NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 1 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

H.I.S.C, INC.; DEPALMA ENTERPRISES, No. 20-56240

INC.,

D.C. No. Plaintiffs-counter- 3:16-cv-00480-BEN-WVG defendants-Appellants,

v. MEMORANDUM*

MARIA RAJANAYAGAM,

Defendant-Appellee,

FRANMAR INTERNATIONAL

IMPORTERS, LTD.,

Defendant-counter-claimant- Appellee.

Appeal from the United States District Court for the Southern District of California Roger T. Benitez, District Judge, Presiding

Argued and Submitted November 19, 2021 Pasadena, California

Before: WARDLAW and HURWITZ, Circuit Judges, and BOUGH,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Stephen R. Bough, United States District Judge for the Western District of Missouri, sitting by designation. H.I.S.C., Inc. and DePalma Enterprises, Inc. (“Appellants”) appeal a district

court order granting attorneys’ fees to Franmar International, Ltd. and Maria

Rajanayagam (“Appellees”). We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm.

1. While “a court is generally precluded from reconsidering an issue

previously decided by the same court, or a higher court in the identical case,”

Milgard Tempering, Inc. v. Selas Corp. of Am., 902 F.2d 703, 715 (9th Cir. 1990),

the district court correctly determined that our conclusion in the first appeal that

this case was not exceptional for purposes an award of attorneys’ fees and costs on

appeal was not the law of the case as to whether the case was exceptional for

purposes of assessing attorneys’ fees and costs for the five-year span of litigation

before it. See SunEarth, Inc. v. Sun Earth Solar Power Co., Ltd., 839 F.3d 1179,

1181 (9th Cir. 2016).

2. The district court’s determination that this was an exceptional case under

15 U.S.C. § 1117(a) was not an abuse of discretion. After examining the “‘totality

of the circumstances’ to determine if the case was exceptional,” id. at 1181 (citing

Octane Fitness, LLC v. ICON Health & Fitness, Inc., 572 U.S. 545, 554 (2014)),

the district court determined that this was “an ‘exceptional’ case . . . that stands out

from others with respect to the substantive strength of [the] party’s litigating

position . . . or the unreasonable manner in which the case was litigated.” Octane

2 Fitness, 572 U.S. at 554.

“District courts may determine whether a case is ‘exceptional’ in the case-

by-case exercise of their discretion . . . .” Id. at 545. The district court found

Appellants’ conduct in this case to be “severe” and demonstrative of “an

unreasonable litigating position.” Because there is a “reasonable basis” for the

district court’s ruling and it “has [not] applied the wrong test or standard in

reaching its result,” Graham-Sult v. Clainos, 756 F.3d 724, 751 (9th Cir. 2014)

(citation omitted), we AFFIRM.

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