Shame on You Productions v. Elizabeth Banks

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SHAME ON YOU PRODUCTIONS, INC., No. 16-55024
a California corporation,
Plaintiff-Appellant, D.C. No.
2:14-cv-03512-
v. MMM-JC
ELIZABETH BANKS, an individual;
MAX HANDELMAN, an individual;
STEVEN BRILL, an individual;
BRILLCO, INC., a California
corporation; SIDNEY KIMMEL
ENTERTAINMENT, LLC, a California
limited liability company;
FILMDISTRICT PICTURES, LLC, a
Delaware limited liability company;
LAKESHORE ENTERTAINMENT CORP.,
a Delaware corporation; LAKESHORE
ENTERTAINMENT GROUP, LLC, a
California limited liability company;
FOCUS WORLD, A DIVISION OF FOCUS
FEATURES, LLC, a California
corporation,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
2 SHAME ON YOU PRODUCTIONS V. BANKS
SHAME ON YOU PRODUCTIONS, INC., No. 16-56311
a California corporation,
Plaintiff-Appellant, D.C. No.
2:14-cv-03512-
v. MMM-JC
ELIZABETH BANKS, an individual;
MAX HANDELMAN, an individual; OPINION
STEVEN BRILL, an individual;
BRILLCO INC., a California
corporation; SIDNEY KIMMEL
ENTERTAINMENT, LLC, a California
limited liability company;
FILMDISTRICT PICTURES, LLC;
LAKESHORE ENTERTAINMENT
GROUP, LLC, a California limited
liability company; LAKESHORE
ENTERTAINMENT CORP., a Delaware
corporation; FOCUS WORLD, A
DIVISION OF FOCUS FEATURES, LLC,
a California corporation; BROKEN
ROAD PRODUCTIONS, INC., a
California corporation, as Doe 1;
TODD GARNER, an individual, as Doe
2; DOES 3–10, inclusive,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief District Judge, Presiding
SHAME ON YOU PRODUCTIONS V. BANKS 3
Argued and Submitted April 13, 2018
Pasadena, California
Filed June 21, 2018
Before: MARY M. SCHROEDER, RICHARD R.
CLIFTON, and MILAN D. SMITH, JR., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
SUMMARY *
Copyright / Attorneys’ Fees
The panel affirmed the district court’s orders awarding
attorney’s fees to defendants under 17 U.S.C. § 505
following the dismissal of a copyright infringement claim
concerning the film Walk of Shame.
The panel held that the district court did not abuse its
discretion in awarding attorneys’ fees because the copyright
claim was objectively unreasonable, and other factors,
although mixed, did not combine to outweigh the objective
unreasonableness of the claim under Kirtsaeng v. John Wiley
& Sons, Inc., 136 S. Ct. 1979 (2016). The district court did
not err in holding that the copyright claim and a contract
claim were interrelated and declining to apportion fees.
Further, the district court did not abuse its discretion in
determining the amount of the fees.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
4 SHAME ON YOU PRODUCTIONS V. BANKS
COUNSEL
Charles M. Coate (argued), Abrams Coate LLP, Los
Angeles, California, for Plaintiff-Appellant.
Stephen R. Mick (argued) and Devin Stone, Barnes &
Thornburg LLP, Los Angeles, California, for Defendants-
Appellees.
OPINION
M. SMITH, Circuit Judge:
Plaintiff-Appellant Shame On You Productions (SOYP)
brought an unsuccessful suit for copyright infringement and
breach of implied contract against Defendants-Appellees
(Defendants) associated with the film Walk of Shame,
alleging that it was copied from a screenplay given to two of
the Defendants seven years prior to the film’s release. After
both claims were dismissed, Defendants moved for
attorney’s fees and costs, which the district court granted.
SOYP appeals, arguing that the district court erred in
awarding fees. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendants created and distributed the film Walk of
Shame, which was released in May 2014. In April 2014,
SOYP’s counsel sent two letters to Defendants alleging that
Walk of Shame included many elements copied from a
screenplay titled Darci’s Walk of Shame, which was written
by SOYP president Dan Rosen. The letters alleged that
Rosen’s screenplay was sent to Elizabeth Banks, the star of
Walk of Shame, in 2007, and that Rosen met with Banks and
her husband and producing partner Max Handelman to
SHAME ON YOU PRODUCTIONS V. BANKS 5
discuss the project. According to the letters, Rosen wanted
Banks to star in his movie, but Banks and Handelman never
followed up with Rosen about the project after the meeting.
