FILED
NOT FOR PUBLICATION NOV 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DISNEY ENTERPRISES, INC., No. 10-56782
Plaintiff - Appellee, D.C. No. 2:02-CV-08508-JFW-
PLA
v.
STEPHEN SLESINGER, INC., MEMORANDUM*
Defendant - Appellant.
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted November 5, 2012
Pasadena, California
Before: D.W. NELSON and O’SCANNLAIN, Circuit Judges, and GONZALEZ,
Chief District Judge.**
Stephen Slesinger, Inc. (“SSI”) appeals the district court’s denial of its
motion for attorney’s fees under the Copyright Act. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Irma E. Gonzalez, District Judge for the U.S. District
Court for Southern California, sitting by designation.
U.S.C. § 1291, and, reviewing the district court’s order for an abuse of discretion,
Ets-Hokin v. Skyy Spirits Inc., 323 F.3d 763, 766 (9th Cir. 2003), we affirm.
The district court did not err when it ruled on SSI’s fee application without
holding a hearing. The rules only require that a district court give the parties
“notice and an opportunity to be heard,” Fed. R. Civ. P. 53(f)(1), which “does not
require an oral or evidentiary hearing on the issue.” Pac. Harbor Capital, Inc. v.
Carnival Air Lines, Inc., 210 F.3d 1112, 1118 (9th Cir. 2000). And the district
court’s reference order to the Special Master merely clarified that the court, and not
the parties, would set hearings on objections or motions stemming from the Special
Master’s report and recommendations.
Nor did the district err by failing to give SSI the opportunity to respond to
Disney Enterprises, Inc.’s (“Disney”) objections to the Special Master’s report and
recommendations. SSI never sought leave from the district court to respond to
Disney’s objections. But even if it had, a party is entitled to object to a master’s
report, but not to respond to a counterparty’s objections. Fed. R. Civ. P. 53(f)(2).
Finally, the district court did not abuse its discretion when it rejected the
Special Master’s recommendation that SSI be permitted to submit additional
billing records and denied SSI’s fee application in its entirety. “[T]he fee applicant
bears the burden of establishing entitlement to an award and documenting the
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appropriate hours expended and hourly rates.” Hensley v. Eckerhart, 461 U.S. 424,
437 (1983). Here, the district court reviewed the Special Master’s Report and
Recommendation, examined SSI’s fee application, and concluded that SSI had
failed to carry its burden because the application was “vague and overreaching.”
This conclusion was within the district court’s “broad discretion.” Petrella v.
Metro-Goldwyn-Mayer, Inc., 695 F.3d 946, 957 (9th Cir. 2012).
Relying on The Traditional Cat Ass’n v. Gilbreath, 340 F.3d 829 (9th Cir.
2003), SSI argues that it is always an abuse of discretion for a district court to
“den[y] fees altogether rather than making an attempt to apportion fees between the
copyright and non-copyright claims.” Id. at 834. But the district court in Gilbreath
concluded that the defendants were substantively entitled to fees before it denied
the fee application for want of documentation. Here, by contrast, neither the
Special Master nor the district court held that SSI was substantively entitled to a
fee award.
AFFIRMED.
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