NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAY 28 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LHF PRODUCTIONS, INC., No. 19-17171 20-15126 Plaintiff-Counterdefendant- Appellee, D.C. No. 2:16-cv-02028-JAD-NJK v.

JOHN DOES; et al., MEMORANDUM*

Defendants,

and

BRIAN KABALA,

Defendant-Counterclaimant- Appellant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted May 6, 2021 Pasadena, California

Before: WARDLAW and GOULD, Circuit Judges, and DONATO,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James Donato, United States District Judge for the Northern District of California, sitting by designation. Brian Kabala (Kabala) appeals (1) the district court’s dismissal of his abuse

of process counterclaim pursuant to Nevada’s Anti-Strategic Lawsuit Against

Public Participation (anti-SLAPP) statute and (2) the district court’s order denying

him an attorney’s fee under the Copyright Act, 17 U.S.C. § 505. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. We review de novo the anti-SLAPP dismissal of Kabala’s abuse of

process claim and review for abuse of discretion the district court’s denial of a

motion for reconsideration. Smith v. Pac. Props. & Dev. Corp., 358 F.3d 1097,

1100 (9th Cir. 2004); Coker v. Sassone, 432 P.3d 746, 749 (Nev. 2019). Under

Nevada law, “[a] court must grant an anti-SLAPP special motion to dismiss where

(1) the defendant shows, by a preponderance of the evidence, that the claim is

based on a ‘good faith communication in furtherance of . . . the right to free speech

in direct connection with an issue of public concern’ and (2) the plaintiff fails to

show, with prima facie evidence, a probability of prevailing on the claim.” Smith

v. Zilverberg, 481 P.3d 1222, 1227 (Nev. 2021) (quoting Nev. Rev. Stat.

§ 41.660(3)(a) and citing § 41.660(3)(b)).

To carry his burden at the second step of this framework, Kabala had to show

his abuse of process claim had “minimal merit.” Id. at 1229. This showing required

“competent, admissible evidence,” Omerza v. Fore Stars, Ltd., 2020 WL 406783, at

*3 (Nev. Jan. 23, 2020) (unpublished), that LHF Productions (LHF) had “(1) an

2 ulterior purpose . . . other than resolving a legal dispute, and (2) a willful act in the

use of the legal process not proper in the regular conduct of the proceeding,” Land

Baron Inv. v. Bonnie Springs Fam. LP, 356 P.3d 511, 519 (Nev. 2015) (internal

quotation marks and citation omitted).

Kabala failed to meet this burden. He attached no declarations or evidence

to his opposition to the anti-SLAPP motion, referring the district court instead to

the allegations contained in his complaint. See Omerza, 2020 WL 406783 at *3

(explaining this is insufficient). Moreover, after reviewing the entire record before

the district court and the state of federal copyright law when LHF filed its amended

complaint, we also conclude there existed no competent evidence that LHF

willfully and improperly misused the legal process. Therefore, the district court

properly granted LHF’s anti-SLAPP motion. The district court also properly

denied leave for further discovery, as Kabala made no showing of essential facts

that LHF possessed that could salvage his abuse of process claim. See Nev. Rev.

Stat. § 41.660(4); accord Fed. R. Civ. P. 56.

2. We similarly review for abuse of discretion the district court’s denial of

an attorney’s fee under the Copyright Act. Tresóna Multimedia LLC v. Burbank

High School Vocal Music Ass’n, 953 F.3d 638, 644 (9th Cir. 2020). “Courts may

consider (but are not limited to) five factors in making an attorneys’ fees

determination . . . (1) the degree of success obtained, (2) frivolousness, (3)

3 motivation, (4) objective reasonableness of the losing party’s legal and factual

arguments, and (5) the need to advance considerations of compensation and

deterrence.” Id. at 653 (cleaned up). The district court considered the totality of

the circumstances fairly and in accordance with our case law when it reasonably

determined that Kabala did not deserve an attorney’s fee award in this case.

Accordingly, the district court did not abuse its discretion.

AFFIRMED.

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