        United States Court of Appeals
                   For the Eighth Circuit
               ___________________________

                       No. 14-3274
               ___________________________

                    Killer Joe Nevada, LLC

              lllllllllllllllllllll Plaintiff - Appellee

                                 v.

                            Does 1-20

                   lllllllllllllllllllll Defendant

                         Leigh Leaverton

             lllllllllllllllllllll Defendant - Appellant

Nicholas Anderson; Brittany Bolan; Richard Brother; Jason Fills

                   lllllllllllllllllllll Defendants

                    ------------------------------

                         Leigh Leaverton

         lllllllllllllllllllllCounter Claimant - Appellant

                                 v.

                        Killer Joe Nevada

         lllllllllllllllllllllCounter Defendant - Appellee
                              ____________
                     Appeal from United States District Court
                   for the Northern District of Iowa - Sioux City
                                  ____________

                          Submitted: September 21, 2015
                             Filed: December 4, 2015
                                  ____________

Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
                           ____________


BENTON, Circuit Judge.

       Killer Joe Nevada, LLC sued Leigh Leaverton for infringement under the
Copyright Act. Leaverton counterclaimed for a declaratory judgment. Killer Joe
Nevada moved to voluntarily dismiss its suit. Leaverton objected unless the district
court1 awarded her attorney’s fees. The court dismissed the suit, dismissed the
counterclaim as moot, and denied Leaverton’s requests for attorney’s fees and to
make a record. Leaverton appeals. Having jurisdiction under 28 U.S.C. § 1291, this
court affirms.

                                         I.

       Killer Joe Nevada owns the copyright to the 2012 motion picture “Killer Joe.”
Killer Joe Nevada sued several “John Doe” defendants for copyright infringement,
alleging each downloaded the film through a BitTorrent computer program.2 In its

      1
       The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa.
      2
        “Simplified, BitTorrent and similar protocols break a large file into pieces
while tagging each piece with a common identifier. Where in the normal course a
user would download a file from a single source, and download it sequentially from

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complaint, Killer Joe Nevada identified each defendant only by Internet Protocol (IP)
address. Killer Joe Nevada subpoenaed the respective Internet service providers
(ISPs) to disclose the subscriber at each IP address. After Leaverton was identified,
Killer Joe Nevada amended to make her a defendant. Leaverton answered, denied the
allegations, and counterclaimed for a declaratory judgment that she had not infringed
Killer Joe Nevada’s copyright.

       After Leaverton denied downloading the film, Killer Joe Nevada moved to
voluntarily dismiss its complaint with prejudice and to dismiss Leaverton’s
counterclaim as moot. Leaverton opposed the voluntary dismissal unless it included
attorney’s fees. Specifically, she argued that attorney’s fees would deter Killer Joe
Nevada and other plaintiffs from suing an IP-identified subscriber without
investigating whether the subscriber herself had infringed the copyright. The district
court granted Killer Joe Nevada’s motion to voluntarily dismiss its complaint,
dismissed Leaverton’s counterclaim as moot, and denied the request for attorney’s
fees. Leaverton appeals.

                                         II.

      In a copyright action, a district court “in its discretion may . . . award a
reasonable attorney’s fee to the prevailing party.” 17 U.S.C. § 505. This court
reviews a denial of fees only for abuse of discretion. See Toro Co. v. R&R Prods.
Co., 787 F.2d 1208, 1210 n.1 (8th Cir. 1986). A district court abuses its discretion
“when a relevant factor that should have been given significant weight is not
considered; when an irrelevant or improper factor is considered and given significant
weight; [or] when all proper factors, and no improper ones, are considered, but the



beginning to end, with the BitTorrent peer-to-peer protocol, users join forces to
simultaneously download and upload pieces of the file from and to each other.” AF
Holdings, LLC v. Does 1-1058, 752 F.3d 990, 998 (D.C. Cir. 2014).

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court, in weighing those factors, commits a clear error of judgment.” Fair Isaac
Corp. v. Experian Info. Solutions, Inc., 650 F.3d 1139, 1152 (8th Cir. 2011).
Factual findings about fees bind this court unless clearly erroneous; review of legal
principles is plenary. Hartman v. Hallmark Cards, Inc., 833 F.2d 117, 122 (8th Cir.
1987).

       Leaverton asserts an abuse of discretion in declining to award attorney’s fees.
The parties agree she is a prevailing party. Attorney’s fees, however, are not awarded
to the prevailing party automatically or as a matter of course. See Fogerty v. Fantasy,
Inc., 510 U.S. 517, 533 (1994) (noting no presumption for fee awards in Copyright
Act claims). Awarding attorney’s fees to a prevailing party “is a matter for the
district court’s ‘equitable discretion,’ to be exercised in an evenhanded manner by
considering factors such as whether the lawsuit was frivolous or unreasonable, the
losing litigant’s motivations, the need in a particular case to compensate or deter, and
the purposes of the Copyright Act.” Action Tapes, Inc. v. Mattson, 462 F.3d 1010,
1014 (8th Cir. 2006), citing Fogerty, 510 U.S. at 534, 534 n.19.

