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Parks, LLC v. Tyson Foods, Inc.

United States District Court, E.D. Pennsylvania

August 17, 2017

PARKS, LLC, Plaintiff
v.
TYSON FOODS, INC. and HILLSHIRE BRANDS COMPANY, Defendants

          DEFENDANTS' MOTION FOR ATTORNEY'S FEES AND COSTS, ECF NO. 184 - DENIED

          Joseph F. Leeson, Jr. United States District Judge

         I. Introduction

         This case involves a trademark dispute between Parks, LLC, which sells various food products-primarily sausages-under the “Parks” name, and Tyson Foods, Inc. (and its wholly-owned subsidiary Hillshire Brands Company), maker of the popular “Ball Park” brand of hot dogs. Parks brought this suit after Tyson launched a new line of “super-premium” hot dogs under the name “Park's Finest.” In a previous opinion, the Court entered summary judgment in Tyson's favor, 186 F.Supp.3d 405, 412 (E.D. Pa. 2016), aff'd, 863 F.3d 220 (3d Cir. 2017), which Tyson followed with a request for attorney's fees and related nontaxable expenses. See Fed. R. Civ. P. 54(d)(2). In its view, this is an “exceptional” case that warrants fee shifting under the Lanham Act. See 15 U.S.C. § 1117(a). In the Court's view, it is not.

         II. Standard of Review - Award of Attorney's Fees under the Lanham Act

         Under the Lanham Act, a “court in exceptional cases may award reasonable attorney fees to the prevailing party.” § 1117(a). “[A]n ‘exceptional' case is . . . one that stands out from others, ” Octane Fitness, LLC v. ICON Health & Fitness, Inc., 134 S.Ct. 1749, 1756 (2014), in the sense that “(a) there is an unusual discrepancy in the merits of the positions taken by the parties or (b) the losing party has litigated the case in an ‘unreasonable manner, '” Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 314-15 (3d Cir. 2014) (quoting Octane Fitness, 134 S.Ct. at 1756).

         There is “no precise rule or formula” to make this determination, Octane Fitness, 134 S.Ct. at 1756, so “[w]hether litigation positions or litigation tactics are ‘exceptional' enough to merit attorneys' fees must be determined by district courts ‘in the case-by-case exercise of their discretion, considering the totality of the circumstances, '” Fair Wind, 764 F.3d at 815 (quoting Octane Fitness, 134 S.Ct. at 1756). Some considerations that may help to illuminate this inquiry include “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.” Octane Fitness, 134 S.Ct. at 1756 n.6 (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994)).

         III. This case was not “exceptional” within the meaning of § 1117(a).

         A. The Manner in which the Case was Litigated

         It is true that this case was unusual in the degree to which discovery had to be managed by the Court. By the time discovery had closed, the Court had issued no fewer than fifteen discovery-related opinions and orders that together spanned approximately 100 pages-longer than the Court's preliminary injunction and summary judgment opinions combined. But unlike some of the most rancorous discovery periods that the Court has overseen, neither side resorted to the sort of “wasteful procedural maneuvers” or “dilatory tactics” that are the hallmark of a case that has been litigated in an unreasonable manner. See John G. Roberts, Jr., 2015 Year-End Report on the Federal Judiciary 11 (Dec. 31, 2015), https://www.supremecourt.gov/publicinfo/ year-end/2015year-endreport.pdf. As the Court observed when it denied Tyson's motion for discovery sanctions, the source of these numerous, intractable discovery disputes instead seemed largely attributable to “the parties' failures to effectively communicate their respective positions and concerns” to each other, as though “the two sides [were] largely speaking two different languages” as they responded to each other's discovery requests and objections. Order 1 n.1, ECF No. 180 [hereinafter Sanctions Order].[1] Both sides seemed to believe earnestly in the correctness of their positions, but their respective understandings of what each discovery request sought and what each side needed to do to discharge its obligations were poles apart.

         That suggests, at its core, a failure by the two sides to work collaboratively at discovery, and it cannot be emphasized enough that “lawyers-though representing adverse parties-have an affirmative duty to work together . . . to achieve prompt and efficient resolutions of disputes.” Roberts, supra, at 6. But it does not suggest that one side-in the case of the instant motion, Parks-litigated the case in an unreasonable manner.

