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`UNITED STATES COURT OF APPEALS
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`FOR THE NINTH CIRCUIT
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`FILED
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`NOV 6 2023
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`MOLLY C. DWYER, CLERK
`U.S. COURT OF APPEALS
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`MICHAEL S. TRAYLOR,
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` v.
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`U.S. SMALL BUSINESS ASSOCIATION
`ET AL.,
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`Plaintiffs’ Former Counsel-
`Appellant,
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` No. 21-56093
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`D.C. No. 5:20-cv-01280-SVW-KK
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`MEMORANDUM*
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`Defendant-Appellee.
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`Appeal from the United States District Court
`for the Central District of California
`Stephen V. Wilson, District Judge, Presiding
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`Submitted on October 17, 2023
`Pasadena, California
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`Before: PAEZ and H.A. THOMAS, Circuit Judges, and RAKOFF, District Judge.**
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`This is an appeal from the grant of summary judgment and award of attorney’s
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`fees in a case brought under the Copyright Act. The district court initially granted
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`the motions for summary judgment of defendants Al Gohary and the Orange County
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`*
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`This disposition is not appropriate for publication and is not precedent
`except as provided by Ninth Circuit Rule 36-3.
`
`**
`The Honorable Jed S. Rakoff, United States District Judge for the
`Southern District of New York, sitting by designation.
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`
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`Inland Empire Small Business Development Center Network (“OCIE”) based upon
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`the failure of plaintiffs Lethia Davis and her company, Beautiful Minds
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`Entrepreneurship, Inc., to provide the district court with a copy of the copyrighted
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`works that were purportedly infringed. Plaintiffs filed a motion for reconsideration
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`attaching one of the three allegedly infringed works. The district court denied that
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`motion, finding, among other things, that even if the work had been included with
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`the prior motion, it would not have changed the court’s conclusion. The district court
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`then ordered plaintiffs to pay defendants’ attorney’s fees pursuant to 17 U.S.C. § 505
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`and, sua sponte, issued an order to show cause why plaintiffs’ attorney—Michael
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`Traylor—should not be held liable for a portion of the fee award pursuant to 28
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`U.S.C. § 1927. The district court ultimately awarded Gohary $75,424.50 in
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`attorney’s fees, of which Traylor was held liable for $31,006, and awarded OCIE
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`$75,613.13 in attorney’s fees, of which Traylor was held liable for $71,056.13.
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`Traylor is the only party remaining in this appeal. For the reasons set forth below,
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`we affirm the district court’s grant of summary judgment and award of attorney’s
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`fees.
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`Traylor first argues that the district court erred in granting defendants’
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`motions for summary judgment and denying plaintiffs’ motion for reconsideration.
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`Without these purportedly erroneous rulings, Traylor argues, no attorney’s fee award
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`could have been entered against him. We review a grant of summary judgment de
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`2
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`21-56093
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`novo, and a denial of a motion for reconsideration for abuse of discretion. See
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`Airlines for Am. v. City & Cnty. of San Francisco, 78 F.4th 1146, 1151 (9th Cir.
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`2023) (summary judgment); Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207,
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`1211 (9th Cir. 2012) (FRCP 60(b)); Smith v. Pac. Props. & Dev. Corp., 358 F.3d
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`1097, 1100 (9th Cir. 2004) (FRCP 59(e)).
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`“Proof of copyright infringement requires [the plaintiff] to show: (1) that he
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`owns a valid copyright in [the work]; and (2) that [the defendant] copied protected
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`aspects of the work.” Skidmore v. Led Zeppelin, 952 F.3d 1051, 1064 (9th Cir.
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`2020) (en banc). A plaintiff “can attempt to prove [copying] circumstantially by
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`showing that the defendant had access to the plaintiff’s work and that the two
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`works share similarities probative of copying.” Id. (quoting Rentmeester v. Nike,
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`Inc., 883 F.3d 1111, 1117 (9th Cir. 2018)).
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`To support their motions for summary judgment, defendants put forward
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`substantial evidence that they did not copy the allegedly infringed work, including
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`declarations that they had not seen the infringed work prior to the litigation, did not
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`have access to the infringed work, and created the purportedly infringing work years
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`before the creation of the allegedly infringed work. At this point, the burden shifted
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`to plaintiffs to demonstrate a genuine dispute of material fact. See Celotex Corp. v.
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`Catrett, 477 U.S. 317, 322–23 (1986).
