
    Nancy RADIN, Plaintiff-Appellant/Appellee, v. Darlene HUNT and Showtime Networks, Inc., a Delaware corporation, Defendants-Appellees/Appellants.
    Nos. 11-57228, 12-55432.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Nov. 9, 2012.
    Filed Nov. 26, 2012.
    Hillel Chodos, Esquire, Independent Counsel, Offices Of Jonathan P. Chodos, APC, Los Angeles, CA, Rafael Chodos, Law Offices of Rafael Chodos, Woodland Hills, CA, for Plaintiff-Appellant/Appellee.
    David Grossman, Loeb & Loeb, LLP, Los Angeles, CA, Jonathan Zavin, Loeb & Loeb LLP, New York, NY, for Defendants-Appellees/Appellants.
    Before: BRIGHT, GRABER, and IKUTA, Circuit Judges.
    
      
       The Honorable Myron H. Bright, Senior Circuit Judge for the United States Court of Appeals for the Eighth Circuit, sitting by designation.
    
   MEMORANDUM

Plaintiff Nancy Radin appeals the district court’s denial of additional discovery to her, its grant of summary judgment to Defendants Darlene Hunt and Showtime Network, Inc., and its award of attorney fees to Defendants under 17 U.S.C. § 505. Defendants cross-appeal the denial of their motion for sanctions under Federal Rule of Civil Procedure 11. We affirm.

1. The district court did not. abuse its discretion in denying additional discovery. Tatum v. City of San Francisco, 441 F.3d 1090, 1100 (9th Cir.2006). It permissibly rested its decision on its determination that Plaintiffs failure to engage in discovery earlier was not excusable. See Pfingston v. Ronan Eng’g Co., 284 F.3d 999, 1005 (9th Cir.2002) (“The failure to conduct discovery diligently is grounds for the denial of [additional discovery].”).

2. The district court correctly granted summary judgment to Defendants as to Plaintiffs copyright infringement claim. Viewing the evidence in the light most favorable to Plaintiff, Mortimer v. Baca, 594 F.3d 714, 721 (9th Cir.2010), no reasonable jury could conclude either that Defendants had access to Plaintiffs work or that the two works are substantially similar — much less strikingly similar, see Funky Films, Inc. v. Time Warner Entm’t Co., 462 F.3d 1072, 1076 (9th Cir.2006) (holding that, to establish copying, a plaintiff generally must show both access and substantial similarity); Three Boys Music Corp. v. Bolton, 212 F.3d 477, 485 (9th Cir.2000) (stating that an inference of copying may arise without evidence of access where the works are “strikingly similar”).

3. Nor did the district court apply an incorrect standard in assessing Defendants’ Rule 11 motion. The district court’s statement is consistent with Rule 11, as it evinces a concern with the merit of Plaintiffs suit as it developed in litigation, and not just at the time of filing. See Fed. R.Civ.P. 11(b). Further, when the statement is read in context, it is clear the court did not rest its denial of sanctions on the sincerity of Plaintiffs beliefs regarding the merits. Neither did the court abuse its discretion in awarding attorney fees to Defendants. Omega S.A. v. Costco Wholesale Corp., 541 F.3d 982, 984 (9th Cir.2008). There is no rule against awarding fees under 17 U.S.C. § 505 where a third party indemnifies a litigant’s legal expenses. The district court permissibly applied the factors identified in Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 n. 19, 114 S.Ct. 1023, 127 L.Ed.2d 455 (1994).

4. With respect to Defendants’ cross-appeal, the district court did not abuse its discretion in declining to impose Rule 11 sanctions against Plaintiff or her counsel. Sneller v. City of Bainbridge Island, 606 F.3d 636, 638 (9th Cir.2010). Plaintiffs copyright claim rested on recognized legal theories and, although it was ultimately inadequate to survive summary judgment, the decision of Plaintiffs counsel to pursue the claim was not so factually baseless as to require the district court to impose sanctions. See Moore v. Keegan Mgmt. Co. (In re Keegan Mgmt. Co., Sec. Litig.), 78 F.3d 431, 434 (9th Cir.1996) (reversing sanctions award and holding that, to warrant Rule 11 sanctions, a filing must be “frivolous” — that is, “both baseless and made without a reasonable and competent inquiry.” (internal quotation marks omitted)).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
     