FILED
NOT FOR PUBLICATION NOV 13 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARGARET MORRIS, an individual, No. 11-56248
Plaintiff-counter-defendant - D.C. No. 2:08-cv-05321-RSWL-
Appellant, JC
v.
MEMORANDUM*
KENNETH ATCHITY, an individual;
ATCHITY ENTERTAINMENT
INTERNATIONAL, a business entity
form unknown; SONIC AGE LTD., a
United Kingdom corporation; THE
WRITER’S LIFELINE, INC., a Delaware
corporation,
Defendants-counter-claimants
- Appellees.
MARGARET MORRIS, an individual, No. 11-56829
Plaintiff-counter-defendant - D.C. No. 2:08-cv-05321-RSWL-
Appellee, JC
v.
KENNETH ATCHITY, an individual;
ATCHITY ENTERTAINMENT
INTERNATIONAL, a business entity
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
form unknown; SONIC AGE LTD., a
United Kingdom corporation; THE
WRITER’S LIFELINE, INC., a Delaware
corporation,
Defendants-counter-claimants
- Appellants.
Appeals from the United States District Court
for the Central District of California
Ronald S.W. Lew, Senior District Judge, Presiding
Argued and Submitted November 5, 2013
Pasadena, California
Before: O’SCANNLAIN, GRABER, and BEA, Circuit Judges.
Plaintiff Margaret Morris appeals, and Defendants Kenneth Atchity, The
Writer’s Lifeline, Atchity Entertainment International, and Sonic Age Limited
cross-appeal, from the judgment following a jury trial in this case involving
copyright and related claims. We affirm.
1. The district court did not abuse its discretion, Leong v. Potter, 347 F.3d
1117, 1125 (9th Cir. 2003), in striking Plaintiff’s motion for a protective order with
respect to her manuscript, for failure to comply with the local rules. Moreover,
even assuming that the district court should have considered the motion on the
merits, Plaintiff failed to overcome the strong presumption in favor of public
access to court records.
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2. The district court did not abuse its discretion, id., in denying Plaintiff’s
motion to seal the entire case, because Plaintiff failed to allege any harm, broad or
otherwise, that would overcome the strong presumption of Federal Rule of Civil
Procedure 26(c) against removing a four-year-old case from the public domain.
Beckman Indus., Inc. v. Int’l Ins. Co., 966 F.2d 470, 476 (9th Cir. 1992).
3. On de novo review, Wood v. City of San Diego, 678 F.3d 1075, 1080
(9th Cir. 2012), we hold that the district court properly dismissed the sixth and
tenth claims as preempted by the Copyright Act. Neither claim contained an extra
element beyond those required to state a claim for infringement. Grosso v.
Miramax Film Corp., 383 F.3d 965, 968 (9th Cir. 2004), as amended, 400 F.3d 658
(9th Cir. 2005). Moreover, the available remedies would have duplicated those
awarded on Plaintiff’s successful claim for breach of an implied contract.
4. The district court did not abuse its discretion, United States v. Anekwu,
695 F.3d 967, 981–82 (9th Cir. 2012), cert. denied, 133 S. Ct. 2379 (2013), in
excluding the summary chart that Plaintiff offered at trial. The court permissibly
allowed the use of the chart, instead, as a pedagogical device to illustrate Plaintiff’s
testimony. United States v. Wood, 943 F.2d 1048, 1053 (9th Cir. 1991).
5. The district court did not abuse its discretion in denying Plaintiff’s
Federal Rule of Civil Procedure 60(b)(3) motion because Plaintiff failed to meet
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her burden to show, by clear and convincing evidence, that the verdict was
obtained through fraud or misconduct. De Saracho v. Custom Food Mach., Inc.,
206 F.3d 874, 880 (9th Cir. 2000).
6. The district court did not err in denying Defendants’ motion for judgment
as a matter of law on the seventh claim. We review that ruling for substantial
evidence. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999).
Plaintiff pleaded and proved the "extra element" of an implied contract claim, that
is, an implied promise to pay, sufficient to state a Desny v. Wilder, 299 P.2d 257
(Cal. 1956), claim. Substantial evidence also supported the jury’s award of
$70,000 to Plaintiff. Marsu, B.V. v. Walt Disney Co., 185 F.3d 932, 938–39 (9th
Cir. 1999).
7. The district court did not abuse its discretion, Wall Data Inc. v. L.A.
Cnty. Sheriff’s Dep’t, 447 F.3d 769, 787 (9th Cir. 2006), in denying attorney fees
to Defendants on the copyright claim. The court properly weighed the Fogerty v.
Fantasy, Inc., 510 U.S. 517 (1994), factors.
AFFIRMED.
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