Rene Carranza v. Universal Music Group, Inc. , 536 F. App'x 734 ( 2013 )

FILED
NOT FOR PUBLICATION AUG 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RENE CARRANZA, No. 11-55782
Plaintiff - Appellant, D.C. No. 2:09-cv-03604-GW-CW
v.
MEMORANDUM *
UNIVERSAL MUSIC GROUP, INC., a
Delaware corporation; et al.,
Defendants - Appellees,
UNIVISION.COM; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted July 24, 2013 **
Before: ALARCÓN, CLIFTON, and CALLAHAN, Circuit Judges.
Rene Carranza appeals pro se from the district court’s summary judgment
*
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).
and damages award on his copyright infringement claims against defendants
Universal Music Group, Inc. and its affiliates (the “Universal Defendants”). We
have jurisdiction under 28 U.S.C. § 1291. We review de novo summary judgment,
White v. City of Sparks, 500 F.3d 953, 955 (9th Cir. 2007), and for clear error an
actual damages award, Jarvis v. K2 Inc., 486 F.3d 526, 529 (9th Cir. 2007). We
affirm.
After denying summary judgment on the liability portion of Carranza’s
direct infringement claim, the district court properly limited Carranza’s recovery to
his actual damages and the Universal Defendants’ profits because he was not
entitled to statutory damages, attorney’s fees, or punitive damages. See 17 U.S.C.
§ 412 (prohibiting statutory damages and attorney’s fees if the work is not
registered before infringement commences, or within three months of the work’s
first publication); Polar Bear Prods., Inc. v. Timex Corp., 384 F.3d 700, 708 n.5
(9th Cir. 2004) (where statutory damages are unavailable, a plaintiff can recover
only its actual damages as a result of the infringement and defendant’s profits from
the infringement); L.A. News Serv. v. Reuters Television Int’l, Ltd., 149 F.3d 987,
996 (9th Cir. 1998) (statutory damages serve punitive purpose, and are recoverable
to sanction and vindicate the Copyright Act’s policy of discouraging infringement).
The district court did not clearly err in limiting Carranza’s damages to the
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Universal Defendants’ gross revenues from the sale of Carranza’s album because
Carranza failed to establish that he suffered any additional actual damages as a
result of the infringement. See 17 U.S.C. § 504(b) (copyright owner can establish
actual damages suffered “as a result of the infringement” and profits of the
infringer “attributable to the infringement” based on proof of gross revenues).
The district court did not abuse its discretion in denying Carranza leave to
file a fourth amended complaint because, even assuming that his proposed contract
claim was timely under the doctrine of equitable tolling, Carranza failed to attach
the proposed amended complaint or establish good cause for his undue delay in
seeking to amend. See Chodos v. West Publ’g Co., 292 F.3d 992, 1003 (9th Cir.
2002) (setting forth standard of review and factors relevant to a motion to amend).
The district court did not abuse its discretion in denying Carranza’s request
for the return of his original master and related materials because Carranza failed
to establish that the materials, which he provided to the direct infringer, were in the
possession of the Universal Defendants. See Citizens for Clean Gov’t v. City of
San Diego, 474 F.3d 647, 650 (9th Cir. 2007) (setting forth standard of review).
Issues raised for the first time in Carranza’s reply brief regarding his former
counsel’s alleged pre-litigation discussions with defense counsel are deemed
waived. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
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We decline to address Carranza’s arguments regarding summary judgment
on his vicarious and contributory infringement claims because these alternative
theories would not entitle Carranza to any additional damages that are not already
encompassed by the damages award on his direct infringement claim.
Carranza’s contentions regarding the denial of his constitutional right to a
jury trial, the flooding of the Spanish market with pre-sold copies of his album, the
allegedly binding promises made by employees of the Universal Defendants, the
calculation of damages based on expenses he incurred before the infringement, and
alleged unspecified inaccuracies in his deposition transcript are unpersuasive.
AFFIRMED.
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