SOYP’s counsel requested that Defendants produce “all
drafts of the subject screenplay, development notes,
electronic notes or email communications regarding the
same.” When Defendants did not do so, SOYP filed suit on
May 7, 2014, alleging claims for copyright infringement and
breach of implied contract.
Over the following months, a number of discovery
disputes arose between the parties. Before the suit was filed,
counsel for Defendants asked SOYP for a copy of Rosen’s
script, but did not receive it. At a scheduling conference in
September 2014, the court ordered the parties to exchange
screenplays by October 14, 2014. Defendants turned over a
copy of the Walk of Shame script later in October, but despite
repeated requests, SOYP refused to produce Rosen’s script
until Defendants produced all of their drafts, development
notes, and other requested materials. After a further court
order in December, SOYP finally produced Rosen’s script.
During this time period, the parties were unable to resolve
several other discovery disputes, and SOYP filed eight
motions to compel production of documents, which
Defendants moved to strike. A magistrate judge ordered the
parties to meet and confer, which they did telephonically on
January 7, 2015. However, they discussed only two out of
the 271 requests at issue, and did not reach agreement.
SOYP’s counsel terminated the call over Defendants’
counsel’s objection. The magistrate judge denied a further
motion to strike from Defendants and ordered the parties to
meet and confer again, at which point they reached a
stipulated resolution of the issues raised in the motions to
compel.
6 SHAME ON YOU PRODUCTIONS V. BANKS
In February 2015, Defendants filed a motion for
judgment on the pleadings. Along with its opposition to this
motion, SOYP filed an amended complaint that added two
new defendants. The new defendants moved to dismiss the
complaint, and on August 14, 2015, the court granted this
motion and the other Defendants’ motion for judgment on
the pleadings. The court held that as a matter of law there
was no substantial similarity between the two works,
dismissed the federal copyright claim with prejudice, and
dismissed the state law contract claim without prejudice,
declining to exercise supplemental jurisdiction. We
affirmed this merits order in a two-sentence memorandum.
Shame on You Prods., Inc. v. Banks, 690 F. App’x 519 (9th
Cir.), cert. denied, 138 S. Ct. 323 (2017).
In late August 2015, Defendants filed a motion for
attorney’s fees and costs. A hearing on the motion was held
on December 7, 2015, before District Judge Margaret
Morrow, who had adjudicated the merits of the case. Before
the hearing, Judge Morrow issued an unsigned tentative
order awarding Defendants $314,669.75 in fees and
$3,825.15 in costs, and after the hearing she issued a minute
order stating that Defendants’ motion was granted in part
and denied in part, and that a final order would issue.
However, Judge Morrow retired from the bench the
following month without issuing a final order fixing the
amount of attorney’s fees. In July 2016, Defendants
requested a final order. The case then came before Chief
Judge Virginia Phillips, who issued a final order on August
14, 2016, that awarded Defendants the same amount in fees
SHAME ON YOU PRODUCTIONS V. BANKS 7
as Judge Morrow’s earlier tentative order. SOYP timely
appealed. 1
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. “We
review a district court’s decision regarding the award of
attorneys’ fees under the Copyright Act for an abuse of
discretion.” Wall Data Inc. v. L.A. Cty. Sheriff’s Dep’t,
447 F.3d 769, 787 (9th Cir. 2006).
ANALYSIS
I. Defendants’ Entitlement to Fees
Pursuant to 17 U.S.C. § 505, a district court has
discretion to award full costs and reasonable attorney’s fees
to the prevailing party in a copyright action. In 1994, the
Supreme Court approved of “several nonexclusive factors
that courts should consider in making awards of attorney’s
fees” pursuant to § 505. These factors included
“‘frivolousness, motivation, objective unreasonableness
(both in the factual and in the legal components of the case)
and the need in particular circumstances to advance
considerations of compensation and deterrence’ . . . so long
as such factors are faithful to the purposes of the Copyright
Act.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19
(1994) (quoting Lieb v. Topstone Indus., Inc., 788 F.2d 151,
156 (3rd Cir. 1986)). In 2016, the Court, “seeing a need for
some additional guidance respecting the application of
§ 505,” emphasized that a court should “giv[e] substantial
weight to the reasonableness of [the losing party’s] litigating
1
SOYP separately appealed from Judge Morrow’s December 7
order. We consolidated that appeal with the appeal from Judge Phillips’s
August 14 final order.
