                                                                           FILED
                              NOT FOR PUBLICATION                           AUG 05 2013

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




                              FOR THE NINTH CIRCUIT



RENE CARRANZA,                                     No. 11-55782

                Plaintiff - Appellant,             D.C. No. 2:09-cv-03604-GW-CW

  v.
                                                   MEMORANDUM *
UNIVERSAL MUSIC GROUP, INC., a
Delaware corporation; et al.,

                Defendants - Appellees,

UNIVISION.COM; et al.,

                Defendants.



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

                                Submitted July 24, 2013 **

Before:         ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.

       Rene Carranza appeals pro se from the district court’s summary judgment


            *
             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).
and damages award on his copyright infringement claims against defendants

Universal Music Group, Inc. and its affiliates (the “Universal Defendants”). We

have jurisdiction under 28 U.S.C. § 1291. We review de novo summary judgment,

White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007), and for clear error an

actual damages award, Jarvis v. K2 Inc., 486 F.3d 526, 529 (9th Cir. 2007). We

affirm.

      After denying summary judgment on the liability portion of Carranza’s

direct infringement claim, the district court properly limited Carranza’s recovery to

his actual damages and the Universal Defendants’ profits because he was not

entitled to statutory damages, attorney’s fees, or punitive damages. See 17 U.S.C.

§ 412 (prohibiting statutory damages and attorney’s fees if the work is not

registered before infringement commences, or within three months of the work’s

first publication); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 n.5

(9th Cir. 2004) (where statutory damages are unavailable, a plaintiff can recover

only its actual damages as a result of the infringement and defendant’s profits from

the infringement); L.A. News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987,

996 (9th Cir. 1998) (statutory damages serve punitive purpose, and are recoverable

to sanction and vindicate the Copyright Act’s policy of discouraging infringement).

      The district court did not clearly err in limiting Carranza’s damages to the


                                          2                                    11-55782
Universal Defendants’ gross revenues from the sale of Carranza’s album because

Carranza failed to establish that he suffered any additional actual damages as a

result of the infringement. See 17 U.S.C. § 504(b) (copyright owner can establish

actual damages suffered “as a result of the infringement” and profits of the

infringer “attributable to the infringement” based on proof of gross revenues).

      The district court did not abuse its discretion in denying Carranza leave to

file a fourth amended complaint because, even assuming that his proposed contract

claim was timely under the doctrine of equitable tolling, Carranza failed to attach

the proposed amended complaint or establish good cause for his undue delay in

seeking to amend. See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir.

2002) (setting forth standard of review and factors relevant to a motion to amend).

      The district court did not abuse its discretion in denying Carranza’s request

for the return of his original master and related materials because Carranza failed

to establish that the materials, which he provided to the direct infringer, were in the

possession of the Universal Defendants. See Citizens for Clean Gov’t v. City of

San Diego, 474 F.3d 647, 650 (9th Cir. 2007) (setting forth standard of review).

      Issues raised for the first time in Carranza’s reply brief regarding his former

counsel’s alleged pre-litigation discussions with defense counsel are deemed

waived. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).


                                           3                                    11-55782
      We decline to address Carranza’s arguments regarding summary judgment

on his vicarious and contributory infringement claims because these alternative

theories would not entitle Carranza to any additional damages that are not already

encompassed by the damages award on his direct infringement claim.

      Carranza’s contentions regarding the denial of his constitutional right to a

jury trial, the flooding of the Spanish market with pre-sold copies of his album, the

allegedly binding promises made by employees of the Universal Defendants, the

calculation of damages based on expenses he incurred before the infringement, and

alleged unspecified inaccuracies in his deposition transcript are unpersuasive.

      AFFIRMED.




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