InfoDeli, LLC, a Missouri LLC; Breht C. Burri v. Western Robidoux, Inc., a Missouri corporation; Engage Mobile Solutions, LLC

United States Court of Appeals
For the Eighth Circuit
___________________________
No. 20-2146
___________________________
InfoDeli, LLC, a Missouri LLC; Breht C. Burri
Plaintiffs - Appellants
v.
Western Robidoux, Inc., a Missouri corporation; Engage Mobile Solutions, LLC
Defendants - Appellees
Matthew Barksdale
Defendant
CEVA Animal Health, LLC; Shane Fairchild; Boehringer Ingelheim Vetmedica,
Inc.; Peter Burri; Brian P. Burri; Cindy Burri
Defendants - Appellees
Connie Burri; Elizabeth Corbin; Sai Chow; Antonio Love; Darrin Clawson;
Nathan Haley; James Robertson
Defendants
___________________________
Information Dignity Alliance
Amicus on Behalf of Appellant(s)
___________________________
No. 20-2256
___________________________

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InfoDeli, LLC, a Missouri LLC; Breht C. Burri
Plaintiffs - Appellees
v.
Western Robidoux, Inc., a Missouri corporation
Defendant - Appellant
Engage Mobile Solutions, LLC; Matthew Barksdale; CEVA Animal Health, LLC;
Shane Fairchild; Boehringer Ingelheim Vetmedica, Inc.; Peter Burri; Brian P.
Burri; Cindy Burri; Connie Burri; Elizabeth Corbin; Sai Chow; Antonio Love;
Darrin Clawson; Nathan Haley; James Robertson
Defendants
___________________________
Information Dignity Alliance
Amicus on Behalf of Appellee(s)
___________________________
No. 23-2545
___________________________
InfoDeli, LLC, a Missouri LLC; Breht C. Burri
Plaintiffs - Appellants
v.
Western Robidoux, Inc., a Missouri corporation; Engage Mobile Solutions, LLC
Defendants - Appellees
Matthew Barksdale
Defendant

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CEVA Animal Health, LLC; Shane Fairchild; Boehringer Ingelheim Vetmedica,
Inc.; Peter Burri; Brian P. Burri; Cindy Burri
Defendants - Appellees
Connie Burri; Elizabeth Corbin; Sai Chow; Antonio Love; Darrin Clawson;
Nathan Haley; James Robertson
Defendants
____________
Appeal from United States District Court
for the Western District of Missouri - Kansas City
____________
Submitted: September 26, 2024
Filed: May 5, 2025
____________
Before GRUENDER, KELLY, and GRASZ, Circuit Judges.
____________
KELLY, Circuit Judge.
This consolidated appeal stems from a conflict involving a family and its
businesses that has now been litigated in both state and federal courts. See
TooBaRoo, LLC v. W. Robidoux, Inc., 614 S.W.3d 29 (Mo. Ct. App. 2020);
TooBaRoo, LLC v. W. Robidoux, Inc., No. 23-3323, -- F.4th -- (8th Cir. May 5,
2025). The instant dispute comprises claims of copyright infringement, tortious
interference, and Missouri Computer Tampering Act (MCTA) violations, as well as
sanctions, attorney’s fees, and costs. The district court1 granted defendants’ motion
for summary judgment on the copyright infringement claim. The remaining claims
were dismissed or tried before a jury, which found in favor of defendants. The
district court then granted in part and denied in part plaintiffs’ sanctions motion, and
1 The Honorable Brian C. Wimes, United States District Judge for the Western
District of Missouri.

