                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                          FILED
                           FOR THE NINTH CIRCUIT
                                                                           OCT 20 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
DIONNE CHOYCE, an individual,                   No.    14-17318

             Plaintiff-Appellant,               D.C. No. 3:13-cv-01842-JST

 v.
                                                MEMORANDUM*
SF BAY AREA INDEPENDENT MEDIA
CENTER, AKA IMC, SF Bay Area, AKA
SF Bay Area IMC, an unincorporated
association; et al.,

             Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Northern District of California
                     Jon S. Tigar, District Judge, Presiding

                           Submitted October 17, 2016**
                             San Francisco, California

Before: HAWKINS, CALLAHAN, and HURWITZ, Circuit Judges.

      In this copyright infringement action, Dionne Choyce (“Choyce”) appeals the

attorneys’ fee award to Layer 42.net, Inc. and SF Bay Area Independent Media Center

      *
             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).
(collectively, “Appellees”). Choyce contends the court abused its discretion by

awarding fees under 17 U.S.C. § 505 and that the amount of the award was also

unreasonable. We affirm.

      There was no abuse of discretion in determining that Appellees were entitled

to an attorney fee award pursuant to 17 U.S.C. § 505. The district court carefully

considered the relevant factors under Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19

(1994), and articulated numerous valid reasons for exercising its discretion to award

fees, including the success obtained, the frivolousness of Choyce’s claim, and the

considerations of deterring future baseless claims and compensation for having to

defend against them. See Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1043

(9th Cir. 2014).   The district court gave “substantial weight” to the objective

reasonableness of Choyce’s position but did not rely exclusively on it, and thus the

Supreme Court’s recent decision in Kirtsaeng v. John Wiley & Sons, Inc. does not

require a different result. 136 S. Ct. 1979, 1989 (2016).

      Nor was there an abuse of discretion in the amount of fees awarded. Appellees

submitted some evidence to support the prevailing market rate in the community, and

Choyce presented no evidence in rebuttal that the rates sought were not within the

range customarily charged by similarly experienced attorneys in the area. See Hiken

v. Dep’t of Def., — F.3d —, 2016 WL 4608147, at *7 (9th Cir. Sept. 6, 2016). The


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district court recognized the amounts requested by Appellees may not have been

sufficiently limited to the federal copyright claim and reduced the award by 25%

accordingly, which is a reasonable approximation of the time spent on the copyright

claim.    See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“Where the

documentation of hours is inadequate, the district court may reduce the award

accordingly.”). Finally, Appellees may permissibly recover fees expended in order

to establish their entitlement to and the amount of fees under § 505. See Fantasy, Inc.

v. Fogerty, 94 F.3d 553, 561 (9th Cir. 1996); see also Camacho v. Bridgeport Fin.,

Inc., 523 F.3d 973, 981 (9th Cir. 2008). We grant Appellees’ requests for fees on

appeal and refer the determination of an appropriate amount of fees and costs to the

Appellate Commissioner.

         AFFIRMED.




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