                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             AUG 26 2011

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DREAM GAMES OF ARIZONA, INC.                     No. 10-16336
and AMERICAN SOFTWARE
DEVELOPMENT COMPANY, INC.,                       D.C. No. 2:03-cv-00433-ROS

              Plaintiffs - Appellees,
                                                 MEMORANDUM*
  v.

 PC ONSITE and CASEY HAGON,

              Defendants - Appellants,

  and

GARLAND PIERCE,

              Defendant,

  v.

PAUL PEREZ,

              Third-party-defendant -
Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                 Roslyn O. Silver, Chief District Judge, Presiding

                           Submitted August 23, 2011**

Before: CANBY and WARDLAW, Circuit Judges, and MILLS, Senior District
Judge.***

      PC Onsite appeals the district court’s denial of its motion under Federal Rule

of Civil Procedure 60(b) seeking reconsideration of the court’s decision awarding

attorney fees to Dream Games of Arizona. We have jurisdiction pursuant to 28

U.S.C. § 1291, and we affirm.

      PC Onsite sought reconsideration on the ground that the attorney fee award

was void under Rule 60(b)(4), but this provision “applies only in the rare instance

where a judgment is premised either on a certain type of jurisdictional error or on a

violation of due process that deprives a party of notice or the opportunity to be

heard.” United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).

PC Onsite does not assert any due process violation. Its only jurisdictional

argument is that the district court erred by awarding attorney fees in the absence of

an explicit jury finding that PC Onsite commenced infringement after Dream

Games registered for copyright protection on November 27, 2002. The Copyright

        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
                                          2
Act, 17 U.S.C. § 412, “precludes an award of attorneys’ fees if the copyrighted

work is not registered prior to the commencement of the infringement, unless the

registration is made within three months after the first publication of the work.”

Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 701-02 (9th Cir. 2008).

      However, this requirement of § 412 is “a precondition to obtaining a [form

of relief], not a limitation on the [district] court’s jurisdiction.” Espinosa, 130 S.

Ct. at 1378; see also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1247

(2010). PC Onsite’s reliance on Stenswick v. Bowen, 815 F.2d 519, 521 (9th Cir.

1987), is misplaced, as there the court determined that a magistrate judge lacked

jurisdiction to award attorney fees for work performed in an administrative Social

Security proceeding because a statute expressly reserved such authority for the

Secretary of Health and Human Services. The Supreme Court has recently held

that the other case on which PC Onsite relies, United States v. Walker, 109 U.S.

258 (1883), is no longer controlling because it predated the enactment of Rule

60(b)(4). See Espinosa, 130 S. Ct. at 1379 n.12. Because the judgment is not void

due to a jurisdictional error, the district court did not abuse its discretion in denying

PC Onsite’s Rule 60(b)(4) motion.

      Alternatively, the district court did not abuse its discretion in denying PC

Onsite’s motion because the jury made a finding on the timing of the infringement.


                                           3
The jury was instructed: “If you find that . . . defendants began to engage in

copyright infringement before November 27, 2002, then you may not award

statutory damages to Dream Games.” “‘The law presumes that jurors carefully

follow the instructions given to them,’ and there is nothing to suggest that they

failed to do so here.” Caudle v. Bristow Optical Co., 224 F.3d 1014, 1023 (9th Cir.

2000) (quoting Wade v. Calderon, 29 F.3d 1312, 1321 (9th Cir. 1994)) (citation

omitted). In its special verdict the jury specifically found that plaintiffs were

entitled to statutory damages. The jury thus implicitly found that infringement

commenced following registration.

      AFFIRMED.




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