FILED

NOT FOR PUBLICATION

MAR 18 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

STRIKE 3 HOLDINGS LLC, a Delaware No. 20-35196 corporation, D.C. No. 2:17-cv-01731-TSZ Plaintiff-Appellant,

v. MEMORANDUM*

JOHN DOE, subscriber assigned IP address 73.225.38.130,

Defendant-Appellee,

and

TOBIAS FIESER, Third-Party Witness; et al.,

Real-party-in-interest.

Appeal from the United States District Court for the Western District of Washington Thomas S. Zilly, District Judge, Presiding

Argued and Submitted March 3, 2021 Seattle, Washington

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: RAWLINSON and BYBEE, Circuit Judges, and ENGLAND,** District Judge.

Strike 3 Holdings, LLC appeals the district court’s award of attorney’s fees

in favor of John Doe on Doe’s counterclaim for non-infringement. Strike 3 argues

that Doe lacked standing to pursue his counterclaim because Strike 3 voluntarily

dismissed its copyright infringement claim against Doe and could not renew that

claim in the future. Strike 3 also contends that the district court abused its

discretion by awarding fees under the Copyright Act, 17 U.S.C. § 505, because the

fee award did not further the Act’s essential goals. The district court had

jurisdiction under 28 U.S.C. §§ 1331, 1338(a). We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

Contrary to Strike 3’s argument, the district court correctly held that Doe

retained standing to pursue his declaratory relief counterclaim despite Strike 3

voluntarily dismissing its complaint without prejudice. We review the district

court’s standing determination de novo. Mayfield v. United States, 599 F.3d 964,

970 (9th Cir. 2010). Standing for declaratory relief requires a similar showing as

any other case or controversy. See MedImmune, Inc. v. Genentech, 549 U.S. 118,

126–27 (2007) (citations omitted). The party seeking declaratory relief must

** The Honorable Morrison C. England, Jr., Senior United States District Judge for the Eastern District of California, sitting by designation. 2 demonstrate (1) a concrete and imminent injury, (2) that is causally connected to

the defendant’s actions, (3) which could be redressed by a favorable decision. See

id.; Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992). Strike 3 challenges

only the first of those requirements: that Doe cannot demonstrate a concrete and

imminent injury.

The pending litigation between Doe and Strike 3, coupled with the real

threat of future litigation between the parties, constitutes the type of injury that

confers constitutional standing. See Societe de Conditionnement en Aluminium v.

Hunter Eng’g Co., Inc., 655 F.2d 938, 944 (9th Cir. 1981) (finding a case or

controversy where declaratory relief plaintiff had “real and reasonable

apprehension” of future suit). Strike 3’s voluntary dismissal of its infringement

claims against Doe placed him in the precarious position of deciding whether to

pursue his non-infringement counterclaim or to surrender the claim and hope that

Strike 3 would not bring further action based his prior alleged infringement. And

while Strike 3 enjoyed the “absolute right” to dismiss its infringement claim under

Federal Rule Civil Procedure 41(a)(1), Am. Soccer Co., Inc. v. Score First Enters.,

187 F.3d 1108, 1110 (9th Cir. 1999), it did not have the absolute right to choose

the consequences of its without-prejudice dismissal. Doe’s fear of future

3 prosecution, based on the very real prosecution to that point and the thinly veiled

threats of future contributory-infringement claims, was concrete and imminent.

Nor are we persuaded by Strike 3’s claim that Cobbler Nevada, LLC v.

Gonzalez, 901 F.3d 1142, 1147 (9th Cir. 2018) or Strike 3’s proposed covenant not

to sue rendered Doe’s fear of future litigation speculative. As Strike 3 admitted at

oral argument, it was nearly certain that Doe’s son was the infringer, making it

likely that Strike 3 would pursue other infringement claims against Doe in the

future. Thus, Doe did not lack standing to pursue his counterclaims.

The district court did not err in awarding Doe attorney’s fees. A district

court enjoys “wide latitude” to award fees in a copyright case “based on the totality

of the circumstances.” Kirtsaeng v. John Wiley & Sons, Inc., 136 S. Ct. 1979,

1985 (2016). That discretion is guided by the non-exclusive factors set out in

Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n.19 (1994): the frivolousness of the

copyright claim, the party’s motivation for bringing the claim, the objective

reasonableness of the claim, and the need to compensate or deter such claims. We

may reverse only if the district court relied on “an inaccurate view of the law or a

clearly erroneous finding of fact.” Fantasy, Inc. v. Fogerty, 94 F.3d 553, 556 (9th

Cir. 1996) (citations and quotations omitted).

4 The district court limited its analysis of the Fogerty factors to compensation

and deterrence, ultimately concluding that compensating Doe for litigating a

meritorious copyright defense sufficiently advanced the goals of the Copyright

Act. We admit that the district court’s analysis of the Fogerty factors could have

been more robust as it merely considered the factors it deemed relevant and applied

them to this case. But the factors are, by definition, non-exclusive, Fogerty, 510

U.S. at 534 n.19, and the district court was not required to discuss each one in

depth. Thus, we are not left with “a definite and firm conviction” that the district

court erred. Wall Data Inc. v. Los Angeles County Sheriff’s Dept., 447 F.3d 769,

787 (9th Cir. 2006).

AFFIRMED.

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