                                                      [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS
                                                            FILED
                   FOR THE ELEVENTH CIRCUIT COURT OF APPEALS
                                            U.S.
                    ________________________ ELEVENTH CIRCUIT
                                                       MARCH 17, 2011
                           No. 10-14799                  JOHN LEY
                       Non-Argument Calendar               CLERK
                    ________________________
                  D.C. Docket No. 0:09-cv-60335-JIC

LIZZETTE DAWES-ORDONEZ,



                                                       Plaintiff - Appellant,

                               versus

MARY FORMAN, et al.,

                                                                Defendants,

REALTOR ASSOCIATION OF GREATER
FORT LAUDERDALE, INC.,



                                                      Defendant - Appellee,

MEREDITH DICAROLIS,
REVIER REAL ESTATE CORP.,

                                                  Third Party Defendants.
                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                  (March 17, 2011)

Before TJOFLAT, PRYOR and ANDERSON, Circuit Judges.

PER CURIAM:

      Lizzette Dawes-Ordonez appeals the award of attorney’s fees to the Realtor

Association of Greater Fort Lauderdale, Inc., which prevailed against her

complaint of copyright infringement. The district court granted summary

judgment in favor of the Association and granted its motion for attorney’s fees on

the ground that Dawes-Ordonez had sued the Association without providing notice

of its alleged infringement. We affirm. Because we find this appeal frivolous, we

also grant the motion of the Association to impose sanctions against Dawes-

Ordonez under Federal Rule of Appellate Procedure 38, and remand with

instructions to determine a reasonable fee for the Association.

      The Copyright Act grants the district court the power to award a “reasonable

attorney’s fee to the prevailing party.” 17 U.S.C. § 505. Attorney’s fees “are to be

awarded . . . only as a matter of the court’s discretion.” Fogerty v. Fantasy, Inc.,

510 U.S. 517, 534, 114 S. Ct. 1023, 1033 (1994). When the district court weighs

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the factors that the Court in Fogerty recommended should “guide courts’

discretion,” id. at 534 n.19, 114 S. Ct. at 1033 n.19, “‘we will not question the

court’s decision to grant or deny fees absent an abuse of that discretion.’” MiTek

Holdings, Inc. v. Arce Eng’g Co., Inc., 198 F.3d 840, 842 (11th Cir. 1999)

(quoting Montgomery v. Noga, 168 F.3d 1282, 1303 (11th Cir. 1999)). An abuse

of discretion occurs if the district court makes a finding of fact that is clearly

erroneous or commits a clear error of judgment. Gray ex rel. Alexander v. Bostic,

613 F.3d 1035, 1039 (11th Cir. 2010). We consider whether the award of

attorney’s fees “further[s] . . . the policies of the law that are being enforced, as

informed by the court’s familiarity with the matter in litigation and the interest of

justice.’” Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 854

(11th Cir. 1990) (quoting Casella v. Morris, 820 F.2d 362, 367 (11th Cir. 1987)).

      Dawes-Ordonez sued the Association for allegedly infringing a copyright

Dawes-Ordonez held for photographs of a residence that she had licensed a realtor

to disseminate through a multiple listing service owned by the Association. The

district court granted summary judgment in favor of the Association and ruled that

Dawes-Ordonez had “constructively delivered” her photographs to the Association

and “intended that the [p]hotographs be distributed by” the Association. Dawes-

Ordonez does not challenge the summary judgment in favor of the Association.

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      The district court did not abuse its discretion when it awarded attorney’s

fees to the Association. The district court ruled that Dawes-Ordonez’s decision to

sue before giving notice to the Association of its alleged infringement was

“objectively unreasonable” and “demonstrate[d] a questionable subjective

motivation.” The district court was entitled to question Dawes-Ordonez’s motive

in refusing to notify the Association after she had notified the realtors and real

estate company that also participated in the alleged infringement. The district

court also awarded fees to “deter copyright holders from filing such suits without

first attempting to resolve the matter outside of court.” The purposes of the

copyright laws are served only when parties “litigate meritorious” arguments.

Fogerty, 510 U.S. at 527, 114 S. Ct. at 1030. See also MiTek, 198 F.3d at 842–43.

When a complaint of infringement is without merit, the district court may consider

deterrence, Fogerty, 510 U.S. at 534 n.19, 114 S. Ct. at 1033 n.19, in the exercise

of its discretion to award fees.

      The Association has requested that we impose sanctions against Dawes-

Ordonez for pursuing a frivolous appeal. Fed. R. App. P. 38. Rule 38 provides

that, “[i]f a court of appeals determines that an appeal is frivolous, it may, after a

separately filed motion or notice from the court and reasonable opportunity to

respond, award just damages and single or double costs to the appellee.” Because

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Dawes-Ordonez’s challenge to the award of attorney’s fees is entirely without

merit, we award to the Association double costs and reasonable attorney’s fees

incurred as a result of this appeal. We remand this action to the district court with

instructions to determine the amount of attorney’s fees reasonably incurred by the

Association and assess that amount against Dawes-Ordonez.

      We AFFIRM the award of attorney’s fees to the Association, we AWARD

SANCTIONS to the Association under Rule 38, and we REMAND with

instructions to determine a reasonable fee for the defense of this appeal.




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