Amaretto Ranch Breedables, LLC v. Ozimals, Inc.

Filing 190

ORDER by Judge Charles R. Breyer denying 182 Motion for Attorney Fees (crblc2, COURT STAFF) (Filed on 9/16/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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United States District Court
For the Northern District of California

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ORDER DENYING MOTION FOR
FEES

Plaintiff,

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No. C 10-05696 CRB

AMARETTO RANCH BREEDABLES,
LLC,

v.
OZIMALS, INC, et al.,
Defendants.

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This case began as a copyright dispute between business competitors who sell virtual
animals in an online simulated world known as Second Life. Plaintiff/Counterclaim
Defendant Amaretto Ranch Breedables’ (“Amaretto”) sells virtual horses.
Defendant/Counterclaim Plaintiff Ozimals, Inc. (“Ozimals”) sells virtual bunnies.
In November 2012, the Court granted Amaretto’s motion for summary judgment as to
Ozimals’ copyright infringement counterclaim and ruled that both parties lacked standing to
pursue their claims. Order (dkt. 146). In July 2013, the Court granted Ozimal’s motion for
summary judgment on Amaretto’s trade libel, intentional interference with prospective
business advantage, and unfair competition claims. Order (dkt. 174). The Court entered
judgement in favor of Defendants on Plaintiff’s claims, and entered judgment in favor of
Plaintiff on Defendants’ counterclaim. Judgment (dkt. 175).
Now pending before the Court is Plaintiff and Counterclaim Defendant Amaretto
Ranch Breedables, LLC’s motion for attorneys’ fees and costs. Mot. for Fees (dkt. 182).

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Under the Copyright Act, “the court in its discretion may allow the recovery of full costs”
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and “a reasonable attorney’s fee to the prevailing party.” 17 U.S.C. § 505. In determining whether
to award fees, the court may consider a number of non-exclusive factors, including the degree of

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success obtained by the moving party, the frivolousness of any claims, the motivation for the claims,

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the objective reasonableness of the factual and legal arguments advanced in support of them and the

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need for compensation and deterrence. See Fantasy, Inc. v. Fogerty, 94 F.3d 553, 558 (9th Cir.

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1996) (Fogerty II) (citing Fogerty v. Fantasy, Inc., 510 U.S. 517, 535 n.19) (Fogerty I). “The most

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important factor in determining whether to award fees under the Copyright Act[], is whether an

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award will further the purposes of the Act.” Mattel, Inc. v. MGA Entertainment, Inc., 705 F.3d

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1108, 1111 (9th Cir. 2013) (citing Fogerty II, 94 F.3d at 558).

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Here, the Court has carefully considered all of these factors and finds that awarding
fees is inappropriate. The Court found that both parties lacked standing to pursue their

United States District Court
For the Northern District of California

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claims. Order (dkt. 146). Neither party can be fairly characterized as the “prevailing” party

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since both sides failed to establish standing to pursue their claims. “When the plaintiff as

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well as the defendant have lost on significant issues, courts have generally awarded ‘no

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costs.’” Shum v. Intel Corp., 629 F.3d 1360, 1373 (Fed. Cir. 2010). Where, as here, “a

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defendant counterclaims for affirmative relief and neither party prevails on its claim, it is

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quite appropriate to deny costs to both parties.” Kropp v. Ziebarth, 601 F.2d 1348, 1358 n. 27

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(8th Cir. 1979). The Ninth Circuit agrees. See, e.g., United States v. Safeco Ins. Co. of Am.,

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116 F.3d 487 (9th Cir. 1997) (holding that it is within the district court’s discretion to deny

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fees when neither party prevails). Therefore, the motion is DENIED.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: September 16, 2013

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