                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 29 2016

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



                           FOR THE NINTH CIRCUIT


In the Matter of: BASHAS’ INC.,                  No. 13-16414

              Debtor,                            D.C. No. 2:12-cv-01497-FJM


ROBERT KUBICEK ARCHITECTS &                      MEMORANDUM*
ASSOCIATES, INCORPORATED,

              Plaintiff - Appellant,

 v.

BASHAS’ INCORPORATED,

              Defendant - Appellee.



In the Matter of: BASHAS’ INC.,                  No. 13-17061

              Debtor,                            D.C. No. 2:12-cv-01497-FJM


ROBERT KUBICEK ARCHITECTS &
ASSOCIATES, INCORPORATED,

              Plaintiff - Appellant,

 v.

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
                                                                                page 2

BASHAS’ INCORPORATED,

               Defendant - Appellee.


                    Appeals from the United States District Court
                              for the District of Arizona
                Frederick J. Martone, Senior District Judge, Presiding

                           Submitted December 9, 2015**
                             San Francisco, California

Before:        KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.


      1. The district court didn’t err in dismissing Robert Kubicek Architects &

Associates, Inc.’s (“RKAA”) copyright infringement claims. Given the jury

verdict in favor of The Bosley Group, Inc. (“TBG”), the issues presented in

RKAA’s claims against Bashas’ for contributory infringement and vicarious

liability are precluded. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.

1988). Further, the district court in the Bosley case found that RKAA had failed to

present any “evidence of direct infringement by Bashas’,” and thus granted

summary judgment to TBG on RKAA’s contributory infringement claim against

TBG. RKAA didn’t challenge this ruling, therefore the issue of direct



          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                  page 3
infringement by Bashas’ is also precluded. Id. at 322. Because all of RKAA’s

claims under the Copyright Act fail, its request for injunctive relief under 17

U.S.C. §§ 502 & 503 also fails.

      The issues raised by RKAA’s state-law unjust enrichment and conversion

claims, however, aren’t precluded. The bankruptcy court discharged all pre-

petition unjust enrichment claims because they were claims seeking a “right to

payment.” 11 U.S.C. § 101(5). Thus, the district court correctly dismissed the

unjust enrichment claim because there are “no allegations that would support a

claim for post-petition infringement.” See Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007). But RKAA’s conversion claim is not a “claim” under Chapter 11

because it doesn’t seek a “right to payment” or an “equitable remedy” giving “rise

to a right to payment.” 11 U.S.C. § 101(5). Therefore, the bankruptcy court

couldn’t have discharged this claim under 11 U.S.C. § 1141(d). We thus reverse

the district court’s dismissal of the conversion claim and remand for further

proceedings. On remand, the district court shall determine whether to exercise

supplemental jurisdiction over this state-law claim. 28 U.S.C. § 1367(c).


      2. The district court didn’t abuse its discretion in denying RKAA’s motion

to reconsider its ruling on the Copyright Act and unjust enrichment claims. The
                                                                                  page 4
dismissal was neither clearly erroneous nor manifestly unjust, and RKAA didn’t

present “newly discovered evidence.” Smith v. Clark Cty. Sch. Dist., 727 F.3d

950, 955 (9th Cir. 2013). The evidence RKAA did present wasn’t “new” because

it could have been discovered with “reasonable diligence.” Fed. R. Civ. P.

60(b)(2).


      3. The district court’s award of attorneys’ fees wasn’t “based on an

inaccurate view” of the Lieb factors. Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556

(9th Cir. 1996). The Lieb factors “are not exclusive and need not all be met.” Id.

at 558. Further, the district court’s finding of objective unreasonableness wasn’t

clearly erroneous. Therefore, the court didn’t abuse its discretion in granting

attorneys’ fees. See id. at 556.


      4. We award Bashas’ the attorneys’ fees it incurred in defending this appeal.

“[F]ees are warranted under § 505 inasmuch as it served the purposes of the

Copyright Act for [Bashas’] to defend an appeal so that the district court’s fee

award would not be taken away from [it].” Id. at 561. We refer the determination

of an appropriate amount of attorneys’ fees and costs to the Appellate

Commissioner, who shall have authority to enter an order awarding fees to

Appellee.
                                                              page 5
      AFFIRMED in part, REVERSED in part and REMANDED. Costs to

Bashas’.
