                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 09 2014

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



                            FOR THE NINTH CIRCUIT


MARSHALL & SWIFT/BOECKH, LLC,                    No. 12-57221

              Plaintiff - Appellee,              D.C. No. 2:08-CV-04375

  v.
                                                 MEMORANDUM*
DEWBERRY & DAVIS LLC,

              Defendant - Appellant,

  And

URS CORPORATION,

              Defendant.


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

                           Submitted December 8, 2014**
                               Pasadena, California




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: SILVERMAN and BEA, Circuit Judges, and BELL, District Judge.***

      Dewberry & Davis LLC (“Dewberry”) appeals the district court’s denial of

attorney’s fees in its favor under § 505 of the Copyright Act. We affirm.

      We review an order denying attorney’s fees under the Copyright Act for abuse

of discretion. Halicki Films, LLC v. Sanderson Sales & Mktg, 547 F.3d 1213, 1220

(9th Cir. 2008). Under this standard, we review factual findings for clear error, and

legal conclusions de novo. Love v. Assoc. Newspapers, Ltd., 611 F.3d 601, 614 (9th

Cir. 2010) (citing Barrientos v. 1801-1825 Morton LLC, 583 F.3d 1197, 1207 (9th

Cir. 2009)).

      The district court did not legally err by failing to accord Dewberry a strong

presumption of entitlement to a fee award. The Copyright Act provides that the court

“may” award a reasonable attorney’s fee to the prevailing party. 17 U.S.C. § 505.

“[A]ttorney’s fees are to be awarded to prevailing parties only as a matter of the

court’s discretion.” Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994). See also

Fantasy, Inc. v. Fogerty, 94 F.3d 553, 555 (9th Cir. 1996) (“[A]n award of attorney’s

fees to a prevailing defendant that furthers the underlying purposes of the Copyright

Act is reposed in the sound discretion of the district courts.”). Considerations that



        ***
             The Honorable Robert Holmes Bell, District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.

                                         2
guide the exercise of that discretion include “(1) the degree of success obtained; (2)

frivolousness; (3) motivation; (4) the objective unreasonableness of the losing party’s

factual and legal arguments; and (5) the need, in particular circumstances, to advance

considerations of compensation and deterrence.” Love, 611 F.3d at 614-15 (citing

Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994)). In applying these factors, a court

should be “faithful to the purposes of the Copyright Act.” Fogerty, 510 U.S. at 534

n.19.

        The Seventh Circuit has “refined” the Fogerty standard to add a presumption

that the prevailing party is entitled to an award of fees under § 505, and a strong

presumption if the prevailing party is the defendant. Mostly Memories, Inc. v. For

Your Ease Only, Inc., 526 F.3d 1093, 1099 (7th Cir. 2008) (citing Woodhaven Homes

& Realty, Inc. v. Hotz, 396 F.3d 822, 824-25 (7th Cir. 2005); Assessment Techs. of WI,

LLC v. WIREdata, Inc., 361 F.3d 434, 436-37 (7th Cir. 2004)). Unlike the Seventh

Circuit, we have continued to apply the factors outlined in Fogerty without a

presumption. See, e.g., Love, 611 F.3d at 614-15; Halicki, 547 F.3d at 1230; Fantasy,

94 F.3d at 560. See also Lava Records, LLC v. Amurao, 354 F. App’x 461, 463 (2d

Cir. 2009) (expressly rejecting a presumption in favor of awarding attorney’s fees to

prevailing defendants in copyright cases). The district court’s failure to apply a

presumption is not legal error.


                                          3
      Neither did the district court legally err by applying a blameworthiness or

culpability standard that was rejected in Fantasy. See Fantasy, 94 F.3d at 558

(“[B]lameworthiness is not a prerequisite to awarding fees to a prevailing defendant.”)

Although the district court introduced its order by noting that there must be some

showing by the prevailing party that the action was brought based on frivolous or

unreasonable grounds, this misstatement was cured when the district court correctly

noted that its discretion to award fees did not require a finding of bad faith or

blameworthiness and thereafter considered each of the factors suggested in Fogerty.

Because the district court did not rest its decision solely on the lack of frivolousness

or unreasonableness, we are satisfied that it applied the correct legal standard in ruling

on Dewberry’s motion for attorney’s fees.

      The district court’s findings of fact were not clearly erroneous as they were not

“‘illogical, implausible, or without support in inferences that may be drawn from the

facts in the record.’” Arc of California v. Douglas, 757 F.3d 975, 983-84 (9th Cir.

2014) (quoting M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012)). Moreover, the

district court’s failure to embrace Dewberry’s specific arguments and its failure to

weigh the factors in the manner suggested by Dewberry were within the “wide

latitude” granted to district courts in exercising their discretion with respect to the

award of attorney’s fees under § 505. Entm’t Research Grp., Inc. v. Genesis Creative


                                            4
Grp., Inc., 122 F.3d 1211, 1229 (9th Cir. 1997); see Fogerty, 510 U.S. at 534 (noting

that “‘[T]here is no precise rule or formula for making [fee] determinations’” in

copyright cases) (quoting Hensley v. Eckerhart, 461 U.S. 424, 436 (1983)). The

district court reasonably exercised its discretion in denying attorney’s fees and

adequately explained its basis for doing so.

      AFFIRMED.




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