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granted defendants’ motion for attorney’s fees and costs. Plaintiffs appeal. We
affirm.
I.
Plaintiffs are Breht Burri and his technology business, InfoDeli, LLC
(collectively, InfoDeli). Defendants include Breht’s mother, Connie Burri; his
brothers, Brian and Peter Burri; and his sister-in-law, Cindy Burri. Western
Roubidoux, Inc. (WRI), CEVA Animal Health, LLC (CEVA), Boehringer
Ingelheim Vetmedica, Inc. (BIVI), and Engage Mobile Solutions, Inc. (Engage) are
also named as defendants.2
Breht is the sole member of InfoDeli, formerly TooBaRoo, which creates
webstores and internet software systems for commercial clients. WRI is a
commercial printing and fulfillment company owned by Connie, Breht, Brian, Peter,
and Cindy. WRI prints and distributes marketing materials for other businesses. In
2009, InfoDeli and WRI formed a joint venture wherein InfoDeli agreed to create
webstore platforms for clients, and WRI agreed to provide printing and fulfillment
services to those clients.
Two of the joint venture’s clients were BIVI and CEVA, companies that
provide animal health products to businesses and pet owners. Consistent with the
joint venture agreement, InfoDeli created webstores for BIVI and CEVA, which the
companies’ sales and marketing staff used to order promotional materials for clients.
WRI would then receive and fulfill all of the webstore orders placed by BIVI and
CEVA staff. InfoDeli also created a separate rebate platform for CEVA called the
Vectra Rebate webstore. This platform allowed CEVA’s sales and marketing staff
to order promotional coupons to send to customers such as vet clinics and pet
2 Collectively, we refer to all individual and corporate defendants as
Defendants. When referring to individual Burri family members, we use first names.

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owners. Customers could then access this platform to redeem the coupons. WRI
would also receive and fulfill orders placed through the Vectra Rebate webstore.
Eventually, WRI and InfoDeli’s relationship began to deteriorate. In early
2014, WRI hired Engage, another company that creates webstores and internet
software for commercial clients, to build webstores for CEVA and BIVI that would
replace those created by InfoDeli. Unlike InfoDeli’s versions of the BIVI and CEVA
webstores, which Breht created using proprietary software, Engage used third-party,
open-source e-commerce software to create the new webstores. To assist in
populating the new websites, WRI provided Engage with data and images from
BIVI’s and CEVA’s InfoDeli-created webstores.
WRI did not inform InfoDeli that it was working with Engage. Then, in March
2014, soon after hiring Engage, WRI terminated its joint venture agreement with
InfoDeli. InfoDeli then brought this lawsuit against Defendants, alleging, among
other claims, that Defendants infringed on eight copyright registrations by copying
various elements of the BIVI, CEVA, and Vectra Rebate webstores. In addition to
copyright infringement, and relevant to this appeal, InfoDeli alleged violation of the
MCTA and tortious interference.3 CEVA counterclaimed, alleging conversion, as
did WRI, alleging tortious interference.
Defendants moved for summary judgment on InfoDeli’s copyright
infringement claims, which the district court granted, and InfoDeli moved for
summary judgment on CEVA’s and WRI’s counterclaims, which the district court
denied. The remaining claims and counterclaims proceeded to trial where a jury
found in favor of Defendants. Before and after the jury verdict, InfoDeli moved for
judgment as a matter of law under Rules 50(a) and (b) of the Federal Rules of Civil
Procedure. InfoDeli also moved for a new trial and relief from judgment under Rules
59 and 60. After the jury verdict, but before the district court ruled on the posttrial
3 Among others, the complaint also included a claim that WRI, BIVI, and
CEVA breached the InfoDeli platforms’ terms of use.

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motions, InfoDeli appealed the district court’s grant of summary judgment to
Defendants on its copyright infringement claim, denial of summary judgment to
InfoDeli on Defendants’ counterclaims, and denial of InfoDeli’s pre-verdict motion
for judgment as a matter of law. A panel of this court concluded it lacked jurisdiction
over InfoDeli’s appeal and held the appeal in abeyance. Afterward, the district court
denied InfoDeli’s posttrial motions.
InfoDeli now renews its earlier appeal. InfoDeli also appeals the district
court’s denial of its motions for judgment as a matter of law and for a new trial, as
well as the court’s orders on sanctions and attorney’s fees.
II.
We begin with InfoDeli’s copyright infringement claims. The district court
granted summary judgment to Defendants, concluding that they did not infringe on
any copyrighted elements of the BIVI, CEVA, and Vectra Rebate webstores
(collectively, Platforms). “We review a grant of summary judgment de novo,
affirming only if ‘the evidence, viewed in the light most favorable to the nonmoving
party, demonstrates that there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law.’” Warner Bros. Ent., Inc. v. X One
X Prods., 644 F.3d 584, 591 (8th Cir. 2011) (quoting Schoolhouse, Inc. v. Anderson,
275 F.3d 726, 728 (8th Cir. 2002)).
Before addressing InfoDeli’s arguments for reversal, it is helpful to define
some of the relevant terms. In copyright law, “verbatim copying” is synonymous
with the term “literal copying,” and both mean word-for-word “copying of original
expression.” Oracle Am., Inc. v. Google Inc., 750 F.3d 1339, 1356 (Fed. Cir. 2014).
“Nonliteral copying,” on the other hand, is copying that “is ‘paraphrased or loosely
paraphrased rather than word for word.’” Id. (quoting Lotus Dev. Corp. v. Borland
Int’l, 49 F.3d 807, 814 (1st Cir. 1995)).

