Dionne Choyce v. Sf Bay Area Indep. Media Ctr.

669 F. App'x 863

9th Cir.

2016

Check Treatment

Docket

Dionne CHOYCE, an individual, Plaintiff-Appellant, v. SF BAY AREA INDEPENDENT MEDIA CENTER, aka IMC, SF Bay Area, AKA SF Bay Area IMC, an unincorporated association; et al., Defendants-Appellees.

No. 14-17318

United States Court of Appeals, Ninth Circuit.

Filed October 20, 2016

863

Submitted October 17, 2016 * San Francisco, California

Dow Wakefield Patten, Esquire, Attorney, Smith Patten, Los Angeles, CA, for Plaintiff-Appellant.

Leila Christine Knox, Attorney, Roger Rex Myers, Bryan Cave LLP, San Francisco, CA, for Defendant-Appellee SF BAY AREA INDEPENDENT MEDIA CENTER.

Anthony Francis Basile, Daniel L. Casas, Esquire, Attorney, Casas Riley Simonian LLP, Campbell, CA, for Defendant-Appellee LAYER42.NET, INC.

Before: HAWKINS, CALLAHAN, and HURWITZ, Circuit Judges.

MEMORANDUM **

In this copyright infringement action, Dionne Choyce (“Choyce”) appeals the attorneys’ fee award to Layer42.net, Inc. and SF Bay Area Independent Media Center (collectively, “Appellees”). Choyce contends the court abused its discretion by awarding fees under 17 U.S.C. § 505 and that the amount of the award was also unreasonable. We affirm.

There was no abuse of discretion in determining that Appellees were entitled to an attorney fee award pursuant to 17 U.S.C. § 505. The district court carefully considered the relevant factors under Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994), and articulated numerous valid reasons for exercising its discretion to award fees, including the success obtained, the frivolousness of Choyce’s claim, and the considerations of deterring future baseless claims and compensation for having to defend against them. See Inhale, Inc. v. Starbuzz Tobacco, Inc., 755 F.3d 1038, 1043 (9th Cir. 2014). The district court gave “substantial weight” to the objective reasonableness of Choyce’s position but did not rely exclusively on it, and thus the Supreme Court’s recent decision in Kirtsaeng v. John Wiley & Sons, Inc., — U.S. —, 136 S.Ct. 1979, 1989, 195 L.Ed.2d 368 (2016), does not require a different result.

Nor was there an abuse of discretion in the amount of fees awarded. Appellees submitted some evidence to support the prevailing market rate in the community, and Choyce presented no evidence in rebuttal that the rates sought were not within the range customarily charged by similarly experienced attorneys in the area. See Hiken v. Dep‘t of Def., 836 F.3d 1037, 1045-46 (9th Cir. 2016). The district court recognized the amounts requested by Appellees may not have been sufficiently limited to the federal copyright claim and reduced the award by 25% accordingly, which is a reasonable approximation of the time spent on the copyright claim. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“Where the documentation of hours is inadequate, the district court may reduce the award accordingly.”). Finally, Appellees permissibly recover fees expended in order to establish their entitlement to and the amount of fees under § 505. See Fantasy, Inc. v. Fogerty, 94 F.3d 553, 561 (9th Cir. 1996); see also Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 981 (9th Cir. 2008). We grant Appellees’ requests for fees on appeal and refer the determination of an appropriate amount of fees and costs to the Appellate Commissioner.

AFFIRMED.

Mathew Ruben MANZANO, Petitioner-Appellant, v. W. L. MONTGOMERY, Acting Warden, Respondent-Appellee.

No. 14-55811

United States Court of Appeals, Ninth Circuit.

Filed October 20, 2016

864

Argued and Submitted October 3, 2016 Pasadena, California

Elizabeth Richardson-Royer, Deputy Federal Public Defender, FPDCA—Federal Public Defender’s Office (Los Angeles), Los Angeles, CA, for Petitioner-Appellant.

Vincent P. LaPietra, Deputy Attorney General, AGCA—Office of the Attorney General (San Diego), San Diego, CA, for Respondent-Appellee.

Before: D.W. NELSON and PAEZ, Circuit Judges, and BUCKLO,* District Judge.

MEMORANDUM **

Mathew Manzano (“Manzano”) appeals the district court’s denial of his petition for habeas corpus brought pursuant to 28 U.S.C. § 2254. Manzano challenges his murder conviction on the ground that his attorney furnished ineffective assistance of counsel by failing sufficiently to object to the prosecutor’s misstatement during his closing argument that DNA evidence linked Manzano to one of the murder victims. We affirm.

Under Strickland v. Washington, 466 U.S. 668 (1984), to prevail on a claim for ineffective assistance of counsel, a petitioner must show: “(1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense.” Gallegos v. Ryan, 820 F.3d 1013, 1025 (9th Cir. 2016) (internal quotation marks omitted). Because Manzano filed his federal habeas petition after April 24, 1996, we apply the

Notes

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The Honorable Elaine E. Bucklo, United States District Judge for the Northern District of Illinois, sitting by designation.

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.