                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 26 2012

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




                            FOR THE NINTH CIRCUIT

NANCY RADIN,                                      Nos. 11-57228
                                                       12-55432
              Plaintiff - Appellant/Appellee,
                                                  D.C. No. 2:10-cv-08838-JAK-SS
  v.

DARLENE HUNT and SHOWTIME                         MEMORANDUM *
NETWORKS, INC., a Delaware
corporation,

         Defendants - Appellees/Appellants.



                    Appeals from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                      Argued and Submitted November 9, 2012
                               Pasadena, California

Before: BRIGHT,** GRABER, and IKUTA, Circuit Judges.

       Plaintiff Nancy Radin appeals the district court’s denial of additional

discovery to her, its grant of summary judgment to Defendants Darlene Hunt and




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
         The Honorable Myron H. Bright, Senior Circuit Judge for the United
States Court of Appeals for the Eighth Circuit, sitting by designation.
Showtime Network, Inc., and its award of attorney fees to Defendants under 17

U.S.C. § 505. Defendants cross-appeal the denial of their motion for sanctions

under Federal Rule of Civil Procedure 11. We affirm.

      1. The district court did not abuse its discretion in denying additional

discovery. Tatum v. City of San Francisco, 441 F.3d 1090, 1100 (9th Cir. 2006).

It permissibly rested its decision on its determination that Plaintiff’s failure to

engage in discovery earlier was not excusable. See Pfingston v. Ronan Eng’g Co.,

284 F.3d 999, 1005 (9th Cir. 2002) ("The failure to conduct discovery diligently is

grounds for the denial of [additional discovery].").

      2. The district court correctly granted summary judgment to Defendants as

to Plaintiff’s copyright infringement claim. Viewing the evidence in the light most

favorable to Plaintiff, Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir. 2010), no

reasonable jury could conclude either that Defendants had access to Plaintiff’s

work or that the two works are substantially similar—much less strikingly similar,

see Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir.

2006) (holding that, to establish copying, a plaintiff generally must show both

access and substantial similarity); Three Boys Music Corp. v. Bolton, 212 F.3d

477, 485 (9th Cir. 2000) (stating that an inference of copying may arise without

evidence of access where the works are "strikingly similar").


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      3. Nor did the district court apply an incorrect standard in assessing

Defendants’ Rule 11 motion. The district court’s statement is consistent with Rule

11, as it evinces a concern with the merit of Plaintiff’s suit as it developed in

litigation, and not just at the time of filing. See Fed. R. Civ. P. 11(b). Further,

when the statement is read in context, it is clear the court did not rest its denial of

sanctions on the sincerity of Plaintiff’s beliefs regarding the merits. Neither did

the court abuse its discretion in awarding attorney fees to Defendants. Omega S.A.

v. Costco Wholesale Corp., 541 F.3d 982, 984 (9th Cir. 2008). There is no rule

against awarding fees under 17 U.S.C. § 505 where a third party indemnifies a

litigant’s legal expenses. The district court permissibly applied the factors

identified in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994).

      4. With respect to Defendants’ cross-appeal, the district court did not abuse

its discretion in declining to impose Rule 11 sanctions against Plaintiff or her

counsel. Sneller v. City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir. 2010).

Plaintiff’s copyright claim rested on recognized legal theories and, although it was

ultimately inadequate to survive summary judgment, the decision of Plaintiff’s

counsel to pursue the claim was not so factually baseless as to require the district

court to impose sanctions. See Moore v. Keegan Mgmt. Co. (In re Keegan Mgmt.

Co., Sec. Litig.), 78 F.3d 431, 434 (9th Cir. 1996) (reversing sanctions award and


                                            3
holding that, to warrant Rule 11 sanctions, a filing must be "frivolous"—that is,

"both baseless and made without a reasonable and competent inquiry." (internal

quotation marks omitted)).

      AFFIRMED.




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