8 SHAME ON YOU PRODUCTIONS V. BANKS
position, but also tak[e] into account all other relevant
factors.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct.
1979, 1985, 1989 (2016).
SOYP argues that Judge Phillips’s decision, which was
issued about two months after Kirtsaeng was handed down,
improperly failed to take that opinion into account, and did
not cite it. However, Kirtsaeng did not effect a significant
change in the law, and we have upheld pre-Kirtsaeng
decisions on the basis that Kirtsaeng did not require a
different result. See Williams v. Gaye, 885 F.3d 1150, 1177
(9th Cir. 2018); Choyce v. SF Bay Area Indep. Media Ctr.,
669 F. App’x 863 (9th Cir. 2016). Prior to Kirtsaeng, Ninth
Circuit case law held that
A district court may consider (but is not
limited to) five factors in making an
attorneys’ fees determination pursuant to
§ 505. These factors are (1) the degree of
success obtained, (2) frivolousness,
(3) motivation, (4) reasonableness of losing
party’s legal and factual arguments, and
(5) the need to advance considerations of
compensation and deterrence.
Wall Data Inc., 447 F.3d at 787. After Kirtsaeng, district
courts should continue to consider the same factors, but
accord substantial weight to the fourth factor. 136 S. Ct. at
1989.
A. Objective unreasonableness
When a court weighs whether to grant attorney’s fees, a
legal argument that loses is not necessarily unreasonable.
See, e.g., VMG Salsoul, LLC v. Ciccone, 824 F.3d 871, 887
(9th Cir. 2016); Seltzer v. Green Day, Inc., 725 F.3d 1170,
SHAME ON YOU PRODUCTIONS V. BANKS 9
1181 (9th Cir. 2013). In this case, the district court based its
determination that SOYP’s claim was objectively
unreasonable on the distinct lack of similarity between the
two works. SOYP alleged facts suggesting that at least some
of the Defendants had direct access to Rosen’s screenplay,
so substantial similarity was the remaining crucial element
for its claim. See Williams, 885 F.3d at 1163; Three Boys
Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000).
The district court’s merits order summarized the plot of
both screenplays. See Shame on You Prods., Inc. v. Banks,
120 F. Supp. 3d 1123, 1133–40 (C.D. Cal. 2015), aff’d,
690 F. App’x 519 (9th Cir. 2017), cert. denied, 138 S. Ct.
323 (2017). In finding them not to be substantially similar,
the court held that the concept of a “walk of shame,” upon
which both plots are based, “is not itself protectable.” Id. at
1151. It held that many of the similarities that SOYP
alleged, such as the main character losing her cell phone and
wallet, were “[s]cenes-à-faire, or situations and incidents
that flow necessarily or naturally from a basic plot premise,
[which] cannot sustain a finding of infringement.” Id. at
1148 (first alteration in original) (quoting Cavalier v.
Random House, Inc., 297 F.3d 815, 823 (9th Cir. 2002)); see
id. at 1151. Other alleged similarities were, upon closer
inspection, not so similar: while acknowledging that “both
lead characters make it to an important event,” the district
court noted that the important events are very different. Id.
at 1152. “In Darci’s Walk of Shame, the important event is
a farewell brunch at the Four Seasons Maui following the
wedding of Darci’s sister. In Walk of Shame, the event is a
morning news broadcast [in Los Angeles] Meghan must
anchor to secure her ‘dream job.’” Id. The district court did
note several similarities between the two films, such as the
fact that “[b]oth lead characters have recently separated from
ex-boyfriends” and “[i]n both [works], the lead character is
10 SHAME ON YOU PRODUCTIONS V. BANKS
flown to her final destination by helicopter.” Id. at 1152–53.
Overall, however, the court held that “the two works at issue
tell fundamentally different stories” with different plots,
themes, dialogues, moods, settings, paces, and characters.
Id. at 1151–68. There was “virtually no overlap in
dialogue.” id. at 1156, and “the only similarities between the
characters . . . are abstract and generalized,” id. at 1168.
The district court did not find the substantial similarity
issue to be close. It found that the two screenplays had only
isolated plot elements in common, and that in all other
regards they differed markedly. SOYP argues that this
finding was “inherently subjective,” and while its claim may
have been incorrect as a matter of law, it could not have been
unreasonable to perceive the two screenplays as similar.
