                                                                              FILED
                            NOT FOR PUBLICATION
                                                                              MAY 11 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


NUTRITION DISTRIBUTION LLC, an                   No.   19-55651
Arizona Limited Liability Company,
                                                 D.C. No.
              Plaintiff-Appellee,                3:16-cv-02328-WQH-BLM

 v.
                                                 MEMORANDUM*
PEP RESEARCH, LLC, DBA
International Peptide, a Texas Limited
Liability Company; FRED REYNDERS,
an individual,

              Defendants-Appellants,

 and

BRIAN REYNDERS, an individual; et al.,

              Defendants.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                              Submitted May 7, 2020**
                                Pasadena, California

Before: MURGUIA and CHRISTEN, Circuit Judges, and HELLERSTEIN,***
District Judge.

      PEP Research, LLC and Fred Reynders (collectively, PEP) prevailed at

summary judgment, defeating Nutrition Distribution LLC’s claim for violation of

the Lanham Act, 15 U.S.C. § 1051 et seq. The district court subsequently denied

PEP’s motion for attorneys’ fees. PEP now appeals only the denial of fees. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. Because the parties

are familiar with the facts, we recite only those necessary to resolve the issues on

appeal.

      The Lanham Act allows a district court to award attorneys’ fees to a

prevailing party only in “exceptional cases.” 15 U.S.C. § 1117(a). Whether a case

is exceptional depends on the totality of the circumstances, considering a number

of nonexclusive factors such as frivolousness, motivation, objective

unreasonableness of the facts or legal theories, and the need to compensate the

prevailing party or deter the losing party. See Octane Fitness, LLC v. ICON Health


      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Alvin K. Hellerstein, United States District Judge for
the Southern District of New York, sitting by designation.
                                           2
& Fitness, Inc., 572 U.S. 545, 554 (2014); SunEarth, Inc. v. Sun Earth Solar

Power Co., 839 F.3d 1179, 1181 (9th Cir. 2016) (en banc) (per curiam).

      The district court did not abuse its discretion by denying PEP’s motion for

attorneys’ fees. See Highmark Inc. v. Allcare Health Mgmt. Sys., Inc., 572 U.S.

559, 563–64 (2014). Although PEP ultimately prevailed at summary judgment, the

district court did not abuse its discretion by determining that the record evidence

did not support the conclusion that Nutrition Distribution brought its claim in bad

faith or with improper motivation. Nor was Nutrition Distribution’s failure to

carry its burden at summary judgment sufficient to indicate that its Lanham Act

claim was frivolous or objectively unreasonable. See, e.g., Seltzer v. Green Day,

Inc., 725 F.3d 1170, 1181 (9th Cir. 2013). Because none of those factors, nor the

totality of the circumstances, indicates that this was an exceptional case, the district

court did not abuse its discretion by declining to award attorneys’ fees to

compensate PEP or deter Nutrition Distribution.

      AFFIRMED.




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