NOT FOR PUBLICATION FILED

AUG 7 2025

UNITED STATES COURT OF APPEALS

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENTERPRISE MANAGEMENT No. 24-4327 LIMITED, INC.; Doctor MARY LIPPITT, D.C. No. 2:19-cv-01458-DWC Plaintiffs - Appellants,

v. MEMORANDUM *

CONSTRUX SOFTWARE BUILDERS,

INC.; STEVEN C. MCCONNELL,

Defendants - Appellees.

Appeal from the United States District Court for the Western District of Washington David W. Christel, Magistrate Judge, Presiding

Argued and Submitted July 11, 2025 Seattle, Washington

Before: PAEZ and SANCHEZ, Circuit Judges, and SELNA, District Judge. **

Dr. Mary Lippitt and Enterprise Management Limited (collectively,

“Lippitt”) brought a copyright-infringement action against Steve McConnell and

his company, Construx Software Builders, (collectively, “McConnell”) for copying

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James V. Selna, United States District Judge for the Central District of California, sitting by designation. her charts on strategic problem-solving. The jury found non-willful copyright

infringement and awarded Lippitt $8,000 in damages. Lippitt appealed the district

court’s decision to (1) refuse supplemental jury instructions to cure alleged

misstatements in McConnell’s closing statement, (2) exclude any testimony at trial

relating to a Tenth Circuit decision in Enter. Mgmt. Ltd., Inc. v. Warrick

(“Warrick”), 717 F.3d 1112 (10th Cir. 2013), and (3) deny Lippitt’s request for

attorneys’ fees.

We review the formulation of jury instructions for abuse of discretion.

Jazzabi v. Allstate Ins. Co., 278 F.3d 979, 982 (9th Cir. 2002). We give

“considerable deference” to the district court’s decision to exclude evidence,

reviewing for abuse of discretion. United States v. Cordoba, 194 F.3d 1053, 1063

(9th Cir. 1999) (citation and quotation marks omitted); United States v. Ramirez,

176 F.3d 1179, 1182 (9th Cir. 1999). We also review for abuse of discretion the

district court’s decision to deny attorneys’ fees. Fantasy, Inc. v. Fogerty, 94 F.3d

553, 556 (9th Cir. 1996). We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. The district court did not err by declining to give supplemental jury

instructions clarifying the parties’ respective burdens for proving damages under

17 U.S.C. § 504(b). A plaintiff in a copyright action is entitled to recover either

the actual damages and the infringer’s profits under Section 504(b), or statutory

2 24-4327 damages under Section 504(c). 17 U.S.C. § 504(a). Since Lippitt elected to

recover statutory damages, any instructions clarifying the burden-shifting

framework in Section 504(b) was unnecessary.

2. The district court properly excluded any references to Warrick by

conducting the requisite Rule 403 balancing test. Lippitt first sought to use the

case to corroborate that there was a publicly available means of confirming her

authorship. The district court weighed the probative value of the Warrick decision

and determined that the distinct procedural and substantive posture of Warrick

would create a “real risk under the rules of evidence about confusion.” The

Warrick opinion concerned a motion for summary judgment, Warrick, 717 F.3d at

1116, and the parties settled after the appeal. Unlike this case where the

registration and copyright infringement of the Managing Chart were key issues, the

defendant in Warrick acknowledged that Lippitt had registered her chart and he

had copied her diagrams. Compare Enter. Mgmt. Ltd., Inc. v. Construx Software

Builders, Inc., 73 F.4th 1048, 1059 (9th Cir. 2023), with Warrick, 717 F.3d at

1120. Lippitt later proffered to use Warrick to show that McConnell had read the

Warrick decision and thereby knowingly infringed on her charts. The district court

again determined that allowing even a piece of the Warrick opinion would

necessarily require the parties to explain the facts and the issues in Warrick, which

is “a completely different case than this case . . . .”

3 24-4327 Because “the record as a whole” reflects that the district court adequately

weighed the probative value and prejudicial effect of the evidence, there was no

abuse of discretion. United States v. Sangrey, 586 F.2d 1312, 1315 (9th Cir. 1978)

(finding that, in such a situation, it is unnecessary for courts to engage in a

“mechanical recitation” of Rule 403’s formula).

3. An award of attorneys’ fees to the prevailing party is a matter of

discretion. Fogerty v. Fantasy, Inc., 510 U.S. 517, 533–34 (1994) (holding that the

plain language of 17 U.S.C. § 505 supports district courts’ discretion in awarding

fees). The district court articulated all the factors in declining to award attorneys’

fees: the degree of success obtained, whether the claims were frivolous or

objectively unreasonable, the need for deterrence and compensation, the chilling

effect of attorneys’ fees, and whether awarding fees would further the purposes of

the Copyright Act. Perfect 10, Inc. v. Giganews, Inc., 847 F.3d 657, 675 (9th Cir.

2017) (articulating factors to guide a district court’s exercise of discretion); Love v.

Associated Newspapers, Ltd., 611 F.3d 601, 614 (9th Cir. 2010) (same). Though

the district court could have weighed Lippitt’s success differently under the

circumstances, there was no abuse of discretion or error of law in denying an

award of fees to Lippitt.

AFFIRMED.

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