FILED
NOT FOR PUBLICATION JAN 29 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
In the Matter of: BASHAS’ INC., No. 13-16414
Debtor, D.C. No. 2:12-cv-01497-FJM
ROBERT KUBICEK ARCHITECTS & MEMORANDUM*
ASSOCIATES, INCORPORATED,
Plaintiff - Appellant,
v.
BASHAS’ INCORPORATED,
Defendant - Appellee.
In the Matter of: BASHAS’ INC., No. 13-17061
Debtor, D.C. No. 2:12-cv-01497-FJM
ROBERT KUBICEK ARCHITECTS &
ASSOCIATES, INCORPORATED,
Plaintiff - Appellant,
v.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
page 2
BASHAS’ INCORPORATED,
Defendant - Appellee.
Appeals from the United States District Court
for the District of Arizona
Frederick J. Martone, Senior District Judge, Presiding
Submitted December 9, 2015**
San Francisco, California
Before: KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.
1. The district court didn’t err in dismissing Robert Kubicek Architects &
Associates, Inc.’s (“RKAA”) copyright infringement claims. Given the jury
verdict in favor of The Bosley Group, Inc. (“TBG”), the issues presented in
RKAA’s claims against Bashas’ for contributory infringement and vicarious
liability are precluded. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir.
1988). Further, the district court in the Bosley case found that RKAA had failed to
present any “evidence of direct infringement by Bashas’,” and thus granted
summary judgment to TBG on RKAA’s contributory infringement claim against
TBG. RKAA didn’t challenge this ruling, therefore the issue of direct
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
page 3
infringement by Bashas’ is also precluded. Id. at 322. Because all of RKAA’s
claims under the Copyright Act fail, its request for injunctive relief under 17
U.S.C. §§ 502 & 503 also fails.
The issues raised by RKAA’s state-law unjust enrichment and conversion
claims, however, aren’t precluded. The bankruptcy court discharged all pre-
petition unjust enrichment claims because they were claims seeking a “right to
payment.” 11 U.S.C. § 101(5). Thus, the district court correctly dismissed the
unjust enrichment claim because there are “no allegations that would support a
claim for post-petition infringement.” See Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007). But RKAA’s conversion claim is not a “claim” under Chapter 11
because it doesn’t seek a “right to payment” or an “equitable remedy” giving “rise
to a right to payment.” 11 U.S.C. § 101(5). Therefore, the bankruptcy court
couldn’t have discharged this claim under 11 U.S.C. § 1141(d). We thus reverse
the district court’s dismissal of the conversion claim and remand for further
proceedings. On remand, the district court shall determine whether to exercise
supplemental jurisdiction over this state-law claim. 28 U.S.C. § 1367(c).
2. The district court didn’t abuse its discretion in denying RKAA’s motion
to reconsider its ruling on the Copyright Act and unjust enrichment claims. The
page 4
dismissal was neither clearly erroneous nor manifestly unjust, and RKAA didn’t
present “newly discovered evidence.” Smith v. Clark Cty. Sch. Dist., 727 F.3d
950, 955 (9th Cir. 2013). The evidence RKAA did present wasn’t “new” because
it could have been discovered with “reasonable diligence.” Fed. R. Civ. P.
60(b)(2).
3. The district court’s award of attorneys’ fees wasn’t “based on an
inaccurate view” of the Lieb factors. Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556
(9th Cir. 1996). The Lieb factors “are not exclusive and need not all be met.” Id.
at 558. Further, the district court’s finding of objective unreasonableness wasn’t
clearly erroneous. Therefore, the court didn’t abuse its discretion in granting
attorneys’ fees. See id. at 556.
4. We award Bashas’ the attorneys’ fees it incurred in defending this appeal.
“[F]ees are warranted under § 505 inasmuch as it served the purposes of the
Copyright Act for [Bashas’] to defend an appeal so that the district court’s fee
award would not be taken away from [it].” Id. at 561. We refer the determination
of an appropriate amount of attorneys’ fees and costs to the Appellate
Commissioner, who shall have authority to enter an order awarding fees to
Appellee.
page 5
AFFIRMED in part, REVERSED in part and REMANDED. Costs to
Bashas’.