                                                                              FILED
                            NOT FOR PUBLICATION                               DEC 02 2009

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



                            FOR THE NINTH CIRCUIT


CON KOURTIS; et al.,                             No. 08-55659

              Plaintiffs - Appellants,           D.C. No. 2:02-cv-02906-GPS-RNB

  v.
                                                 MEMORANDUM *
JAMES CAMERON; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                   George P. Schiavelli, District Judge, Presiding

                       Argued and Submitted October 8, 2009
                               Pasadena, California

Before: W. FLETCHER and CLIFTON, Circuit Judges, and SINGLETON **,
Senior District Judge.

       Plaintiffs-Appellants Con and Filia Kourtis appeal from the district court’s

orders granting summary judgment and attorney’s fees in favor of Mario Kassar,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
              The Honorable James K. Singleton, United States District Judge for
the District of Alaska, sitting by designation.
the producer of two films in the Terminator series, which the Kourtises claim

infringed on their copyright. After the Kourtises failed to post a costs bond, the

district court dismissed the Kourtises’ claim against director James Cameron

without prejudice while the litigation was ongoing against Kassar. Through

counsel, the Kourtises opined for the first time at oral argument that this court

lacks jurisdiction over their own appeal. In substance that appeal challenges several

adverse orders culminating in summary judgment and an award of costs and fees.

We affirm in all respects.

      Generally, a dismissal without prejudice is not a final appealable order. See

Wakefield v. Thompson, 177 F.3d 1160, 1162 (9th Cir. 1999). But this court has

applied a “‘practical rather than a technical construction’” of finality for purposes

of 28 U.S.C. § 1291, treating as final a dismissal without prejudice that “(1) is a

full adjudication of the issues, and (2) clearly evidences the judge’s intention that it

be the court’s final act in the matter.” See Elliott v. White Mt. Apache Tribal Court,

566 F.3d 842, 845-46 (9th Cir. 2009), quoting Gillespie v. United States Steel

Corp., 379 U.S. 148, 152 (1964).

      The district court’s dismissal of Cameron ripened into a final order on April

18, 2008, when the district court denied the Kourtises’ ex parte application for a

final judgment in favor of Cameron. From that point forward, the dismissal became


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a “full adjudication of the issues” because, as the district court observed, the

subsequent summary “judgment in favor of Defendant Kassar estops Plaintiffs

from reviving their claim against former Defendant Cameron.” The April 18 order

“clearly evidences the judge’s intention that it be the court’s final act in the matter”

by expressing the belief that there was no need for a separate judgment in favor of

Cameron because he “was dismissed from this action almost two years ago.”

Although this court has repeatedly asked district courts to clarify their intent by

issuing separate, final judgments in accord with Fed. R. Civ. P. 58, the absence of a

separate judgment does not necessarily prevent this court from hearing an appeal,

especially where the parties waive the issue, as defendants did here. See Bankers

Trust Co. v. Mallis, 435 U.S. 381, 387-88 (1978); Casey v. Albertson’s Inc., 362

F.3d 1254, 1259 (9th Cir. 2004). Because the judgment was final as of April 18,

2008, the Kourtises’ amended notice of appeal filed on May 14, 2008 was timely.

      The district court’s imposition of a costs bond was within its discretion.

“[T]he federal district courts have inherent power to require plaintiffs to post

security for costs” and typically “follow the forum state’s practice.” Simulnet E.

Assocs. v. Ramada Hotel Operating Co., 37 F.3d 573, 574 (9th Cir. 1994). Costs

bonds were appropriate under California law because the Kourtises “reside[] out of

the state” and there was “a reasonable possibility” that Cameron and Kassar would


                                           3
prevail. Cal. Civ. Proc. Code § 1030(a), (b). At least a reasonable possibility of

prevailing was established by the district court’s determination in a prior suit

brought by the Kourtises’ hired screenwriter that “no reasonable factfinder could

find that [the screenplay based on the Kourtises’ concept] and ‘Terminator 2’ are

substantially similar under federal copyright law.” Green v. Schwarzenegger, 1995

U.S. Dist. LEXIS 14031, at *2 (C.D. Cal. July 17, 1995). The $100,000 amount

initially ordered was not unreasonable based on the information available to the

district court. The court properly considered “the nature and amount of the costs

and attorney’s fees [each] defendant . . . expects to incur,” Cal. Civ. Proc. Code §

1030(b), and reduced the requested amount in light of the limited information the

Kourtises made available about their ability to pay. When the Kourtises presented

additional financial information, the district court reasonably reduced the amount

of the bond as to Kassar, the only bond then pending, to $50,000.

