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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

SellPoolSuppliesOnline.com LLC,

Plaintiff, 

v. 

Ugly Pools Arizona Incorporated, et al., 

Defendants.

No. CV-15-01856-PHX-BSB

ORDER 

 Defendants, Ugly Pools Arizona, Inc., and Brian Morris (“Defendants”), have filed 

a motion for reconsideration of the Court’s March 11, 2019 Order denying their motion for 

attorney’s fees and costs. (Doc. 110 (denying Doc. 102).) Plaintiff filed a response in 

opposition to that motion. (Doc. 114.) Because LRCiv 7.2(g)(2) does not provide for a 

response to a motion for reconsideration and the Court did not order one, Plaintiff withdrew 

its response. (Doc. 115 (“notice of errata”).) The Court, therefore, does not consider 

Plaintiff’s response. As set forth below, the Court denies the motion for reconsideration. 

 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 

showing of manifest error or a showing of new facts or legal authority that could not have 

been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). In its 

March 11, 2019 Order, the Court stated that “[w]hen determining whether to award 

attorney’s fees in a copyright case, the court may consider ‘several non-exclusive factors’ 

including: ‘[the degree of success obtained], frivolousness, motivation, objective 

unreasonableness (both in the factual and in the legal components of the case), and the need 

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in particular circumstances to advance considerations of compensation and deterrence.’” 

(Doc. 110 at 4 (citing Kirtsaeng v. John Wiley & Sons, Inc., ___ U.S. ___, 136 S. Ct. 1979, 

1985 (2016)).) The Court considered these factors and considered whether an award of 

fees would further the purposes of the Copyright Act. (Doc. 110.) In their motion for 

reconsideration, Defendants argue manifest error based on the Court’s determination on 

the “objective unreasonableness” factor and on the goals-of-the-Copyright-Act factor. 

(Doc. 112 at 2; see Doc. 110 at 10-15.) The Court considers these arguments below. 

I. Objective Reasonableness of Plaintiff’s Position 

 As noted in the March 11, 2019 Order, when determining whether to award fees 

under the Copyright Act, the court considers the objective reasonableness of the losing 

party’s position “both in the factual and in the legal components of the case.” Kirtsaeng v. 

John Wiley & Sons, ___ U.S.____, 136 S. Ct. 1979, 1983, 1985 (2016). In the March 11, 

2019 Order the Court concluded the Plaintiff’s copyright infringement claim was not 

objectively unreasonable because it was not clear that Plaintiff “‘should have known from 

the outset that its chances of success’ in raising all of its arguments on the copyright 

infringement claim ‘were slim to none.’” (Doc. 110 at 12 (quoting SOFA Entm’t, Inc., v. 

Dodger Prods., 709 F.3d 1273, 1279, 1280 (9th Cir. 2013)).) 

 Defendants argue that this determination is manifest error. (Doc. 112 at 2-3.) 

Defendants cite decisions from the Second Circuit Court of Appeals and the Federal Circuit 

that predate 17 U.S.C. § 411(b) for the proposition that a plaintiff’s misrepresentations to 

the copyright office support an award of attorney’s fees. (Doc. 112 at 3 (citing 

Whimsicality, Inc. v. Rubie’s Costume Co., Inc., 891 F.2d 452 (2d Cir. 1989), and Energy 

Heating, LLC v. Heat On-The-Fly, LLC, 889 F.3d 1291 (Fed. Cir. 2018)).) 

 In Whimsicality, the Second Circuit found that the plaintiff made “willful 

misrepresentations” in a copyright application that fell “within the meaning of ‘bad faith’ 

under [Second Circuit] case law.” Id. at 457. The Second Circuit remanded the case to the 

district court for a determination of attorney’s fees. (Id.) While the Second Circuit’s 

decision considered plaintiff’s “bad faith,” as that term is defined in the Second Circuit, 

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relevant to the consideration of attorney’s fees, it remanded to the district court to 

determine attorney’s fees in “light of [its] opinion,” but did not direct the district court to 

award attorney’s fees solely on that basis. (Id.) The Court finds that the Second Circuit’s 

decision does not support the conclusion that its determination of the objective 

reasonableness factor was manifest error that requires reconsideration of its March 11, 

2019 Order. 

 In Energy Heating, the Federal Circuit considered whether to award attorney’s fees 

under 35 U.S.C. § 285. Energy Heating, 889 F.3d at 1306. Under § 285, a “court in 

exceptional cases may award reasonable attorney fees to the prevailing party.” Id. The 

court stated that “[a]n ‘exceptional’ case under § 285 is ‘one that stands out from others 

with respect to the substantive strength of a party’s litigating position (considering both the 

governing law and the facts of the case) or the unreasonable manner in which the case was 

litigated.’” (Id. (quoting Octane Fitness, LLC v. ICON Health & Fitness, Inc., ___ U.S. 

