NOT FOR PUBLICATION FILED

JUN 16 2021

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JONNA MARKETS LLC, a Michigan No. 20-35621 limited liability company, D.C. No. 2:20-cv-00351-TSZ Plaintiff-Appellee,

v. MEMORANDUM*

MAKINI HOWELL, an individual; QUICKIE STORES, INC., a Washington corporation,

Defendants-Appellants.

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). 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. 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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