         In support of its present motion, Tyson revisits a number of the accusations it levied against Parks during discovery. Chief among them is Tyson's contention that Parks responded to its document requests with a 30, 000-page “document dump” filled with “largely irrelevant” materials that Parks did not review prior to production-a charge it repeated often throughout the case. Mem. Supp. Mot. 6, 8, ECF No. 184-1. But as the Court explained when it ruled on one of the motions to compel that Tyson filed during discovery, if a party elects-as Parks did here-to respond to a document request by producing documents “as they are kept in the usual course of business, ” see Fed. R. Civ. P. 34(b)(2)(E)(i), it “is not required to sift through the documents to separate the responsive documents from the non-responsive.” Parks, LLC v. Tyson Foods, Inc., 2015 WL 5042918, at *2 (E.D. Pa. Aug. 26, 2015). The Court left the door open for Tyson to renew its motion to compel if it were able to show that the documents had not actually been produced as they were kept in the usual course of business, see Id. at *3 (pointing out that Tyson was “not foreclosed from seeking relief . . . in the event that [Parks's] production proves to have been inadequate under Rule 34”), but Tyson never did. Tyson did revisit the topic in the motion it filed for discovery sanctions, but only to argue that Parks should not have been permitted to rely on the usual-course-of-business option in light of the fact that those 30, 000 documents had been in storage, not in active use. But that alone does not prevent a party from relying on the usual-course-of-business option as long as “the way in which the documents are kept has not changed from how they were kept in the usual course of business, ” In re Sulfuric Acid Antitrust Litig., 231 F.R.D. 351, 363 (N.D. Ill. 2005), and Parks produced a declaration from one of its co-owners that the documents were stored “in the same manner and order in which they were kept during the operation of the business, ” Mitchell Decl. ¶ 8, ECF No. 83-1.[2]

         Tyson also renews its complaint that nowhere among that initial 30, 000-document production were there any documents that had been created in the past fourteen years. That too was addressed during discovery, when the Court pointed out that this accusation “means little without any reference to any specific document requests” that Tyson believes Parks did not adequately answer. Parks, 2015 WL 5042918, at *7 n.4. As the Court explained at the time, a number of Tyson's document requests sought documents that would be expected to be at least fourteen years old, such as its request for “[d]ocuments sufficient to identify every person who was or is an officer or director of Parks, LLC”-an entity that was formed in 1996 and appears to have changed little since that time-or Tyson's request for “[a]ll documents concerning [Parks's] knowledge that the Parks Marks and assets were [once] possibly for sale by H.G. Parks”-a reference to events that occurred twenty years before this case was filed. Id. Parks also points out that since 2001, the Parks company has functioned as little more than a two-person holding company for the Parks mark, neither producing nor selling any Parks-branded products itself. As a result, the documents in its possession that were responsive to Tyson's demands for information about the specific products sold under the Parks name, the volume of sales, and the distribution channels “were quite limited and dated.” Pl.'s Opp'n 8, ECF No. 190. As the Court noted when it denied Tyson's motion for discovery sanctions, much of Tyson's frustration with Parks's discovery responses seemed “to be attributable to the fact that [Parks] simply did not possess the information that [Tyson was] seeking, ” which was likely a reflection of the limited “size and sophistication” of the Parks company in the form that it presently exists. Sanctions Order at 1 n.1.

         To be sure, Parks's discovery responses were not perfect. As Tyson observes, the Court had to order Parks to amend its responses to Tyson's interrogatories because Parks had initially responded to some of them with only a statement that it would produce “responsive, non-privileged documents . . . pursuant to a reasonable search” at some unspecified time in the future. 2015 WL 5042918, at *4. The second attempt Parks made to answer those interrogatories also fell short of the mark, when it tried to answer them through a combination of written responses and reliance on Rule 33(d) (which allows a party to forgo a written response if it instead directs the opposing party to records where the information can be found) without actually “specifying the records” that were responsive to Tyson's requests. Fed.R.Civ.P. 33(d)(1). Parks tried to explain away that deficiency by suggesting that Tyson already knew where to find the records, because Parks had described where they could be found in one of its previous briefs. While that may have been so, that does not comply with the letter of the rule. Parks was also slow to respond to Tyson's document requests. Its initial production was a week late, and some documents were produced considerably after that. Parks concedes that “[i]n some respects, [it] found the discovery overwhelming, ” Pl.'s Opp'n 6, and to some extent, the Court is sympathetic to that view, [3] but the discovery rules require litigants to be proactive, and the prudent course of action would have been to either seek an extension of time or apply for a protective order.

         Even with these shortcomings in mind, this is not, in the Court's view, “the rare case in which a party's unreasonable conduct-while not necessarily independently sanctionable-is nonetheless so ‘exceptional' as to justify an award of fees.” Octane Fitness, 134 S.Ct. at 1756-57. A review of the discovery-related opinions the Court issued reveals that it was ultimately a mixed bag for both sides. Tyson won some of its discovery challenges, but many others were turned away to some degree or another for being unfounded or for overreaching. See 2015 WL 5042918, at *2-8; 2015 WL 9316060, at *10-17. “[T]he fact that [Tyson] was on the losing side of some of those discovery disputes cuts ...


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