KILLER JOE NEVADA, LLC, Plaintiff-Appellee v. DOES 1-20, Defendant Leigh Leaverton, Defendant-Appellant Nicholas Anderson; Brittany Bolan; Richard Brother; Jason Fills, Defendants
No. 14-3274
United States Court of Appeals, Eighth Circuit
Submitted: Sept. 21, 2015. Filed: Dec. 4, 2015.
807 F.3d 908
Green argues specifically that the Commission impermissibly considered a 1975 assault with a knife for which he was not prosecuted. He also argues the Commission impermissibly considered his purported failure to accept responsibility for his offense. Finally, he argues the Commission‘s determinations lack supporting evidence.
We conclude the Commission‘s broad inquiry did not involve the impermissible consideration of matters outside the scope of the Commission‘s authority. The Commission was free to assess Green‘s acceptance of responsibility based on the ample record and to consider his prior, similar uncharged conduct (described in his pre-sentence investigation report) as evidence relevant to his risk of rеcidivism. As we described in Jones, to articulate a question subject to review by the courts, a prisoner must, “demonstrate that the Commission‘s decisions involve a plain violation of a matter which does not admit of discretion and choice.” 903 F.2d at 1184. No such violation exists in this case.
We affirm the judgment of the district court.
Keith A. Vogt, of Oak Park, IL, argued and appeared on thе brief on behalf of the appellee.
Before LOKEN, BENTON, and SHEPHERD, Circuit Judges.
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 court awarded her attorney‘s fees. The court1 dismissed the suit, dismissed the counterclaim as moot, and denied Leaverton‘s requests for attоrney‘s fees and to make a record. Leaverton appeals. Having jurisdiction under
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
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 hersеlf 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. Leavеrton appeals.
II.
In a copyright action, a district court “in its discretion may ... award a reasonable attorney‘s fee to the prevailing party.”
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 clаims). 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 frivolоus 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 n. 19.
A claim for attorney‘s fees must be made by motion. See
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 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 thе 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 nо 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 affects whether attorney‘s feеs under
Citing Marks v. Leo Feist, Inc., 8 F.2d 460, 461 (2d Cir. 1925), Leaverton argues that a district court should consider “the imрortance of the questions in litigation” when ruling on attorney‘s fees under
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 dis-
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.”
The judgment is affirmed.