Dream Games of Arizona, Inc. v. Pc Onsite , 448 F. App'x 747 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 26 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DREAM GAMES OF ARIZONA, INC. No. 10-16336
and AMERICAN SOFTWARE
DEVELOPMENT COMPANY, INC., D.C. No. 2:03-cv-00433-ROS
Plaintiffs - Appellees,
MEMORANDUM*
v.
PC ONSITE and CASEY HAGON,
Defendants - Appellants,
and
GARLAND PIERCE,
Defendant,
v.
PAUL PEREZ,
Third-party-defendant -
Appellee.
Appeal from the United States District Court
for the District of Arizona
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Roslyn O. Silver, Chief District Judge, Presiding
Submitted August 23, 2011**
Before: CANBY and WARDLAW, Circuit Judges, and MILLS, Senior District
Judge.***
PC Onsite appeals the district court’s denial of its motion under Federal Rule
of Civil Procedure 60(b) seeking reconsideration of the court’s decision awarding
attorney fees to Dream Games of Arizona. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
PC Onsite sought reconsideration on the ground that the attorney fee award
was void under Rule 60(b)(4), but this provision “applies only in the rare instance
where a judgment is premised either on a certain type of jurisdictional error or on a
violation of due process that deprives a party of notice or the opportunity to be
heard.” United Student Aid Funds, Inc. v. Espinosa, 130 S. Ct. 1367, 1377 (2010).
PC Onsite does not assert any due process violation. Its only jurisdictional
argument is that the district court erred by awarding attorney fees in the absence of
an explicit jury finding that PC Onsite commenced infringement after Dream
Games registered for copyright protection on November 27, 2002. The Copyright
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Mills, Senior United States District Judge for
the Central District of Illinois, sitting by designation.
2
Act, 17 U.S.C. § 412, “precludes an award of attorneys’ fees if the copyrighted
work is not registered prior to the commencement of the infringement, unless the
registration is made within three months after the first publication of the work.”
Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 701-02 (9th Cir. 2008).
However, this requirement of § 412 is “a precondition to obtaining a [form
of relief], not a limitation on the [district] court’s jurisdiction.” Espinosa, 130 S.
Ct. at 1378; see also Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237, 1247
(2010). PC Onsite’s reliance on Stenswick v. Bowen, 815 F.2d 519, 521 (9th Cir.
1987), is misplaced, as there the court determined that a magistrate judge lacked
jurisdiction to award attorney fees for work performed in an administrative Social
Security proceeding because a statute expressly reserved such authority for the
Secretary of Health and Human Services. The Supreme Court has recently held
that the other case on which PC Onsite relies, United States v. Walker, 109 U.S.
258 (1883), is no longer controlling because it predated the enactment of Rule
60(b)(4). See Espinosa, 130 S. Ct. at 1379 n.12. Because the judgment is not void
due to a jurisdictional error, the district court did not abuse its discretion in denying
PC Onsite’s Rule 60(b)(4) motion.
Alternatively, the district court did not abuse its discretion in denying PC
Onsite’s motion because the jury made a finding on the timing of the infringement.
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The jury was instructed: “If you find that . . . defendants began to engage in
copyright infringement before November 27, 2002, then you may not award
statutory damages to Dream Games.” “‘The law presumes that jurors carefully
follow the instructions given to them,’ and there is nothing to suggest that they
failed to do so here.” Caudle v. Bristow Optical Co., 224 F.3d 1014, 1023 (9th Cir.
2000) (quoting Wade v. Calderon, 29 F.3d 1312, 1321 (9th Cir. 1994)) (citation
omitted). In its special verdict the jury specifically found that plaintiffs were
entitled to statutory damages. The jury thus implicitly found that infringement
commenced following registration.
AFFIRMED.
4