“We employ a two-part analysis in this circuit—an extrinsic
test and an intrinsic test—to determine whether two works
are substantially similar.” Cavalier, 297 F.3d at 822. “The
‘extrinsic test’ is an objective comparison of specific
expressive elements,” whereas “[t]he ‘intrinsic test’ is a
subjective comparison that focuses on ‘whether the ordinary,
reasonable audience’ would find the works substantially
similar in the ‘total concept and feel of the works.’” Id.
(quoting Kouf v. Walt Disney Pictures & Television, 16 F.3d
1042, 1045 (9th Cir. 1994)). The district court recognized in
its merits order that “[i]f plaintiff satisfies the extrinsic test,
the intrinsic test’s subjective inquiry must be left to the jury
and [any dispositive motion] must be denied.” Shame on
You Prods., Inc., 120 F. Supp. 3d at 1148–49 (alterations in
original) (quoting Smith v. Jackson, 84 F.3d 1213, 1218 (9th
Cir. 1996)). Accordingly, the district court’s holding that
the two works were not substantially similar was based
entirely on the objective extrinsic test, and not on the
subjective intrinsic test. Because this test is objective,
SOYP’s subjective beliefs regarding its outcome are no more
SHAME ON YOU PRODUCTIONS V. BANKS 11
relevant to the reasonableness determination than a party’s
subjective belief regarding any other legal test.
B. Remaining factors
Under Kirtsaeng, a district court must give “substantial
weight” to the reasonableness of SOYP’s litigating position,
but it also takes into account the other factors identified in
our case law. 136 S. Ct. at 1989. These factors, although
mixed, do not combine to outweigh the objective
unreasonableness of SOYP’s claim.
SOYP concedes that the “degree of success” factor
favors Defendants, but it argues that their success was only
partial because, while the federal copyright claim was
dismissed with prejudice, the state law implied contract
claim was dismissed without prejudice, and has in fact been
refiled in state court. The focus in the fees determination is
whether “successful prosecution or successful defense of the
action furthers the purposes of the Copyright Act.” Perfect
10, Inc. v. CCBill LLC, 488 F.3d 1102, 1120 (9th Cir. 2007).
Accordingly, the district court did not abuse its discretion in
placing greater emphasis on the outcome of the Copyright
Act claim.
The district court also found that SOYP acted in bad
faith, in part because of its long delay in turning over a copy
of Rosen’s screenplay. Defendants requested to see the
screenplay before the complaint was filed, but SOYP neither
provided a copy nor attached one to the complaint, which
extensively referenced the script. 2 After the complaint was
2
The district court relied on both screenplays as well as the finished
film of Walk of Shame in deciding the motions to dismiss and for
judgment on the pleadings because it held that the complaint
12 SHAME ON YOU PRODUCTIONS V. BANKS
filed, SOYP stated that it would produce the script with its
initial disclosures as required by Federal Rule of Civil
Procedure 26(a)(1)(A)(ii), but it did not do so. Finally,
SOYP disobeyed a court order to produce the script, forcing
Defendants to seek another court order requiring the same
thing. The court also noted SOYP’s obstructionist conduct
during discovery and failure to confer in good faith, which
“raise[] an inference that its primary motivation was not
receipt of the documents in question, but rather draining
Defendants’ resources in order to force a settlement.”
Defendants charged below and argue on appeal that SOYP
knew its claim was meritless and attempted to drag out the
litigation as long as possible in order to obtain a nuisance-
value settlement. The district court held there was evidence
to support this view and that this factor weighed in favor of
a fee award.
SOYP argues, however, that Defendants cannot
complain they lacked access to the screenplay because they
were in possession of it since 2007. On July 31, 2007, Banks
was emailed a copy of the screenplay. The district court
surmised that Banks may not have remembered that she
received the script in an email seven years prior to this suit,
but the initial letter sent by SOYP’s counsel to Defendants
(including Banks) included this allegation, and Banks
retained the script in her email. Furthermore, before SOYP
produced the screenplay, Defendants’ counsel at one point
referred in open court to the fact that Darci’s Walk of Shame
is set in Hawaii, a fact that had not been alleged in the
complaint. While Defendants’ possession of Rosen’s
screenplay does not excuse SOYP’s failure to obey Rule
26(a)(1)(A)(ii) and a court order or its refusal to confer in
incorporated these works by reference, even though they were not
attached. Shame on You Prods., Inc., 120 F. Supp. 3d at 1144–45.