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These terms—literal (or verbatim) copying and nonliteral copying—are
distinct from a computer program’s “literal” and “nonliteral” elements, which may
be protected in copyright. See id. One literal element of a computer program is
“source code.” Id. at 1355 (“The literal elements of a computer program are the
source code and object code.”). “Courts have defined source code as ‘the spelled-
out program commands that humans can read.’” Id. (quoting Lexmark Int’l, Inc. v.
Static Control Components, Inc., 387 F.3d 522, 533 (6th Cir. 2004)). Put another
way, “‘source code’ is the program as initially written in the programming language
being used.” Action Tapes, Inc. v. Mattson, 462 F.3d 1010, 1013 (8th Cir. 2006).4
In contrast, “non-literal [elements] of a computer program include, among other
things, the program’s sequence, structure, and organization, as well as the program’s
user interface.” Oracle, 750 F.3d at 1355–56.
The district court found that the Platforms’ nonliteral elements were not
entitled to copyright protection, and on appeal, InfoDeli does not challenge this
determination—at least as to each of the nonliteral elements considered alone.
Instead, InfoDeli contends that the district court erred because it “ignored the sum
total” and “over-dissected certain copied portions of the Platforms without
considering the protectability of what was copied as a whole.” But InfoDeli does not
identify how the “sum total” is protected, other than to say that each Platform’s
individual parts are interrelated. Even accepting that as true, InfoDeli’s argument on
appeal lacks any explanation as to how the interrelationship among the non-
protected parts of the Platforms makes them protected “as a whole.”
Citing Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
(1991), InfoDeli also asserts that its Platforms “as a whole” are protected under
copyright law as “compilations,” regardless of whether each individual nonliteral
element was protected. See Feist, 499 U.S. at 348 (finding that “[f]actual
4 One example of source code is HTML code, a programming language that,
when written, “generates the visual appearance of a website.” ACTONet, Ltd. v.
Allou Health & Beauty Care, 219 F.3d 836, 847 (8th Cir. 2000).

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compilations . . . may possess the requisite originality” for copyright protection).
“To qualify for copyright protection, a work must be original . . . . mean[ing] only
that the work was independently created by the author (as opposed to copied from
other works), and that it possesses at least some minimal degree of creativity.” Id. at
345.
Assuming for these purposes that the Platforms qualify as “compilations,”5
the works still must show—even when taken as a whole—at least “some minimal
degree of creativity” in the “manner in which the compiler has selected and arranged
the” individual elements or facts. Id. at 345, 349. InfoDeli asserts that its Platforms’
databases were protected compilations. But it does not explain why that is so. On
appeal, InfoDeli argues that a compiler “typically” makes choices regarding
selection and arrangement, but it fails to describe how its databases demonstrate the
requisite creativity necessary for a compilation to merit copyright protection.
InfoDeli’s conclusory statements are generally accurate descriptions of the law, but
they are insufficient to show the requisite originality to establish copyright
protection of its databases as compilations. See Butler v. Crittenden County, 708
F.3d 1044, 1051 (8th Cir. 2013) (declining to consider cursory argument
unsupported by facts).
InfoDeli also contends that the district court erred because it “overlooked” the
Defendants’ “verbatim copying of InfoDeli’s [source] code,” that is, some of the
Platforms’ literal elements. InfoDeli’s second amended complaint expressly alleged
copyright infringement of the Platforms’ nonliteral elements. It did not allege
5 In copyright, “[a] ‘compilation’ is a work formed by the collection and
assembling of preexisting materials or of data that are selected, coordinated, or
arranged in such a way that the resulting work as a whole constitutes an original
work of authorship . . . . [and] includes collective works.” 17 U.S.C. § 101.

