United States Court of Appeals

for the Fifth Circuit

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No. 23-30449

Summary Calendar

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Alexander Ackel, 

Plaintiff—Appellant,

versus

Kayla Lawrence Martynenko, 

Defendant—Appellee.

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Appeal from the United States District Court 

for the Eastern District of Louisiana

USDC No. 2:21-CV-542

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Before Dennis, Engelhardt, and Wilson, Circuit Judges.

Per Curiam:

*

Plaintiff-Appellant Alexander Ackel appeals the district court’s ruling 

denying his motion for attorneys’ fees under Fed. R. Civ. P. 54(d)(2). We 

AFFIRM the district court’s judgment for the reasons it assigned.

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* This opinion is not designated for publication. See 5th Cir. R. 47.5.

United States Court of Appeals

Fifth Circuit

FILED

April 4, 2024

Lyle W. Cayce

Clerk

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Facts and Procedural Background

This case emerges out of the contentious divorce between the 

Plaintiff-Appellant, Alexander Ackel, and the Defendant-Appellee, Kayla 

Martynenko. Following their divorce, Ackel filed this suit alleging that 

Martynenko had accessed several of his electronic accounts without 

authorization, violating (1) the Stored Communications Act, 18 U.S.C. §§ 

2701-2712 (the “SCA”); (2) the Computer Fraud and Abuse Act, 18 U.S.C. 

§ 1030; and (3) Plaintiff’s right to privacy through unreasonable intrusion 

upon his seclusion under Louisiana Law. After trial, a jury found Martynenko 

liable under the SCA and Louisiana law, and awarded Ackel $7,500 for 

economic loss, $1,500 for mental anguish, and $10,000 in punitive damages. 

After the verdict, Ackel moved the district court for $42,113 in 

attorneys’ fees under the SCA, arguing that he was entitled to them as the 

successful party in this action. The district court denied his motion, finding 

that an award of attorneys’ fees was discretionary under the SCA, and that 

Ackel was not entitled to them. The district court cited precedent from both 

in and out of circuit supporting the denial of the fees because Ackel had 

“unclean hands.” Specifically, it found that: 

Ackel litigated in an unbecoming manner, essentially 

commandeering this Court to inappropriately relitigate his 

domestic and custody disputes with his ex-wife. Additionally, 

during the jury trial Ackel repeatedly perjured himself by 

denying all abuse of Martynenko in the face of overwhelming 

evidence. Moreover, nearly every question asked of Ackel 

spawned a recitation of his marital grievances, which revealed 

the true purpose of his lawsuit.

Ackel then appealed, claiming the district court (1) abused its 

discretion when it failed to award him attorneys’ fees, and (2) 

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deprived him of fundamental due process rights when it concluded 

that Ackel committed perjury.

Standard of Review

The award of attorneys’ fees for violations of the SCA is left to 

the district court’s discretion, and we review that decision for an 

abuse of discretion. Domain Prot., L.L.C. v. Sea Wasp, L.L.C., 23 

F.4th 529, 538 (5th Cir. 2022) (“Attorney’s fees are . . . discretionary 

when a plaintiff proves a violation of the Stored Communications 

Act.”); see also Vista Mktg., LLC v. Burkett, 812 F.3d 954, 977 (11th 

Cir. 2016) (holding that under the SCA, “[w]e may reverse a district 

court’s decision to deny attorney’s fees only if we find that the district 

court abused its discretion”). 

Discussion

A. Attorneys’ Fees

The district court did not abuse its discretion when it denied 

Ackel’s motion for attorneys’ fees. “A district court abuses its 

discretion if it bases its decision on an erroneous view of the law or on 

a clearly erroneous assessment of the evidence.” CenterPoint Energy 

Houston Elec. L.L.C. v. Harris Cnty. Toll Rd. Auth., 436 F.3d 541, 550 

(5th Cir. 2006) (quoting Ross v. Marshall, 426 F.3d 745, 763 (5th Cir.

2005)). Ackel argues that the district court’s decision to deny his 

motion “was not an application of the proper legal standards” because 

“the lower court should never have considered the ‘significance’ of 

the harm to Mr. Ackel” and because its reasoning “contradicts the 

findings of the jury awarding actual and punitive damages.”

His argument fails for two reasons. First, Ackel did not cite a 

single case supporting his assertions that the district court’s 

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consideration of the significance of the harm to Ackel was improper, 

or that its reasoning contradicted the jury’s damage awards. Even if 

he did manage to preserve the issue for appeal, we find his briefing 

unconvincing. See Rollins v. Home Depot USA, 8 F.4th 393, 397 (5th 

Cir. 2021) (“A party forfeits an argument . . . by failing to adequately 

brief the argument on appeal.”).

Second, despite Ackel’s claims to the contrary, the district 

court followed our precedent in Domain Protection, when it denied his 

motion. See 23 F.4th at 538. There, we found that when denying a 

motion for attorneys’ fees under the SCA, “[t]he district court 

reasonably exercised [its] discretion in denying fees based on its 

finding that ‘Domain Protection has time and again litigated in an 

unbecoming manner, distorted the record, and misstated the law.’” 

Id. Similarly, here, the district denied Ackel’s request for attorneys’ 

fees because “he litigated in an unbecoming manner” and 

“repeatedly perjured himself by denying all abuse of Martynenko in 

the face of overwhelming evidence.” This was well within the bounds 

of its discretion outlined by Domain Protection.

Further, we find Ackel’s attempts to distinguish Domain 

Protection unavailing. He argues that that this case is distinct because 

in Domain Protection, the plaintiff merely won on liability, whereas the 

jury here awarded him actual and punitive damages. But that is a 

distinction without a difference. In Domain Protection, we upheld the 

district court’s denial of a motion for attorneys’ fees because it based

that decision on findings about the manner in which the plaintiff 

litigated, not the damages award. See Domain Prot., 23 F.4th at 538. So 

too did the district court here when it found that he “litigated in an 

unbecoming manner.” Thus, we find the district court did not abuse 

its discretion when it denied Ackel’s motion for attorneys’ fees. 

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B. Due Process 

Ackel also argues that the district court’s conclusion that he 

committed perjury “violated Mr. Ackel’s fundamental due process 

rights that require ‘notice’ and ‘the opportunity to be heard.’” But 

Ackel fails to provide any support to this base assertion. Because he 

failed to adequately brief this argument, he forfeits it on appeal. See 

Rollins, 8 F.4th at 397. 

Conclusion

For these reasons, the district court’s judgment is 

AFFIRMED.

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