Microhits, Inc. v. Deep Dish Productions, Inc.

1. We have jurisdiction over the denial of Microhits’s motion to withdraw its motion for voluntary dismissal. Microhits’s appeal of this ruling was timely. Fed. R.App. P. 4(a)(1). It also suffered sufficient injury to establish Article III standing because the district court dismissed the case with prejudice, even though Mi-crohits had requested dismissal -without prejudice. Cf. Unioil, Inc. v. E.F. Hutton & Co., Inc., 809 F.2d 548, 556 (9th Cir.1986).

2. When granting a motion for voluntary dismissal, a district court may impose “terms that [it] considers proper.” Fed. R.Civ.P. 41(a)(2). These terms may include that the dismissal be with prejudice. See Burnette v. Godshall, 828 F.Supp. 1439, 1443 (N.D.Cal.1993), aff'd sub nom., Burnette v. Lockheed Missiles & Space Co., 72 F.3d 766 (9th Cir.1995). Where a plaintiff “knows or has reason to know that [it] may withdraw [its] motion for dismissal,” it “will be deemed to have consented to the conditions ... unless [it] withdraws [its] motion within a reasonable time.” Unioil, 809 F.2d at 555 . Microhits was represented by counsel, and so it should have known of its right to withdraw its motion. See Beard v. Sheet Metal Workers Union…

concurring in part and dissenting in part:

Ten months after the plaintiffs brought suit for copyright infringement — after substantial discovery had been conducted and just four weeks before trial was to have begun — plaintiffs moved to voluntarily dismiss their complaint because, they said, they discovered that they could not prove that they own the copyright over which they brought suit to begin with. Meantime, the defendants incurred tens of thousands of dollars in attorneys’ fees defending the action. Then, after dismissing its case, plaintiff Microhits, Inc. filed an untimely “notice of withdrawal” of its motion to dismiss, causing the defendant to incur still additional attorneys’ fees.

A district court has discretion to award attorneys’ fees in a copyright case, Perfect 10, Inc. v. CCBill LLC, 488 F.3d 1102, 1120 (9th Cir.2007), and given the circumstances here, did not abuse its discretion in doing so. With all due respect, my colleagues are effectively reviewing the award de novo. I join the majority in affirming the district court’s denial of the Microhits’ belated notice of withdrawal, but dissent from the reversal of the attorneys’ fee award. I would affirm the…

FILED

NOT FOR PUBLICATION FEB 27 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICROHITS, INC., a California No. 11-56411 corporation, D.C. No. 2:10-cv-00036-PA-E Plaintiff - Appellant,

and MEMORANDUM*

RONALD MAGNESS, an individual,

Plaintiff,

v.

DEEP DISH PRODUCTIONS, INC., a Delaware corporation,

Defendant - Appellee.

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted February 13, 2013 Pasadena, California

* This disposition isn’t appropriate for publication and isn’t precedent except as provided by 9th Cir. R. 36-3. page 2 Before: KOZINSKI, Chief Judge, SILVERMAN, Circuit Judge, and RAKOFF, Senior District Judge.**

1. We have jurisdiction over the denial of Microhits’s motion to withdraw

its motion for voluntary dismissal. Microhits’s appeal of this ruling was timely.

Fed R. App. P. 4(a)(1). It also suffered sufficient injury to establish Article III

standing because the district court…