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infringement of the literal elements,6 or “code.” The district court did not err in
addressing only the claims raised in the operative complaint.
Finally, InfoDeli argues that, regarding the BIVI webstore, the district court
erred when it limited its copyright analysis to only the elements identified by
InfoDeli’s expert, Jason Eaddy. Citing Compulife Software, Inc. v. Newman, 959
F.3d 1288, 1303 (11th Cir. 2020), InfoDeli argues that Defendants bore the burden
to prove which elements—including those beyond Eaddy’s list—were not copyright
protected. But, contrary to InfoDeli’s argument, Compulife clarified that “[w]hen
. . . [a] plaintiff provides a list of [elements] it believes to be protectable, he implicitly
concedes that elements not included on the list are unprotectable.” Id. at 1306 n.8;
see also MiTek Holdings, Inc. v. Arce Eng’g Co., 89 F.3d 1548, 1555 (11th Cir.
1996) (“After submitting a specification of the elements that it deemed to be
protectable, [a plaintiff] cannot now argue that the district court failed to abstract
further the elements of its own designation of protectable features.”). InfoDeli
provides no other support for its burden-shifting argument, and we have found none.
The district court did not err when it relied on InfoDeli’s own expert to determine
which of the BIVI platform’s elements were at issue for purposes of its copyright
infringement analysis.
We affirm the district court’s grant of summary judgment to Defendants on
InfoDeli’s copyright infringement claim.7
6 To the extent that InfoDeli relies on passing references in its opposition to
summary judgment to say otherwise, such reliance is insufficient. New claims are
properly raised through amended complaints, not opposition briefs. See Fed. R. Civ.
P. 15(a); see also Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th
Cir. 2004) (“At the summary judgment stage, the proper procedure for plaintiffs to
assert a new claim is to amend the complaint in accordance with Fed. R. Civ. P.
15(a). A plaintiff may not amend her complaint through argument in a brief opposing
summary judgment.”).
7 We need not address any alternative basis the district court relied on in
granting summary judgment to Defendants.

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III.
Next, InfoDeli appeals the district court’s denial of its motion for summary
judgment on CEVA’s conversion counterclaim. Ordinarily, “[w]e will not review a
district court’s denial of a motion for summary judgment after a trial on the merits.”
EEOC v. Sw. Bell Tel., L.P., 550 F.3d 704, 708 (8th Cir. 2008). Instead, parties denied
summary judgment should seek redress “through subsequent motions for judgment
as a matter of law and appellate review of those motions if they were denied.” N.Y.
Marine & Gen. Ins. Co. v. Cont’l Cement Co., LLC, 761 F.3d 830, 838 (8th Cir.
2014) (quoting White Consol. Indus., Inc. v. McGill Mfg. Co., 165 F.3d 1185, 1189
(8th Cir. 1999)). One exception to this general rule is preliminary legal issues, like
statutes of limitations. Id. at 838. On appeal, InfoDeli argues that CEVA failed to
claim ownership over its webstore’s data within the Copyright Act’s statute of
limitations. But the district court found that CEVA’s counterclaim was based on its
possessory rights to consumer data—not on any right to the Platforms themselves—
and that the claim was unrelated to InfoDeli’s copyright ownership allegations,
which had been dismissed. Instead, CEVA’s counterclaim was based on Missouri
state law, and CEVA brought its conversion counterclaim within Missouri’s five-year
statute of limitations. See Mo. Rev. Stat. § 516.120(4) (five-year statute of
limitations for tort claims). InfoDeli has failed to show reversible error.8
8 InfoDeli mentions in passing rulings the district court made before and during
the trial, but it fails to develop an argument as to any of them. See Hortica-Florists’
Mut. Ins. Co. v. Pittman Nursery Corp., 729 F.3d 846, 857 n.12 (8th Cir. 2013)
(failing to adequately develop an argument in support of alleged error amounts to
abandonment); Rotskoff v. Cooley, 438 F.3d 852, 854 (8th Cir. 2006) (finding waiver
where party failed to develop argument in his briefs pursuant to Federal Rule of
Appellate Procedure 28(a)(9)(A)).

