Id. at 7-8.
285 of the Patent Act authorizes a district court to award
attorney's fees in patent litigation. It provides, in its
entirety, that ‘[t]he court in exceptional cases may
award reasonable attorney fees to the prevailing
party.'” Octane Fitness, LLC v. ICON Health
& Fitness, Inc., 134 S.Ct. 1749, 1752 (2014)
(quoting 35 U.S.C. §285). Construing section 285, the
Supreme Court held
that an “exceptional” case is simply one that
stands out from others with respect to the substantive
strength of a party's litigating position (considering
both the governing law and the facts of the case) or the
unreasonable manner in which the case was litigated. District
courts may determine whether a case is
“exceptional” in the case-by-case exercise of
their discretion, considering the totality of the
Id. at 1756 (footnote omitted). In making such a
determination, “there is no precise rule or
formula” to be followed; rather, the Court should use
its “equitable discretion” in light of the above
considerations. See Id. (quoting Fogerty v.
Fantasy, Inc., 510 U.S. 517, 534 (1994)); see also
Id. at n.6 (In making this determination, district
courts may “consider a ‘nonexclusive' list of
‘factors, ' including ‘frivolousness,
motivation, objective unreasonableness (both in the factual
and legal components of the case) and the need in particular
circumstances to advance considerations of compensation and
deterrence.'” (citation omitted)).
285 demands a simple discretionary inquiry; it imposes no
specific evidentiary burden[.] Indeed, patent-infringement
litigation has always been governed by a preponderance of the
evidence standard[.]” Id. at 1758 (citing
Bene v. Jeantet, 129 U.S. 683, 688 (1889)). In
determining whether plaintiff has established that this
matter is “exceptional, ” for purposes of an
award of attorney's fees pursuant to 35 U.S.C. §285,
the Court thus applies a preponderance of the evidence
Findings of Fact
Haight's Ruling on Motion for Default Judgment
establishes that defendants infringed plaintiff's
patents, and are liable for such infringement. See generally
Doc. #34 at 5-7; see also Id. at 7 (“Plaintiff
has established its claims of patent infringement, and is
entitled to default judgment on each of those
claims.”). Accordingly, here, the Court focuses its
attention on whether the circumstances of this ...