Lydia Cornell v. George Del Junco , 544 F. App'x 738 ( 2013 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 08 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
LYDIA CORNELL, an individual; No. 12-55548
NELLE PAEGEL, an individual; BRIAN
WILLIAMS, an individual; BODY D.C. No. 2:11-cv-08810-GW-SH
COMPANY OF SPORTS, INC., The, a
Nevada corporation; THOMAS PAEGEL,
an individual; THOMAS W. V. PAEGEL, MEMORANDUM*
an individual,
Plaintiffs - Appellants,
V.
GEORGE DEL JUNCO, an individual;
ELIDA DEL TORO, an individual;
STEPHANIE M. KING, an individual;
ALLEN S. MILLER, an individual,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted November 6, 2013**
Pasadena, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: McKEOWN, GOULD, and BYBEE, Circuit Judges.
Lydia Cornell and other plaintiffs (collectively, “Cornell”) appeal the district
court’s dismissal of their copyright infringement action against Stephanie King and
other defendants (collectively, “King”). We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
Cornell raises three separate issues regarding three separate orders in her
opening brief. However, Cornell’s notice of appeal mentions only the district
court’s ruling on her motion for sanctions, attorney’s fees, and costs. Where a
party “seeks to argue the merits of an order that does not appear on the face of the
notice of appeal,” we consider two factors: “(1) whether the intent to appeal a
specific judgment can be fairly inferred, and (2) whether the appellee was
prejudiced by the mistake.” Shapiro ex rel. Shapiro v. Paradise Valley Unified
Sch. Dist. No. 69, 374 F.3d 857, 863 (9th Cir. 2004) (internal quotation marks
omitted).
Cornell fails to mention in her notice of appeal the other district court orders
she raises in her opening brief. Cornell nonetheless seeks this court’s review of
whether the district court erred by denying her motion to remand the case and by
failing to establish subject matter jurisdiction prior to determining that the
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defendant was not in default and that Keith G. Wileman was the attorney of record.
These questions cannot be fairly inferred from Cornell’s notice of appeal. The
district court’s denial of Cornell’s motion seeking sanctions, attorney’s fees, and
costs is the only matter properly before this court.
We review de novo whether the district court applied the correct legal
standard in denying Cornell’s motion for sanctions, attorney’s fees, and costs.
Thomas v. City of Tacoma, 410 F.3d 644, 647 (9th Cir. 2005). We review for
abuse of discretion the district court’s award decision. Ansley v. Ameriquest
Mortg. Co., 340 F.3d 858, 861 (9th Cir. 2003) (reviewing for abuse of discretion
award of fees and costs associated with removal or remand under 28 U.S.C.
§ 1447(c)); In re Keegan Mgmt. Co., Sec. Litig., 78 F.3d 431, 433 (9th Cir. 1996)
(reviewing for abuse of discretion Rule 11 sanctions).
The district court found that Cornell failed to comply with the Rule 11 “safe
harbor” provision. This provision requires the motion to be served 21 days before
filing to afford an attorney an opportunity to correct a challenged filing or to
withdraw altogether. Fed. R. Civ. P. 11(c)(2); see also Barber v. Miller, 146 F.3d
707, 710 (9th Cir. 1998). The district court also found Cornell provided “no
evidence in support of [her] motion,” and that the record revealed that King
“engaged in no misconduct warranting [the district court] to exercise its discretion
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to award sanctions under any legal authority.” Cornell argues that the district
court abused its discretion by refusing to consider all of her evidence and by
applying the wrong legal standard. Nothing in the record supports Cornell’s claim
that the district court “based its ruling on an erroneous view of the law or a clearly
erroneous assessment of the evidence.” Townsend v. Holman Consulting Corp.,
929 F.2d 1358, 1366 (9th Cir. 1990) (quoting Cooter v. Gell, 496 U.S. 384, 405
(1990)).
AFFIRMED.
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