FILED

NOT FOR PUBLICATION

JUN 11 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRIMINAL PRODUCTIONS, INC., No. 18-15919

Plaintiff-Appellant, D.C. No. 2:16-cv-02704-JCM-PAL v.

TRACY CORDOBA, MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Submitted May 14, 2020** Portland, Oregon

Before: BYBEE and VANDYKE, Circuit Judges, and CHHABRIA,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Vince Chhabria, United States District Judge for the Northern District of California, sitting by designation. Plaintiff-Appellant Criminal Productions, Inc. (Criminal) sued Defendant-

Appellee Tracy Cordoba under the Copyright Act of 1976 for allegedly violating

its copyright on the film “Criminal.” After refusing Cordoba’s repeated offers to

cooperate and settle, Criminal voluntarily dismissed its suit against Cordoba.

Cordoba then filed a motion for attorneys’ fees, which the district court granted,

concluding that (1) Cordoba was the “prevailing party” in the litigation and (2)

Cordoba was deserving of attorneys’ fees because of Criminal’s use of

unreasonable litigation tactics.1 We review an award of attorneys’ fees for an

abuse of discretion. Oscar v. Alaska Dep’t of Educ. & Early Dev., 541 F.3d 978,

980–81 (9th Cir. 2008). We review factual determinations underlying a fee award

for clear error and the related legal analysis de novo. Id. at 981. Because we

conclude that Cordoba was not the prevailing party as a matter of law, we reverse.

The Copyright Act of 1976 allows an award of “reasonable attorney’s fee[s]

to the prevailing party.” 17 U.S.C. § 505. For a party to prevail, it must (1) obtain

a “material alteration of the legal relationship of the parties” that is (2) “judicially

1 Cordoba moved for attorneys’ fees under both the Copyright Act and Federal Rule of Civil Procedure 68. The district court only granted attorneys’ fees under the Copyright Act; it did not rule on the Rule 68 motion. Cordoba has likely waived the issue of Rule 68 attorneys’ fees, see Marbled Murrelet v. Babbitt, 83 F.3d 1060, 1066–67 (9th Cir. 1996), but even if she hadn’t, she is not entitled to attorneys’ fees under Rule 68 because Criminal did not obtain final judgment in this case, Fed. R. Civ. P. 68(d). 2 sanctioned.” Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health &

Human Res., 532 U.S. 598, 604–05 (2001). Cordoba has satisfied neither

requirement.

Cordoba did not obtain a material alteration in her legal relationship to

Criminal because the suit against her was dismissed without prejudice. Oscar, 541

F.3d at 981 (“[D]ismissal without prejudice does not alter the legal relationship of

the parties because the defendant remains subject to the risk of re-filing.”).

Cordoba does not contest this fact. Instead, she urges this court to conclude that in

light of the Supreme Court’s recent decision in CRST Van Expedited, Inc. v.

EEOC, 136 S. Ct. 1642 (2016), the material-alteration requirement no longer

applies to defendants seeking attorneys’ fees. But Cordoba misreads that decision.

The Court in CRST held that a party could be a “prevailing party” by obtaining a

non-merits judgment, id. at 1646; it did not hold that the material-alteration

requirement no longer existed. Indeed, post-CRST, the material-alteration

requirement continues to apply. See, e.g., Amphastar Pharm. Inc. v. Aventis

Pharma SA, 856 F.3d 696, 710 (9th Cir. 2017) (asking whether a defendant

seeking attorneys’ fees “won a significant victory and permanently changed the

‘legal relationship of the parties’” (quoting CRST Van Expedited, Inc., 136 S. Ct. at

1646)); Wood v. Burwell, 837 F.3d 969, 974 (9th Cir. 2016) (analyzing whether a

3 plaintiff seeking attorneys’ fees obtained “a material alteration in the parties’ legal

relationship”). Cordoba did not satisfy this requirement, and so she may not be

considered the prevailing party.

Alternatively, Cordoba cannot be considered the prevailing party because

the resolution of the suit against her was not “judicially sanctioned.” Buckhannon,

532 U.S. at 605. “[A] party must have a judgment or something similar formally

delivered in its favor to be considered ‘prevailing.’” Citizens for Better Forestry v.

U.S. Dep’t of Agric., 567 F.3d 1128, 1131 (9th Cir. 2009) (emphasis in original).

Here, Criminal voluntarily dismissed its suit against Cordoba without judicial

involvement. See Wilson v. City of San Jose, 111 F.3d 688, 692 (9th Cir. 1997)

(holding that voluntary dismissal “is effective on filing and no court order is

required” to effectuate it). Thus, Cordoba has also failed to satisfy the second

Buckhannon requirement, and for this independent reason, she may not be

considered the prevailing party.

Because she was not the prevailing party, Cordoba was not entitled to

attorneys’ fees under the Copyright Act.2

2 We note that if the district court believes that Criminal otherwise engaged in litigation misconduct, it may pursue other avenues—including sanctions—to rectify any harm this misconduct may have caused. We express no opinion on this matter. 4

REVERSED.

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