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IV.
InfoDeli also appeals the district court’s denial of its posttrial motions for
judgment as a matter of law and a new trial under Federal Rules of Civil Procedure
50(b) and 59. The district court denied these motions as untimely. See Fed. R. Civ.
P. 50(b) (“No later than 28 days after the entry of judgment . . . the movant may file
a renewed motion for judgment as a matter of law . . . .”); Fed. R. Civ. P. 59(b) (“A
motion for a new trial must be filed no later than 28 days after the entry of
judgment.”).
This case has a long history. InfoDeli initially filed a notice of appeal after
trial but before the district court had ruled on the posttrial motions. We determined
that the appeal was premature. Because we lacked jurisdiction, we held the appeal
in abeyance “pending further rulings of the district court” and remanded the case.
InfoDeli first argues that the district court’s order denying the posttrial
motions as untimely violated the mandate rule—a rule that requires courts “to obey
strictly an appellate mandate” on remand. Bethea v. Levi Strauss & Co., 916 F.2d
453, 456 (8th Cir. 1990); see also Williams v. Martorello, 59 F.4th 68, 76–77 (4th
Cir. 2023) (“[Courts of appeal] review whether a post-mandate decision of the
district court violated the mandate rule de novo.”). According to InfoDeli, our order
remanding the case was an implicit ruling that its posttrial motions were timely, and
the district court’s ruling that they were untimely violated our mandate. But we said
nothing in our remand order about the timeliness of any motions still pending in the
district court. On remand, the district court simply ruled on InfoDeli’s posttrial
motions and did nothing that violated the mandate rule.
Alternatively, InfoDeli contends that its posttrial motions were timely because
final judgment was not entered until the district court resolved one remaining
claim—InfoDeli’s claim for tortious interference against the Burri defendants—
approximately one year after the trial verdict. According to InfoDeli, it therefore
filed its posttrial motions before final judgment, and thus the motions could not have

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been untimely. But InfoDeli’s argument is contradicted by the record. The district
court entered an order in February 2016 dismissing the tortious interference claim
against two defendants. And before trial in March 2020, it dismissed the same claim
against the remaining defendants on the same grounds, at which time InfoDeli’s
counsel said: “I understand the court’s ruling and we accept it.”9 InfoDeli also argues
that the district court should have accepted its untimely, corrected motions nunc pro
tunc. InfoDeli relies on Rule 83(a)(2) to argue that its failure to comply with the
local rules was “nonwillful.” Fed. R. Civ. P. 83(a)(2) (“A local rule imposing a
requirement of form must not be enforced in a way that causes a party to lose any
right because of a nonwillful failure to comply.”). But InfoDeli failed to raise this
argument before the district court despite multiple opportunities to do so, and despite
being on notice that timeliness was at issue. Accordingly, we decline to consider it.
See Perry v. Precythe, 121 F.4th 711, 716 (8th Cir. 2024) (describing our “ordinary
practice” of not considering an argument raised for the first time on appeal).
InfoDeli further asserts there was insufficient evidence to support the jury’s
verdict on WRI’s tortious interference counterclaim, and alternatively, that the
counterclaim is barred by the economic loss doctrine. The district court dismissed
both arguments as untimely under Rules 50(b) and 59(b), and we find no error in
that decision. See Fed. R. Civ. P. 50(b), 59(b); see also Ludlow v. BNSF Ry. Co.,
788 F.3d 794, 800 (8th Cir. 2015) (“Without question, when the verdict loser fails
to file a Rule 50(b) motion renewing its pre-verdict Rule 50(a) JMOL motion, ‘there
[is] no basis for review of [the party’s] sufficiency of the evidence challenge in the
Court of Appeals.’” (alterations in original) (quoting EEOC, 550 F.3d at 708)).
We affirm the district court’s denial of InfoDeli’s Rule 50 and 59 motions as
untimely.
9 InfoDeli also contends that the district court violated Rule 56(f) by sua sponte
granting the remaining defendants summary judgment on this claim. But the district
court resolved this claim by dismissing it, not by granting summary judgment, so
Rule 56(f) is inapplicable.