SHAME ON YOU PRODUCTIONS V. BANKS 13
good faith, it does call into question the idea that SOYP’s
tactics were purely dilatory and intended to stave off
adjudication of what it knew to be a meritless claim. Overall,
although the evidence of bad faith is not conclusive, the
district court did not abuse its discretion in finding that the
factor nonetheless weighed in favor of Defendants.
The district court also held that the factor of deterrence
weighed in favor of an award of fees to Defendants. It
acknowledged that Defendants had not demonstrated a need
for specific deterrence, as there was no evidence that SOYP
or Rosen had filed baseless or frivolous claims in the past,
but held that the purpose of general deterrence would be
served by awarding fees against a party who had litigated an
objectively unreasonable claim, or who had brought a claim
in bad faith. In similar cases, we have held that this
reasoning does not constitute an abuse of discretion. See,
e.g., Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038,
1042–43 (9th Cir. 2014).
Finally, the district court held that the overall goals of the
Copyright Act would be served by a fee award because it
would “reward artists and others who defend against
meritless claims, and [would] encourage artists to continue
producing original works without fear of having to defend
against baseless claims.” This generic reasoning might be in
tension with the Supreme Court’s repeated admonition that
“a district court may not ‘award[] attorney’s fees as a matter
of course’” to a prevailing party. Kirtsaeng, 136 S. Ct. at
1985 (alteration in original) (quoting Fogerty, 510 U.S. at
533). The district court did not quite award fees “as a matter
of course,” but it did justify its fee award partly by pointing
to reasoning that could be broadly applied to most copyright
cases in which a defendant prevails. As discussed below, the
balance of factors does not demonstrate that the district court
14 SHAME ON YOU PRODUCTIONS V. BANKS
abused its discretion in determining that Defendants were
entitled to fees, regardless of the validity of its reasoning
with regard to the overall goals of the Copyright Act. As
such, we need not resolve the question raised by the district
court’s determination that a fee award would further the
goals of the Copyright Act.
The district court also placed weight on the fact that
Defendants’ successful defense “nudged copyright law in
the direction of ‘free expression’ by appealing to basic
principles about the unprotectability of ideas, instead of
relying on ‘technical defense[s], such as the statute of
limitations, laches, or the copyright registration
requirements.” In Kirtsaeng, the Supreme Court expressed
skepticism about relying on a lawsuit’s impact on the law in
determining a fee award; this factor’s incentive effect on
litigants is uncertain, and it is less easily administrable than
other factors. 136 S. Ct. at 1987–88. However, the Court
did not explicitly bar district courts from considering a suit’s
impact on copyright law. We need not decide whether the
district court erred in taking this factor into account, as the
outcome is the same either way.
Overall, the district court did not abuse its discretion in
weighing the remaining factors, which together do not
outweigh the objective unreasonableness of SOYP’s
litigating position. The district court therefore did not abuse
its discretion in determining that Defendants were entitled to
fees.
II. SOYP’s State Law Claim
“Controlling precedent establishes ‘that a party entitled
to attorney’s fees as a prevailing party on a particular
[copyright] claim, but not on other claims in the same
lawsuit, can only recover attorney’s fees incurred in
SHAME ON YOU PRODUCTIONS V. BANKS 15
defending against that one claim or any ‘related claims.’”
Traditional Cat Ass’n, Inc. v. Gilbreath, 340 F.3d 829, 833
(9th Cir. 2003) (quoting Entm’t Research Grp., Inc. v.
Genesis Creative Grp., Inc., 122 F.3d 1211, 1230 (9th Cir.
1997)). “To determine whether the claims are related, the
district court should focus on whether the claims on which
[the party] did not prevail ‘involve a common core of facts
or are based on related legal theories.’” Thomas v. City of
Tacoma, 410 F.3d 644, 649 (9th Cir. 2005) (quoting Webb
v. Sloan, 330 F.3d 1158, 1168 (9th Cir. 2003)).
SOYP’s breach of implied contract claim, which was not
adjudicated on the merits, was nevertheless based on the
allegation that Defendants agreed to pay for Rosen’s script
if they decided to use it. Like the copyright claim, the
contract claim therefore turned on whether or not Defendants
had copied Darci’s Walk of Shame to make Walk of Shame.
Furthermore, as the district court noted, SOYP itself
conceded that “[t]he vast majority of this case including
discovery concerned both of [p]laintiff’s claims equally, in
that the copyright infringement and contractual claim arose
out of the same set of facts and circumstances.” Since the
copyright and contract claims involve a common core of
facts and are based on related legal theories, the district court
did not err in holding the claims interrelated and declining to
apportion fees.