      A claim for attorney’s fees must be made by motion. See Fed. R. Civ. P.
54(d)(2)(A) (“A claim for attorney’s fees . . . must be made by motion unless the
substantive law requires those fees to be proved at trial . . . .”). Leaverton requested
attorney’s fees not by motion, but in her opposition to Killer Joe Nevada’s motion to
voluntarily dismiss its complaint. The district court analyzed Leaverton’s request as
if it were a motion for attorney’s fees. See Lowry ex rel. Crow v. Watson Chapel
Sch. Dist., 540 F.3d 752, 763 (8th Cir. 2008) (“Our case law indicates that we may
assume that the district court implicitly ruled to allow the application [for fees] to be
treated as a motion . . . .”). This court treats Leaverton’s request as a motion for
attorney’s fees.

       Leaverton asserts an abuse of discretion in several ways. First, she argues that
the district court erroneously ruled it was reasonable and not frivolous for Killer Joe


                                          -4-
Nevada to sue the subscriber for the IP address. Leaverton believes it is unreasonable
for a Copyright Act plaintiff to sue the subscriber without first investigating whether
the subscriber was responsible for the infringement.

       Although this court has not reached that precise question, a plaintiff such as
Killer Joe Nevada may properly sue “John Doe” to ascertain the ISP subscriber. See
In re Charter Commc’ns Inc., Subpoena Enforcement Matter, 393 F.3d 771, 774,
775 n.3 (8th Cir. 2005) (“Only the ISP . . . can link a particular IP address with an
individual’s name and physical address”; plaintiffs can seek “third-party discovery
of the identity of the otherwise anonymous ‘John Doe’ defendant” from ISP).
Leaverton cites no binding authority that a Copyright Act suit based on the infringer’s
IP address is frivolous or unreasonable. The district court thus did not abuse its
discretion by concluding that Killer Joe Nevada’s acts were reasonable. See
Hartman, 833 F.2d at 123 (affirming denial of attorney’s fees to prevailing defendant
when “complaint was colorable and not baseless”).

       Leaverton argues that the district court abused its discretion in determining that
Killer Joe Nevada did not have improper motivations in bringing the lawsuit. The
district court found that, because Killer Joe Nevada promptly dismissed its lawsuit
once it learned Leaverton was not the infringer, Killer Joe Nevada had proper motives
to sue the subscriber. The district court’s finding that Killer Joe Nevada lacked
improper motivation was not an abuse of discretion. See generally O’Connell v.
Champion Int’l Corp., 812 F.2d 393, 395 (8th Cir. 1987) (finding, under Rule 11,
that district court’s “determination that the plaintiffs’ conduct was justified rests upon
and is informed by the District Court’s intimate familiarity with the case, parties, and
counsel, a familiarity [this court] cannot have” and is entitled to “substantial
deference from a reviewing court”).

      Leaverton argues that the district court abused its discretion by failing to
consider her financial status. She cites no authority that a party’s financial status

                                           -5-
affects whether attorney’s fees under § 505 should be awarded. It was not an abuse
of discretion for the district court to fail explicitly to consider the factor of financial
status.

        Citing Marks v. Leo Feist, Inc., 8 F.2d 460, 461 (2d Cir. 1925), Leaverton
argues that a district court should consider “the importance of the questions in
litigation” when ruling on attorney’s fees under § 505. This court, however, has
never cited Marks for that proposition, and Marks long predates this court’s
announcement of the factors for attorney’s fees under § 505. See Action Tapes, 462
F.3d at 1014. The district court properly considered those factors and did not abuse
its discretion by failing explicitly to consider the importance of the controlling legal
question.

       Leaverton argues that the court abused its discretion in weighing the relevant
factors. Even if “a different court might have weighed the factors in this case
differently,” that does not render the district court’s decision an abuse of discretion.
Pearson Educ., Inc. v. Almgren, 685 F.3d 691, 696 (8th Cir. 2012). The district
court committed no “clear error of judgment” in weighing the factors. See Fair
Isaac, 650 F.3d at 1152.

       The district court did not abuse its discretion in denying Leaverton’s request
for attorney’s fees.

                                           III.

      According to Leaverton, the district court erred in denying her the opportunity
to make a record on her request for attorney’s fees. Under Rule 54, the district court
“must, on a party’s request, give an opportunity for adversary submissions on the
motion [for attorney’s fees] in accordance with Rule 43(c) or 78.” Fed. R. Civ. P.
54(d)(2)(C). Rule 54 does not require an oral hearing. See Fed. R. Civ. P. 78(b)

                                           -6-
(“[T]he court may provide for submitting and determining motions on briefs, without
oral hearings.”); Fed. R. Civ. P. 43(c) (“[T]he court may hear the matter on affidavits
or may hear it wholly or partly on oral testimony . . . .”). The district court considered
the parties’ submissions on the attorney’s fee issue. “Nothing more was required by
Rule 54.” Miller v. Dugan, 764 F.3d 826, 830 (8th Cir. 2014). Because Leaverton
had an opportunity to make a record, the district court did not abuse its discretion.

                                      *******

      The judgment is affirmed.
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