the prevailing party on a cyber piracy claim and being denied recovery of his attorneys fees and court costs the standard of review for both denial of court costs and attorney's fees is discretion of the court the eleventh circuit has stated that when you take a look at abuse of discretion that you take a look at number one was there a error in judgment by the by the underlying or by the lower court and number two was there an incorrect legal standard applied as briefed we have stated that the incorrect legal standard has been applied both for the costs and for the fees and because judge the district court judge cook did not indicate the reasons for her denial of cost and or fees that as a matter of saw did you seek fees under the cyber piracy statute we did have a chance to seek fees under the cyber piracy statute because the district court unilaterally denied that when entering the motion to dismiss so the motion dismissed was heard on september twenty eighth the court entered its order and said in its order i declined to exercise my discretion to award attorney and cost to the defendant and you asked for during the discussion with the court about the dismissal either in writing or orally had you requested fees and costs in any way shape or form yes your honor and that is there is a communications post hearing where judge cook granted in a basement for mr siddons counsel who was not at the table but was mr rosen to come up with some sort of evidence that have a hearing on the summary judgment during that abatement there was letter sent and also our objection to a consent to dismiss saying that we would be denied fees and we're seeking fees under eighty one thirty one so the yes the record is does contain and you did see fees under the cyber piracy yes and  we have no cut we have no published precedent applying the fees and cost portion of that statute there is one when you say with the eleventh circuit that's correct and i did it my brief the versus gomez case a messy only one it's a southern district court out of new york and it has never been cited by any other case but you're correct your honor but with regards to the standard i mean doesn't doesn't do you think first of all do you think that eighty one thirty one trumps rule fifty four which normally awards cost to a prevailing party i do not believe so i believe that rule fifty four d provides that the prevailing party caution be allowed as a batter of course of the prevailing party unless the court directs otherwise right but then eighty one thirty one the provision you're traveling on says the court may also in its discretion award cost an attorney's fee to the prevailing party and that standard of discretion would be the same description this court has announced time and time again with regards to awarding costs that the only reason why you can deny it is number one if it's an indigent status or two there is some misconduct on behalf of the prevailing party during the course of litigation in this case the discretion was never explained so therefore and the court is dischord as stated when you don't state the reasons for your denial that's reversible error and of itself because you can't determine what whether clear judgment or whether there was an error in judgment because you've done explain the basis let me ask you one more procedural question before you get to the rest of your argument given the way things played out in the district court did you have a because the court said not only in the dismissal but also in the denial of re dialer motion for reconsideration that fees and costs would not be allowed so you didn't have a chance because it was denied straight up by you'd normally have yes certain number of days after judgment to seek fees and costs yes and here the judge told you at the judgment and reconsideration that there was going to be no such award yes you think there's a different standard a different discretionary standard for fees and or costs under eighty one thirty one or is it the same i think it's going to be the same and i don't want to say i think i've been pondering that question and waiting for that question from the bench and so here's here's we know what the standard is under rule fifty four and that is that there's a presumption entitlement and the losing party has got to tell the court why and we're presumed to have it unless we have some sort of misconduct the discretion fees is not stated in eighty one thirty one and as judge cook noted there's a dearth of case law but so the standard i would submit to the court would be one is is there misconduct on behalf of the prevailing party when you take a look at the bow ghani versus gomez case the only case that kind of discusses court costs the court looked at the contemptuous behavior of the prevailing party and that case the ex wife for failing to attend hearings follow court orders and also the bad faith intent to sell the website in this case we have no evidence and there is none never will be of any misconduct by mr doherty and secondly you have no evidence of any intent to sell and that was in the motion to dismiss for which the court even said and i have the page on it's page thirty nine of the transcript is thirty nine twenty nine where the court said show me an e mail show me a telephone record show me a sticky on a refrigerator note and i'll give you it a let you go a let you have this case in the court said even if i gave you the opportunity to amend i don't think that you can make it and that's on page twenty nine counsel your you know you you were it sounded to me and correct me that you were saying well the standard under eighty one thirty one ought to be like the standard under fifty four d which really no one attorney's fees you're really reversing the american rule without any statutory basis as you say there's not one there but the presumption is usually the other way would be analogous statutes or another not wholly analogous lanham act patent and so forth generally talks about a c either bad faith or exceptional cases or a series of factors that are quite different from simply going to the british rule i do you like any of those other standards are you sort of holding that we ought to get the british rule under this statute at section eleven twenty five lanham act when it did the court noted and i'm like to expand on this in just a moment but the court noted that there was contemptuous acts by the prevailing party by the losing party who was the one that created the main site and to that she had the bad faith intent to profit from the sale of that mark or that website in this case so that would almost be the fifty four looking at the  under rule fifty four looking at misconduct during the course of litigation in this case what you have is judge cook saying i find no bad faith on behalf of the in filing the lawsuit not during the course of litigation that's an improper legal standard under any legal standard however if the court would consider the standards under eleven twenty five as  infer to determine if there was bad faith the court needs to remember as cited the solid host case that the bad faith is not a general bad faith the bad faith is a specific bad faith to profit from the sale of