III. The Size of the Fee Award
SOYP’s arguments against the reasonableness of
Defendants’ fee award include some of the same objections
it made below. These objections were addressed by the
district court, and SOYP offers no new arguments against
the district court’s thorough resolution of those objections.
16 SHAME ON YOU PRODUCTIONS V. BANKS
First, SOYP objects to the award of fees for 136.5 hours
of time entries that contained redactions. We have held that
such redactions in time entries to preserve secrecy of work
product are permissible as long as they “do not impair the
ability of the court to judge whether the work was an
appropriate basis for fees.” Democratic Party of Wash. State
v. Reed, 388 F.3d 1281, 1286 (9th Cir. 2004). In this case,
the district court found that “some of the billing entries have
been so heavily redacted that it [could not] assess the
reasonableness of the time expended,” identified nine such
entries, and accordingly deducted 4.2 hours from the fee
award. SOYP has not shown that the district court abused
its discretion in deducting only 4.2 of the requested 136.5
hours.
Second, SOYP objects to fees Defendants requested for
preparation of responses to SOYP’s discovery requests. The
district court agreed with SOYP that the number of hours
claimed was unreasonable in light of the “boilerplate
objections” that were copied and pasted into all responses.
It held that “Defendants spent approximately twice as long
preparing the responses as was reasonable” and deducted
50% of the claimed hours. SOYP neither acknowledges this
50% deduction nor provides any argument that it was
insufficient. Accordingly, it has not shown that the district
court abused its discretion.
Third, SOYP objects to several categories of hours
Defendants expended in connection with their oppositions to
SOYP’s motions to compel discovery and for sanctions and,
after those motions were granted in part, on preparation of
supplemental responses and production of documents.
SOYP’s primary arguments are that none of these hours
would have been necessary if Defendants had “properly
complied with their discovery obligations at the outset,” and
SHAME ON YOU PRODUCTIONS V. BANKS 17
that SOYP “effectively prevailed” on its motions to compel
despite Defendants’ opposition. The district court rejected
these objections because even losing motions may be
compensable, see Cabrales v. County of Los Angeles,
935 F.2d 1050, 1052–53 (9th Cir. 1991), and furthermore
Defendants’ oppositions did not entirely lose: the motions to
compel were granted only in part. The district court did not
abuse its discretion in holding that these hours contributed to
Defendants’ success and were therefore reasonable and
compensable.
Finally, SOYP argues that the hourly rates claimed by
defendants’ attorneys and paralegals were excessive or
unjustified. The district court examined each claimed hourly
rate, compared it to rates deemed reasonable by other courts
in other cases, and found the rates charged by one partner
and two associates to be reasonable. However, it declined to
award fees for work performed by two other attorneys which
was not sufficiently justified, and it found two of the three
paralegals’ claimed hourly rates to be excessive, reducing
them to $250 each. SOYP neither acknowledges nor attacks
the district court’s careful resolution of these issues.
Accordingly, it has not shown that the district court abused
its discretion.
IV. Timeliness of Defendants’ Motion for Fees and
Costs
In general, motions for attorney’s fees must be filed with
the court no later than fourteen days after entry of judgment.
Fed. R. Civ. P. 54(d)(2)(B)(i). The final judgment in this
case was entered on August 14, 2014, and SOYP argues that
the motion for fees and costs was not filed until August 31,
after the fourteen-day deadline had elapsed. However,
Defendants’ motion was first filed on August 28, within the
deadline. On the next business day, August 31, the clerk
18 SHAME ON YOU PRODUCTIONS V. BANKS
struck that filing and instructed Defendants to refile the
motion under the correct e-filing categories, which they did
later that day.
We have repeatedly held that the fourteen-day deadline
under Rule 54 “is not jurisdictional.” Perfect 10, Inc. v.
Giganews, Inc., 847 F.3d 657, 676 (9th Cir.) (quoting Kona
Enters., Inc. v. Estate of Bishop, 229 F.3d 877, 889–90 (9th
Cir. 2000)), cert. denied, 138 S. Ct. 504 (2017). Because
any defect was not jurisdictional, SOYP has forfeited this
claim by failing to raise it below. See Orr v. Plumb, 884 F.3d
923, 932 (9th Cir. 2018).
CONCLUSION
For the foregoing reasons, the district court’s judgment
is affirmed. SOYP shall bear costs on appeal. Fed. R. App.
P. 39(a)(2).
AFFIRMED.