Basevi, Inc. v. the Acorn Co.

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes that this case is suitable for**
decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Charles R. Breyer, United States District Judge for the***
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BASEVI, INC.,
Plaintiff - Appellant,
v.
THE ACORN CO.,
Defendant - Appellee.
No. 10-55972
D.C. No. 2:08-cv-07145 AHM
(JTLx)
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding
Submitted January 9, 2012**
Pasadena, California
Before: REINHARDT and W. FLETCHER, Circuit Judges, and BREYER,
District Judge.***
FILED
JAN 19 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Plaintiff-Appellant Basevi, Inc. (“Basevi”) appeals from the district court’s
award of attorneys’ fees to Defendant-Appellee The Acorn Company (“Acorn”),
following Acorn’s successful defense of Basevi’s copyright action. We have
jurisdiction pursuant to 28 U.S.C. § 1291 and we affirm.
Basevi argues that the district court abused its discretion in granting
attorneys’ fees to Acorn, because Acorn did not settle the case, instead filing a
successful motion to dismiss and a motion for summary judgment. That argument
has no merit. The Copyright Act gives the district court the discretion to award
reasonable attorneys’ fees “to the prevailing party as part of the costs.” See 17
U.S.C. § 505. The district court properly exercised this discretion and followed
Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 (1994).
That Acorn did not settle is no reason to deny it fees. Although Basevi
blames Acorn for not accepting Basevi’s offer to settle “with a simple affidavit,”
that offer was not made until Basevi was – late – opposing summary judgment. At
that point, Acorn had already spent considerable money defending itself. It might
well have believed that it was likely to prevail on the summary judgment motion it
had already filed, and recover its attorneys’ fees – a benefit not included in
Basevi’s offer. Acorn’s declination to settle was therefore reasonable.

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Nor does Basevi’s characterization of Acorn as being “overzealous,” and
unwilling “to negotiate or enter into settlement discussions” ring true. The parties’
26(f) Report states that, early on, Acorn “offered to settle this matter for a lower
nominal amount [than that proposed by Basevi],” but that Basevi would only settle
if Acorn paid Basevi’s attorneys’ fees. Acorn also participated in a settlement
conference with Basevi. Acorn therefore demonstrated a willingness to settle.
Basevi points to no authority supporting its suggestion that Acorn was obligated to
settle at any cost. Nor can Acorn’s decision to defend itself against a meritless
suit, rather than settling at any cost, fairly be deemed “overzealous[ness].”
In light of the district court’s thorough and reasonable application of
Fogerty, this Court has no “definite and firm conviction” that the district court
committed “clear error” in weighing the relevant factors. See Wall Data Inc. v.
L.A. Cnty. Sheriff’s Dept., 447 F.3d 769, 787 (9th Cir. 2006).
Finally, Basavi argues that the amount of fees sought by Acorn was
unreasonable. Basevi did not raise the issue of the reasonableness of Acorn’s fees
before the district court. Nor has Basevi made any showing that this Court must
review the reasonableness of the fee award in order to prevent a manifest injustice.
He has therefore waived this issue. See Int’l Union of Bricklayers & Allied
Craftsman Local Union No. 20, AFL-CIO et al. v. Martin Jaska, Inc., 752 F.2d

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1401, 1404 (9th Cir. 1985) (“We will not . . . review an issue not raised below
unless necessary to prevent manifest injustice.”).
AFFIRMED.

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