so judges judge cook's use of bad faith in the filing of the lawsuit almost changes the standard to rule eleven a case where you have a frivolous case and continued prosecution of the case that can't be pled so mr thurman prevailed on the t r o to begin with your honor i'm not certain if there was a prior prevailing or if it was consent and whatever did not in your client's name or the company's crime but the domain name was actually registered in the name of mr dorothy's wife is that correct that is absolutely correct ok and what's important if i met it ended your client ever disclose that fact when the lawsuit was filed or any a point in time absolutely yes and for how early when he answered the complaint on december twenty seventh two thousand and fourteen he denied ownership of the of the abscess different than mine i'm talking about those clothes that his wife had it yes and secondly i was want to make sure he said how really i may just say first he denied ownership and then in his deposition he stated patricia doherty owned it so yes that was in a deposition that would be correct answer my question and what's and what's important as we did file something with the court yesterday but even assuming the court will not look at that the  on behalf of the apple e bryan sigman may please the court the trial court was well within its discretion to deny joseph daughter dorothy's request for fees and costs when the record below demonstrated clear equitable reasons for doing so namely that mr dorothy had engaged in it objectively remarkable in an offensive pattern of defamatory conduct towards mr cid men and  that for the reasons that she discussed with trial counsel on the record in the motion to dismiss hearing that provided further support for her denial of fees and costs and what's crucial with respect to that fees and the motion to dismiss hearing is that there was extensive colloquy with counsel about whether mr dorothy's conduct was sufficient to meet the specific intent were to acquire men of section eighty one thirty one what had happened is and it turns out although we didn't learn this until midway through the case that patricia dorothy mr dorothy's wife had registered a domain name in my client's name brian sigman dot com then mr dorothy went on to the internet found photos of mr sigman and his wife on their honeymoon populated the website with those photographs and then stated on the website don't trust brian sigman stealing your wealth do not trust or do business with mr sigman is father's company in new jersey he has nothing to do with this case then mr dorothy copied and pasted that u r l name and sent an email to mr cid men saying you asked for it and now it's happening you agreed to this and within a few days you and louis will have at least five sites each and then the search engines will kick in you will not get away with stealing my money that's in page eighty nine of the appendix then mr dorothy sent an email to simmons business colleague well i don't want to rehash the entire letter nation history but i thought so but i would like to ask you whether you think that there are same question i asked your opponent are there different standards under eighty one thirty one for an award of costs and an award of fees absolutely the standard on the award of costs is an abuse of discretion and there is a presumption that the prevailing party gets fees like judge bob's pointed out be cost excuse me that the prevailing party gets costs and the trial court must come up with reasons to shift that burden i guess you would say were denied the fuel cost to the pro to the prevailing party the courts was to use an equitable analysis looking at all the facts and circumstances in the fees context of section eighty one thirty one the presumption is that nobody gets in less the court in its discos and did judge cook anything that would address the cost enders yes absolutely because the district court said she didn't find that mr sigman acted in bad faith at a cost them in the correct well let me address i not acting in bad faith you don't get out of kloster you well the so let me discuss the standard and on the issue of cost the courts discretion is guided by equitable principles and i admit that i'm handicapped in this case because i came in late but judge in it from a six circuit case the white and white case from nine hundred eighty six seven eighty six fed second seven twenty eight the court of appeals in that case went through all the many different factors that a trial court sitting there watching the case seeing everything that happens can go through in making a determination of whether the award of costs is permissible you can look at whether it's a close question of law the trial court can look whether there has been and it was a closely fought case the trial court can look at the filing actually did the judge really do any of that with reference to cost separate from fees that is it seemed to me that the judge gave a reason be it briefly for why not awarding fees it's a novel statute you've already been hit hard by being thrown  out with prejudice but that happens in zillions of cases where costs are awarded so that's where i didn't see anything separate as to why this would be  in the nature of a situation where you wouldn't get costs because the reasons given for the denial of fees apply with equal force for the denial of costs why because the question is and this was what was disc discussed extensively in that hearing is to the question do the statements you will not get away with stealing my money and where is my money or those two statements sufficient to meet the specific intent requirement of section eighty one thirty one a pretty close legal question and of course we're all handicapped because there's not a lot of case law to guide the district court but the but because the the district court referenced that extensive discussion and saying for the reason stated in the hearing the trial court would be with well within her discretion to deny fees and costs on that or deny costs on that last will i mean that's what i'm trying to get you away from it frankly you know it's not really relevant the case is gone but i i thought your client might have a pretty good case if i had been the trial judge but the the statement that it's a close case and the  side has points again doesn't that happen in the mind run of cases that in order to deny costs you usually have to have something pretty specific more than more than your the other side had a good at a good case as well well i would say judge it on abuse of discretion we say could someone find the fact that this case was so close and the conduct was so objection of lee reprehensible looking in fairness because that's that's really the the lodestar here what's fair that's how the trial court is allowed to make the decision to deny the award of costs and overcome the presumption if the court binds on a case by case basis basis that fairness requires that the trial court has a reasonable person could concur loued mr simpson having been subject to this having a really close case i would argue on the cybersquatting not withstanding with the district court felt look like the conference she references