NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_______________
No. 20-3484
_______________
WHOLESALE FIREWORKS, CORP., WHOLESALE FIREWORKS, INC.;
WHOLESALE FIREWORKS III, INC.
v.
WHOLESALE FIREWORKS ENTERPRISES, LLC,
Appellant
_______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. No. 2:20-cv-00796)
District Judge: Honorable Arthur J. Schwab
_______________
Submitted Under Third Circuit L.A.R. 34.1(a)
on October 1, 2021.
Before: AMBRO, KRAUSE, and BIBAS, Circuit Judges
(Filed: October 5, 2021)
_______________
OPINION *
_______________
*
This disposition is not an opinion of the full Court and, under I.O.P. 5.7, is not binding
precedent.
BIBAS, Circuit Judge.
Judicious copying is a tool. It helps busy courts save time and resolve cases quickly.
But the copy may not fit the new case. Here, when the District Court lifted an earlier opin-
ion to resolve a later dispute, it applied the wrong legal test, so we must remand.
Wholesale Fireworks Enterprises sued Wholesale Fireworks Corporation for trademark
infringement. Partway through discovery, the plaintiff decided to end the litigation and
asked the District Court to dismiss without prejudice. The court obliged. The defendant
then filed a motion to reconsider, asking the court to award attorney’s fees as a condition
of the dismissal without prejudice. Instead, the court dismissed with prejudice, yet it re-
fused to award the defendant attorney’s fees. Because the defendant already had “the ben-
efit of a final determination of the controversy,” the court thought it did not need to award
fees to avoid prejudice to the defendant. App. 677–78 (quoting Citizens Sav. Ass’n v. Fran-
ciscus, 120 F.R.D. 22, 24–25 (M.D. Pa. 1988)).
Dissatisfied, the defendant moved for attorney’s fees again, this time under the Lanham
Act. It argued that this trademark case was “exceptional.” 15 U.S.C. § 1117(a). The District
Court denied the motion. In doing so, it copied and pasted its earlier opinion denying fees.
At the end, it tacked on three sentences about the Lanham Act. Though it asserted that this
case is not “exceptional,” it relied entirely on “this Court’s familiarity with this matter.”
App. 4. It offered no analysis or specifics and cited no authorities beyond § 1117.
Now the defendant argues that this was a mistake. We review for abuse of discretion,
“unless … the district court applied the wrong standard, which would be an error of law”
2
requiring de novo review. Securacomm Consulting, Inc. v. Securacom Inc., 224 F.3d 273,
279 (3d Cir. 2000) (internal quotation marks omitted).
The District Court did not apply the right test. Under the Act, it should have considered
whether “there [was] an unusual discrepancy” between the merits of the winning and losing
party’s positions, and whether the losing party “litigated … in an ‘unreasonable manner.’ ”
Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 315 (3d Cir. 2014) (quoting Octane
Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014)). But the court
considered neither. Because it copied and pasted its earlier reasoning, it focused only on
whether a fee award would help to avoid prejudice to the defendant. We will thus vacate
and remand.
3
Wholesale Fireworks Corp v. Wholesale Fireworks Enterprise
Combined Opinion