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`3
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`21-56093
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`In response, plaintiffs argued that access to the copyrighted works combined
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`with their substantial similarity to the infringing work was sufficient to satisfy the
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`element of copying. But plaintiffs failed to actually identify or provide the district
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`court with a copy of any work that was purportedly infringed, and thus the district
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`court correctly concluded that no reasonable juror could evaluate whether the work
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`was substantially similar such that it was copied.1 And when an allegedly infringed
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`work was submitted with plaintiffs’ motion for reconsideration, it became clear that
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`the infringed and infringing works were, as the district court ultimately held, “not
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`remotely similar.” Further, plaintiffs’ only evidence of defendants’ access to the
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`infringed work was the bare assertion that the work was available on plaintiffs’
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`website, which was insufficient to create a dispute of fact as to access in the face of
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`defendants’ contrary evidence. See Art Attacks Ink, LLC v. MGA Ent. Inc., 581 F.3d
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`1138, 1143 (9th Cir. 2009) (“To prove access, a plaintiff must show a reasonable
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`possibility, not merely a bare possibility, that an alleged infringer had the chance to
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`view the protected work.”). Accordingly, the district court did not err in granting
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`1
`On appeal, Traylor asserts that the allegedly infringed work was attached as
`an exhibit to a deposition transcript filed in support of OCIE’s motion for summary
`judgment. But the PowerPoint slides Traylor cites are the allegedly infringing work
`created by Gohary, not the infringed work purportedly created by plaintiffs. The fact
`that, even on appeal, Traylor is unable to clearly identify what work was purportedly
`infringed further demonstrates the correctness of the district court’s rulings.
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`4
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`defendants’ motions for summary judgment and denying plaintiffs’ motion for
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`reconsideration.
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` Traylor next argues that the district court erred by awarding attorney’s fees
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`pursuant to the Copyright Act. See 17 U.S.C. § 505. The Copyright Act “grants
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`courts wide latitude to award attorney’s fees based on the totality of circumstances
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`in a case.” Kirtsaeng v. John Wiley & Sons, Inc., 579 U.S. 197, 203 (2016). Such an
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`award is reviewed for abuse of discretion. See Maljack Prods., Inc. v. GoodTimes
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`Home Video Corp., 81 F.3d 881, 889 (9th Cir. 1996). Here, the district court
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`correctly identified the six non-exclusive factors to be considered and found that
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`each weighed in favor of awarding attorney’s fees. Traylor simply asserts that the
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`district court was wrong in making these findings but offers no real explanation as
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`to why this is so. Accordingly, we hold that the district court’s award of attorney’s
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`fees was not an abuse of discretion.
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`Finally, Traylor argues that the district court abused its discretion by requiring
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`him to personally satisfy a portion of the attorney’s fee award as a sanction.
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`Imposition of sanctions pursuant to 28 U.S.C. § 1927 is appropriate “when an
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`attorney knowingly or recklessly raises a frivolous argument, or argues a meritorious
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`claim for the purpose of harassing an opponent.” B.K.B. v. Maui Police Dep’t, 276
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`F.3d 1091, 1107 (9th Cir. 2002) (quoting In re Keegan Mgmt. Co., Sec. Litig., 78
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`5
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`F.3d 431, 436 (9th Cir. 1996)). We review such an award for abuse of discretion.
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`See Wages v. I.R.S., 915 F.2d 1230, 1235 (9th Cir. 1990).
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`The district court’s imposition of sanctions was supported by substantial
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`evidence in the record. The district court found that Traylor never produced two of
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`the three allegedly copyrighted works that form the basis of this litigation, produced
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`the third over a year after the case was commenced, and continued to litigate the case
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`even though the work Traylor produced was nothing like the allegedly infringing
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`work. From this, the district court concluded that “Traylor either deliberately refused
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`to produce the alleged ‘works’ at the heart of this case or . . . he deliberately
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`continued to litigate long after it became clear the ‘works’ never existed in the first
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`place. In either scenario, his conduct is unreasonable and vexatious . . . [and] evinces
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`bad faith.”
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`The district court also identified numerous other instances of unreasonable
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`conduct by Traylor. For example, Gohary had previously sought and obtained
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`summary judgment because Traylor failed to respond to certain requests for
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`admission that were then deemed admitted. The district court granted plaintiffs’ first
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`motion for relief from judgment based on Traylor’s representation that then-
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`unserved defendant OCIE had critical information. Traylor promised to “pursue this
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`matter with diligence” going forward, but then made no attempt to depose OCIE and
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`obtained no useful evidence from OCIE.
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`6
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`To date, Traylor has offered no valid explanation for the conduct described in
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`the district court’s sanctions order. Instead, he argues on appeal that the positions he
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`raised in the litigation were not entirely frivolous, and so sanctions were
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`inappropriate absent a finding of an intent to harass. See B.K.B., 276 F.3d at 1107
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`(“[R]eckless nonfrivolous filings, without more, may not be sanctioned.”). But even
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`assuming arguendo that the case was not entirely frivolous from the outset and that
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`at least some of the litigation positions Traylor initially advanced were non-
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`frivolous, this fact is reflected in the fee award, which required Traylor only to pay
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`those fees incurred after the district court granted plaintiffs’ first motion for relief
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`from judgment. The district court did not abuse its discretion in concluding Traylor’s
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`conduct past that point “multiplie[d] the proceedings in [this] case unreasonably and
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`vexatiously.” 28 U.S.C. § 1927.
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`AFFIRMED.
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`7
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`21-56093
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