___ 134 S. Ct. 1749, 1756 (2014)). The court noted that district courts often awarded, and 

the Federal Circuit had upheld, attorney’s fees under § 285 on a finding of “inequitable 

conduct.” Energy Heating, 889 F.3d at 1307. The court stated that after its decision in 

Therasense, “inequitable conduct requires specific intent to deceive.” Id. (citing 

Therasense Inc. v. Becton, Dickinson and Co., 649 F.3d 1276, 1290 (Fed. Cir. 2011)). The 

court further stated that a district court is not required to “always award attorney’s fees 

following a finding of inequitable conduct.” Energy Heating, 649 F.3d at 1307. Rather, 

the decision “should be made based on the totality of the circumstances.” Id. (citing Octane 

Fitness, 134 S. Ct. at 1756). However, “given the strict standard in Therasense . . . a 

district court must articulate a basis for denying attorney’s fees following a finding of 

inequitable conduct.” Energy Heating, 649 F.3d at 1307. The court vacated the district 

court’s order denying attorney’s fees under § 285 and remanded on that issue because the 

district court’s order did not use the language of the standard articulated in Therasense and, 

therefore, the court could not determine whether the court had abused its discretion in 

denying attorney’s fees. Id. at 1307-08. 

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 The Court finds that the Federal Circuit’s decision does not lead to the conclusion 

that the Court’s March 11, 2019 determination of the objective reasonableness factor was 

manifest error that requires reconsideration of that order. The Energy Heating decision 

was based on standards that are not applicable to this Court’s determination of the 

attorney’s fees request in this case. Additionally, the Federal Circuit did not require the 

district court to award attorney’s fees based on the plaintiff’s inequitable conduct to obtain 

a patent. Id. at 1299-1300, 1307-08. Rather, the Federal Circuit remanded to the district 

court to again consider the issue of attorney’s fees. 

II. The Goals of the Copyright Act 

 In the March 11, 2019 Order, the Court considered whether an award of attorney’s 

fees would further the purposes of the Copyright Act. (Doc. 110 at 13-14 (citing Glacier 

Films v. Turchin, 896 F.3d 1033, 1040-41 (9th Cir. 2018).) The Court noted that “[t]he 

goal of the Copyright Act is ‘to promote creativity for the public good.’” (Doc. 110 at 14 

(quoting Jackson v. Axton, 25 F.3d 884, 890 (9th Cir. 1994)).) “Under the Copyright Act, 

the question is whether a successful defense of the action furthered the purposes of the Act, 

not whether a fee award would do so.” Mattel, Inc. v. Walking Mountain Prods., 353 F.3d 

792, 815-16 (9th Cir. 2003). The Court concluded that the “goal of promoting copyright 

registrations is different from the goal of promoting the ‘production of original literary, 

artistic, and musical expression for the good of the public.’” (Doc. 110 at 15 (quoting 

Fogerty v. Fantasy, Inc., 510 U.S. 517, 524 (1994)).) Therefore, the Court found “that the 

successful defense advanced in this case [did] not further the goal of the Copyright Act and 

this factor [did] not weigh in favor of awarding fees.” (Doc. 110 at 15.) 

 In their motion for reconsideration, Defendants disagree with the Court’s conclusion 

and argue that their successful defense furthered the goals of the Copyright Act. (Doc. 112 

at 3-4.) Defendants assert arguments that they could have included in their motion for 

attorney’s fees. Defendants, however, do not explain why the Court’s determination of 

this issue was manifest error. 

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 In conclusion, Defendants have not shown “manifest error” or “new facts or legal 

authority that could not have been brought to [the Court’s] attention earlier with reasonable 

diligence.” LRCiv 7.2(g)(1). Therefore, the Court denies the motion for reconsideration. 

 Accordingly, 

IT IS ORDERED that Defendants’ motion for reconsideration (Doc. 112) is 

DENIED. 

 Dated this 28th day of March, 2019. 

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