Marshall & swift/boeckh v. Dewberry & Davis , 586 F. App'x 448 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 09 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARSHALL & SWIFT/BOECKH, LLC, No. 12-57221
Plaintiff - Appellee, D.C. No. 2:08-CV-04375
v.
MEMORANDUM*
DEWBERRY & DAVIS LLC,
Defendant - Appellant,
And
URS CORPORATION,
Defendant.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Submitted December 8, 2014**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.***
Dewberry & Davis LLC (“Dewberry”) appeals the district court’s denial of
attorney’s fees in its favor under § 505 of the Copyright Act. We affirm.
We review an order denying attorney’s fees under the Copyright Act for abuse
of discretion. Halicki Films, LLC v. Sanderson Sales & Mktg, 547 F.3d 1213, 1220
(9th Cir. 2008). Under this standard, we review factual findings for clear error, and
legal conclusions de novo. Love v. Assoc. Newspapers, Ltd., 611 F.3d 601, 614 (9th
Cir. 2010) (citing Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1207 (9th
Cir. 2009)).
The district court did not legally err by failing to accord Dewberry a strong
presumption of entitlement to a fee award. The Copyright Act provides that the court
“may” award a reasonable attorney’s fee to the prevailing party. 17 U.S.C. § 505.
“[A]ttorney’s fees are to be awarded to prevailing parties only as a matter of the
court’s discretion.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). See also
Fantasy, Inc. v. Fogerty, 94 F.3d 553, 555 (9th Cir. 1996) (“[A]n award of attorney’s
fees to a prevailing defendant that furthers the underlying purposes of the Copyright
Act is reposed in the sound discretion of the district courts.”). Considerations that
***
The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
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guide the exercise of that discretion include “(1) the degree of success obtained; (2)
frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party’s
factual and legal arguments; and (5) the need, in particular circumstances, to advance
considerations of compensation and deterrence.” Love, 611 F.3d at 614-15 (citing
Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994)). In applying these factors, a court
should be “faithful to the purposes of the Copyright Act.” Fogerty, 510 U.S. at 534
n.19.
The Seventh Circuit has “refined” the Fogerty standard to add a presumption
that the prevailing party is entitled to an award of fees under § 505, and a strong
presumption if the prevailing party is the defendant. Mostly Memories, Inc. v. For
Your Ease Only, Inc., 526 F.3d 1093, 1099 (7th Cir. 2008) (citing Woodhaven Homes
& Realty, Inc. v. Hotz, 396 F.3d 822, 824-25 (7th Cir. 2005); Assessment Techs. of WI,
LLC v. WIREdata, Inc., 361 F.3d 434, 436-37 (7th Cir. 2004)). Unlike the Seventh
Circuit, we have continued to apply the factors outlined in Fogerty without a
presumption. See, e.g., Love, 611 F.3d at 614-15; Halicki, 547 F.3d at 1230; Fantasy,
94 F.3d at 560. See also Lava Records, LLC v. Amurao, 354 F. App’x 461, 463 (2d
Cir. 2009) (expressly rejecting a presumption in favor of awarding attorney’s fees to
prevailing defendants in copyright cases). The district court’s failure to apply a
presumption is not legal error.
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Neither did the district court legally err by applying a blameworthiness or
culpability standard that was rejected in Fantasy. See Fantasy, 94 F.3d at 558
(“[B]lameworthiness is not a prerequisite to awarding fees to a prevailing defendant.”)
Although the district court introduced its order by noting that there must be some
showing by the prevailing party that the action was brought based on frivolous or
unreasonable grounds, this misstatement was cured when the district court correctly
noted that its discretion to award fees did not require a finding of bad faith or
blameworthiness and thereafter considered each of the factors suggested in Fogerty.
Because the district court did not rest its decision solely on the lack of frivolousness
or unreasonableness, we are satisfied that it applied the correct legal standard in ruling
on Dewberry’s motion for attorney’s fees.
The district court’s findings of fact were not clearly erroneous as they were not
“‘illogical, implausible, or without support in inferences that may be drawn from the
facts in the record.’” Arc of California v. Douglas, 757 F.3d 975, 983-84 (9th Cir.
2014) (quoting M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)). Moreover, the
district court’s failure to embrace Dewberry’s specific arguments and its failure to
weigh the factors in the manner suggested by Dewberry were within the “wide
latitude” granted to district courts in exercising their discretion with respect to the
award of attorney’s fees under § 505. Entm’t Research Grp., Inc. v. Genesis Creative
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Grp., Inc., 122 F.3d 1211, 1229 (9th Cir. 1997); see Fogerty, 510 U.S. at 534 (noting
that “‘[T]here is no precise rule or formula for making [fee] determinations’” in
copyright cases) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). The
district court reasonably exercised its discretion in denying attorney’s fees and
adequately explained its basis for doing so.
AFFIRMED.
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