                                                                           FILED
                             NOT FOR PUBLICATION                             JAN 19 2012

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



BASEVI, INC.,                                    No. 10-55972

               Plaintiff - Appellant,            D.C. No. 2:08-cv-07145 AHM
                                                 (JTLx)
  v.

THE ACORN CO.,                                   MEMORANDUM *

               Defendant - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                     A. Howard Matz, District Judge, Presiding

                             Submitted January 9, 2012 **
                                Pasadena, California

Before:        REINHARDT and W. FLETCHER, Circuit Judges, and BREYER,
               District Judge.***




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **
            The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).
       ***
            The Honorable Charles R. Breyer, United States District Judge for the
Northern District of California, sitting by designation.
      Plaintiff-Appellant Basevi, Inc. (“Basevi”) appeals from the district court’s

award of attorneys’ fees to Defendant-Appellee The Acorn Company (“Acorn”),

following Acorn’s successful defense of Basevi’s copyright action. We have

jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.

      Basevi argues that the district court abused its discretion in granting

attorneys’ fees to Acorn, because Acorn did not settle the case, instead filing a

successful motion to dismiss and a motion for summary judgment. That argument

has no merit. The Copyright Act gives the district court the discretion to award

reasonable attorneys’ fees “to the prevailing party as part of the costs.” See 17

U.S.C. § 505. The district court properly exercised this discretion and followed

Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 (1994).

      That Acorn did not settle is no reason to deny it fees. Although Basevi

blames Acorn for not accepting Basevi’s offer to settle “with a simple affidavit,”

that offer was not made until Basevi was – late – opposing summary judgment. At

that point, Acorn had already spent considerable money defending itself. It might

well have believed that it was likely to prevail on the summary judgment motion it

had already filed, and recover its attorneys’ fees – a benefit not included in

Basevi’s offer. Acorn’s declination to settle was therefore reasonable.




                                           2
      Nor does Basevi’s characterization of Acorn as being “overzealous,” and

unwilling “to negotiate or enter into settlement discussions” ring true. The parties’

26(f) Report states that, early on, Acorn “offered to settle this matter for a lower

nominal amount [than that proposed by Basevi],” but that Basevi would only settle

if Acorn paid Basevi’s attorneys’ fees. Acorn also participated in a settlement

conference with Basevi. Acorn therefore demonstrated a willingness to settle.

Basevi points to no authority supporting its suggestion that Acorn was obligated to

settle at any cost. Nor can Acorn’s decision to defend itself against a meritless

suit, rather than settling at any cost, fairly be deemed “overzealous[ness].”

      In light of the district court’s thorough and reasonable application of

Fogerty, this Court has no “definite and firm conviction” that the district court

committed “clear error” in weighing the relevant factors. See Wall Data Inc. v.

L.A. Cnty. Sheriff’s Dept., 447 F.3d 769, 787 (9th Cir. 2006).

      Finally, Basavi argues that the amount of fees sought by Acorn was

unreasonable. Basevi did not raise the issue of the reasonableness of Acorn’s fees

before the district court. Nor has Basevi made any showing that this Court must

review the reasonableness of the fee award in order to prevent a manifest injustice.

He has therefore waived this issue. See Int’l Union of Bricklayers & Allied

Craftsman Local Union No. 20, AFL-CIO et al. v. Martin Jaska, Inc., 752 F.2d


                                           3
1401, 1404 (9th Cir. 1985) (“We will not . . . review an issue not raised below

unless necessary to prevent manifest injustice.”).

      AFFIRMED.




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