Jonna Markets Llc, a Michigan limited liability company v. Makini Howell, an individual; QUICKIE STORES, INC., a Washington corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JONNA MARKETS LLC, a Michigan
limited liability company,
Plaintiff-Appellee,
v.
MAKINI HOWELL, an individual;
QUICKIE STORES, INC., a Washington
corporation,
Defendants-Appellants.
No. 20-35621
D.C. No. 2:20-cv-00351-TSZ
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted June 7, 2021**
Seattle, Washington
Before: GOULD, CLIFTON, and MILLER, Circuit Judges.
Defendants-Appellants Makini Howell and Quickie Stores, Inc. appeal from
the district court’s denial of their motion for attorneys’ fees and costs. We have
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JUN 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction. 28 U.S.C. § 1291. We review the district court’s decision not to
award attorneys’ fees for an abuse of discretion, see Berkla v. Corel Corp., 302
F.3d 909, 917 (9th Cir. 2002), and its application of the law and analysis of the
relevant contractual language de novo, Miller v. Safeco Title Ins. Co., 758 F.2d
364, 367 (9th Cir. 1985). We affirm.
The district court correctly applied Washington law. See Cornish Coll. of
the Arts v. 1000 Va. Ltd. P’ship, 242 P.3d 1, 16 (Wash. Ct. App. 2010); Escude v.
King Cnty. Pub. Hosp. Dist. No. 2, 69 P.3d 895, 900 (Wash. Ct. App. 2003); Walji
v. Candyco, Inc., 787 P.2d 946, 949 (Wash. Ct. App. 1990). Contrary to
Defendants’ contentions, Walji did not hold that a trial court does not have
discretion to deny a defendant attorneys’ fees after a plaintiff voluntarily dismisses
its suit, but rather highlighted the court’s discretion and emphasized the court’s
need to consider the particular circumstances of each case. 787 P.2d at 949 (“The
decision as to whether a particular voluntary nonsuit should trigger attorney fees
should be left to the discretion of the trial judge in light of the circumstances of the
particular case, whether interpreting a contract clause or a statute.”). Even if there
is a presumption that a defendant has prevailed when a plaintiff voluntarily
dismisses its suit, see Wachovia SBA Lending, Inc. v. Kraft, 200 P.3d 683, 687
(Wash. 2009), a trial court has discretion in making a determination that is contrary
to that general presumption, see Walji, 787 P.2d at 949.

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The district court did not abuse that discretion here. See United States v.
Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc) (district court abuses
its discretion if the application of the correct legal standard was illogical,
implausible, or without support in inferences that may be drawn from the facts in
the record). Jonna Markets LLC voluntarily dismissed its complaint without
prejudice less than a week after Defendants were served, before Defendants filed a
notice of appearance or any responsive pleading or motions, and prior to a
scheduling conference and submission of a joint status report. The effect, context,
and timing of the voluntary dismissal supported the denial of fees, as the district
court concluded that Defendants were not a prevailing party given that the case
was dismissed without prejudice at such an early stage and that the parties
continued to litigate their dispute in front of the Trademark Trial and Appeal
Board. See 4105 1st Ave. S. Invs., LLC v. Green Depot WA Pac. Coast, LLC, 321
P.3d 254, 258 (Wash. Ct. App. 2014) (affirming denial of attorneys’ fees where
there was contractually similar language and a voluntary dismissal occurred when
the litigation had progressed further than it did here). Although Defendants might
have had an argument for an award based on additional fees incurred by the detour
through the district court, their request pursued a much larger amount as if they had
prevailed on the merits, which they had not. The district court acted within its
discretion when it denied the motion.

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AFFIRMED.

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