      District courts have broad discretion to deny a motion to proceed in forma

pauperis in a civil action. O’Loughlin v. Doe, 920 F.2d 614, 616-17 (9th Cir.

1990). The district court’s denial of the Kourtises’ motion did not abuse that

discretion. The evidence the Kourtises presented did not support the contention

that they were “unable to pay” the costs bonds without foregoing the necessities of

life. 28 U.S.C. § 1915(a)(1). Cf. Adkins v. E. I. DuPont de Nemours & Co., 335


                                          4
U.S. 331, 339 (1948) (stating that an affidavit is sufficient where it shows affiant

cannot meet court costs and “still be able to provide himself and [his] dependents

with the necessities of life”) (internal quotation marks omitted).

      The district court did not abuse its discretion by denying the Kourtises’

motion for leave to file a second amended complaint adding new defendants almost

four years after those potential defendants should have been known to the

Kourtises. Granting the motion would have required modifying the court’s

scheduling order, and the Kourtises did not show good cause for such a

modification. See Fed. R. Civ. P. 16(b)(4); Johnson v. Mammoth Recreations, Inc.,

975 F.2d 604, 609 (9th Cir. 1992) (holding the “good cause” standard of Rule 16

controls after a scheduling order establishes the pleading timetable).

      Likewise, in the absence of good cause, the district court acted well within

its discretion when it denied the Kourtises’ third successive ex parte application to

extend the time to file their opposition to Kassar’s motion for summary judgment.

      The district court also properly denied the Kourtises’ purported motion to

strike the expert testimony Kassar relied on in his motion for summary judgment.

Because the Kourtises’ motion was not limited to evidentiary issues but instead

sought to introduce new evidence, that motion was actually an untimely opposition

to Kassar’s motion for summary judgment in violation of the order denying an


                                          5
extension of time for such a filing. See William W. Schwarzer et al., Cal. Prac.

Guide: Fed. Civ. Pro. Before Trial 9:403 (TRG 1992) (grounds for a motion to

strike must appear on the face of pleadings or from matters which the court may

judicially notice), cited in Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1528 (9th Cir.

1993), rev’d on other grounds, 510 U.S. 517 (1994).

      This court reviews the district court’s grant of attorneys’ fees and costs

under 17 U.S.C. § 505 for abuse of discretion. Cadkin v. Loose, 569 F.3d 1142,

1146-47 (9th Cir. 2009). “A district court’s fee award does not constitute an abuse

of discretion unless it is based on an inaccurate view of the law or a clearly

erroneous finding of fact.” Twentieth Century Fox Film Corp. v. Entm’t Distrib.,

429 F.3d 869, 883 (9th Cir. 2005). The district court properly considered “(1) the

degree of success obtained, (2) frivolousness, (3) motivation, (4) reasonableness of

losing party’s legal and factual arguments, and (5) the need to advance

considerations of compensation and deterrence.” Wall Data Inc. v. L.A. County

Sheriff’s Dep’t, 447 F.3d 769, 787 (9th Cir. 2006). Although the district court

limited its written analysis to objective unreasonableness and frivolousness, “we

will only remand if the record does not support the district court’s decision.”

Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 792, 815 (9th Cir. 2003). We

conclude that the district court did not abuse its discretion when it awarded fees


                                          6
and costs based on the objective unreasonableness of pursuing a claim for five

years that was substantially identical to the claim previously denied, without any

additional evidentiary basis. See Entm’t Research Group v. Genesis Creative

Group, 122 F.3d 1211, 1229 (9th Cir. 1997).

      The district court’s calculation of an attorney’s fee award of $166,233.50

based on the actual rates charged by Kassar’s attorneys was reasonable under 17

U.S.C. § 505. Because this court has not mandated the lodestar method or

comparison to market rates in calculating attorneys’ fees under the Copyright Act,

the district court’s decision not to apply those methods did not represent “an

inaccurate view of the law.” Twentieth Century Fox Film Corp., 429 F.3d at 883.

The court’s inclusion of an additional $37,850.00 to compensate Kassar’s expert

witness was not an abuse of discretion because non-taxable costs may be included

in the calculation of “full costs” under 17 U.S.C. § 505. Id. at 885.

      AFFIRMED.




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