                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                           MAR 11 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
ROBERT KUBICEK ARCHITECTS &                      No. 14-15792
ASSOCIATES INCORPORATED, an
Arizona corporation,                             D.C. No. 2:11-cv-02112-FB

               Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

BRUCE C. BOSLEY; JOANNE M.
BOSLEY; BOSLEY GROUP
INCORPORATED, an Arizona
corporation,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                   Frederic Block, Senior District Judge, Presiding

                            Submitted December 9, 2015**
                              San Francisco, California

Before:        KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.



          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                                  page 2
      1. Witnesses testified that Bashas’ designed the initial floor and fixture

plans for each store and that Bashas’ exercised substantial control over the plans

throughout the design process. That testimony allowed the jury to infer that any

similarities between Bosley’s allegedly infringing plans and the plans of Robert

Kubiceck Architects & Associates, Inc. (“RKAA”) resulted from the fact that the

two companies shared a client that provided them with similar source material.

See Costa v. Desert Palace, Inc., 299 F.3d 838, 859 (9th Cir. 2002) (en banc)

(explaining that “we must draw all inferences in favor of” the prevailing party).

The jury thus reasonably could have concluded that Defendants didn’t copy any

original elements of RKAA’s plans. See Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,

499 U.S. 340, 361 (1991). Accordingly, RKAA wasn’t entitled to judgment as a

matter of law. Nor did the district court abuse its discretion in denying RKAA’s

motion for a new trial. See DSPT Int’l, Inc. v. Nahum, 624 F.3d 1213, 1218 (9th

Cir. 2010).


      2. Although RKAA obtained a pretrial order prohibiting mention of prior

litigation between RKAA and Defendants, one of RKAA’s witnesses, Kubicek,

nonetheless referred to a prior copyright infringement suit at trial. Because the jury

was aware of this prior suit, the district court acted within its discretion when it
                                                                               page 3
allowed defense counsel to ask clarifying questions and refer to the parties’ prior

disputes in closing. See Beachy v. Boise Cascade Corp., 191 F.3d 1010, 1012 (9th

Cir. 1999). Defense counsel also improperly referred to prior litigation between

the parties in his opening statement, but these and other such references had no

effect on the outcome of the trial. See McEuin v. Crown Equip. Corp., 328 F.3d

1028, 1032 (9th Cir. 2003) (as amended).


      3. As the district court recognized, considerable testimony revealed that any

similarities between the parties’ plans resulted from the fact that both RKAA and

Bosley worked from Bashas’ source material. Thus, even if the district court erred

by admitting Defendants’ Exhibit C, the limited references to that exhibit during

trial didn’t prejudice RKAA. See Estate of Barabin v. AstenJohnson, Inc., 740

F.3d 457, 464 (9th Cir. 2014) (en banc); Pfingston v. Ronan Eng’g Co., 284 F.3d

999, 1005 (9th Cir. 2002).


      4. RKAA’s motion to supplement the record with full-sized exhibits is

DENIED.


      AFFIRMED.