was transcribed at docket one seven six yes you are no she says in her motion for reconsideration on the cost and fees not only the reason said before but for the reasons why discussed at this hearing on twenty eight twenty fifteen when she was transcribed sometimes hearings are and are not but that appears to be transcribed yes your honor and so if i were to go look at that are there any reasons comments that would support by she's probably to nine cost here absolutely she gets into talking about the parties and everything and the climbs i think yes she she specifically said i have to review that i was trying to see if we had the record and here stephanie do we have the record here now it's electronic ok this is the f one seven one seven six ok that's all i need to know but so that would be you have a transcript go back to your argument i just want to say that record entry thank you and i think when you look through that transcript i would draw your attention and i don't have the specific page in front of me is not a very long transcript i think it's about forty pages but the trial court says well we certainly have a defamation claim here i mean i think what the trial court was was saying is there is objectionably tortious conduct here there is conduct that is for which you should get recompense mr sigman the question is is it proper to have come in federal court and because it's such a close question again would they would anybody in their right mind say that under these facts it's just not fair to allow mr doretti to get his costs because he did all these wrote all these e mails he sent he created this website he used it and threatened my client with that with would any district court in their right mind say that mr doherty really shouldn't get cost under equity here absolutely and that's the abuse of discretion standard is it could someone come up with that kind of a reasonable analysis and i think the answer is yes it's everyone i think would be hate to be in the situation  and certainly that would be the trial court would be well within her discretion to to to make a decision based on that turning back to section eighty one thirty one to close out on the question if he's again i think judge bogs you have it absolutely correct we are in america we don't follow the british rule i think that the again those same discretionary factors would support the trial court's decision not to award fees and in fact the t did import those lanham act standards which is a finding of fraud bad faith or willful conduct she specifically found no bad faith on behalf of mr submitted bringing this action i don't think it's  action private cause of action contain within it the statute issue here eighty one thirty one governs individual causes of action so that the statutes really closely parallel one another and the trial court in in looking at those statutes look to the closest analogous that you did hand but again it's the the court didn't have to award anything if it didn't want to under that statute it certainly might have of the wanted to certainly would have had to cross over into something that was extraordinary i think that was judge jordan's comment i don't think there was anything extraordinary that mr sigman did here besides of indicate his rights or at least attempt to that would justify having attorneys fees award against him if there are no further questions i will sit down thank you very much yes thank you your honors but first i'd like to address the fact that regardless of what standard this court would announce should have been applied there was no evidentiary hearing for us to establish the fact that the that there was a basis for attorney's fees having made the ruling without even us having an opportunity to file a bill of costs or motion for fees and simply cut us off actually you normally rely on entitlement before you put that in concealment conceal you will not find any iteration of that term the entire hearing was based on the fact that mr doherty had never had an intent to sell it it being the website and what's very important here is that the brief filed by mr citizens attorney does this revisionist history about some sort of concealment that never occurred in these pleadings or sues me in this litigation it is very important for the court to understand that while the may be a claim for defamation there was never a claim for cyber piracy to hail mr doherty into federal court with all that attended fees and costs was a plan by mr  up the issue to attempt to get fees to that he would get attrition by with a concession by attrition of fees and costs there is no basis and as the trial court said on page twenty nine of that transcript and if your hon absolutely you're wouldn't your client have been happy to get the money that he claimed was owed him and and then he would pull down the website or would he have continued defame him him allegedly defaming him if he'd gotten his money actually the evidence establishes in the truck trial trip excuse me the deposition transcript that the website for he pulled down two days after it was put out no more than forty eight hours so that he said that it was my money was already gone  twenty four to forty eight hours and was down before the lawsuit was ever filed never before used again so the answer that question would be no that the there was no intent to sell in the case you know on it my and put up a registered name se one would have been met the third one the court stated that if even if i gave you an opportunity to amend to bring mr already in you can't make it because there was never intent to sell may i add one more thing which is of no  to two items and this court went and used that use a standard saying bad faith in the filing of the lawsuit may i say to the court bad faith and filing of the lawsuit sounds like a rule of it i know i said it before but it is not in any of the cases not a single iteration from any cases about filing the lawsuit it is the main maintenance and the maintaining and the continued denial of the fact that mr doherty never intended to sell added the wife if they had found that out for the deposition should they have had the life as a party and then he'd have a good case as well it if elena maybe but then judge cook even said even if you had the wife you're still not going to get it because there's not even a refrigerator note or a sticky that would indicate there was intent to sell the point being is that the plaintiffs maintained a federal cause of action to dovetail and state cause of action to  on that title contact and he did and that t r o subsequently and that's the only remedy get under anyone thirty one anyway so at the end of the day in council the statement about that it was pulled down after twenty four to forty eight hours yes where does that appear in the record in they're going to interrupt it and i just sort of wondered well then why were they still sending notices you know to ms sidmouth eight men a parole and so on web site was shut down the bryants had been dot com was shut down you cannot access it as we said already it's in his deposition yes it is thank you and furthermore if i may add to that judge box is that i'm finished ok that's fine thank you