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V.
We turn next to sanctions. “The district court has broad discretion in imposing
sanctions on parties for failing to comply with discovery orders,” and we review
such sanctions for abuse of discretion. United States v. Amaya, 750 F.3d 721, 727
(8th Cir. 2014) (quoting United States v. Davis, 244 F.3d 666, 670 (8th Cir. 2001)).
Factual findings are reviewed for clear error. Wagner v. Gallup, Inc., 788 F.3d 877,
882 (8th Cir. 2015).
Here, the district court found that Engage caused delays in the discovery
process warranting sanctions under Rule 37(b). See Fed. R. Civ. P. 37(b) (providing
for sanctions for failing to comply with a court order). According to the district court,
“Engage purposefully ‘slow-played’ its responses to the Court’s discovery orders,
with knowledge that delaying production of certain [electronically stored
information] would operate to conceptually distance the Engage project from
Plaintiffs’ Platforms.” And the court was “satisfied that Engage’s delays in
producing discovery were undertaken in bad faith and prejudiced Plaintiffs in
prosecuting their claims.” It declined, however, to sanction any of the defendants for
spoliation under Rule 37(e). Fed. R. Civ. P. 37(e) (allowing the district court to order
curative measures if, among other things, “a party failed to take reasonable steps to
preserve [electronically stored information]”).
First, InfoDeli argues that the dollar amount of the Rule 37(b) sanctions was
inadequate. After deciding sanctions were appropriate, the district court directed
InfoDeli to submit an itemized accounting of the costs and fees attributable to
Engage’s discovery violations. In response, InfoDeli sought reimbursement for
expert fees and attorney’s fees. As to the expert fees, the district court found that
InfoDeli submitted invoices for work that was “not readily attributable to Engage’s
discovery delays.” Instead, the district court found that InfoDeli would have incurred
those expenses regardless of Engage’s delays, and it declined to assess them to
Engage. As to the attorney’s fees, the district court had some difficulty discerning
the billing records to determine which fees were incurred as a result of the discovery

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violations. Ultimately, however, it identified those fees that were “reasonably
expended on tasks related to Engage’s failure to comply with Court orders” and
included those in the sanctions award. The district court was intimately familiar with
the extensive record as well as the conduct that gave rise to the sanctions order, and
we see no clear error in the district court’s calculation of an appropriate sanction.
Second, InfoDeli argues the district court abused its discretion by not
sanctioning all Defendants under Rule 37(e), because they failed to preserve
electronically stored information. According to InfoDeli, Defendants spoliated
electronic “databases,” thereby destroying evidence necessary for “‘a side-by-side
comparison’ of the infringed work and accused work.” Yet InfoDeli represented to
the district court that Engage had “produced all of the databases,” which contained
the evidence InfoDeli sought. And while the district court imposed Rule 37(b)
sanctions against Engage for discovery delay, it expressly declined to find that
Engage had failed to take reasonable steps to preserve electronically stored
information as required for curative action under Rule 37(e). As to the other
defendants, the district court found that none had “repeatedly failed to timely comply
with the Court’s discovery orders,” and InfoDeli does not meaningfully contest this
finding on appeal. Thus, InfoDeli has failed to convince us that the district court
abused its discretion regarding the imposition of Rule 37(e) sanctions.
VI.
InfoDeli’s last argument challenges the award of attorney’s fees and costs to
Defendants.10 See 17 U.S.C. § 505. The Copyright Act authorizes attorney’s fees to
“encourage the types of lawsuits that promote [the Act’s] purpose[],” which is,
broadly, “enriching the general public through access to creative works.” Kirtsaeng
v. John Wiley & Sons, Inc., 579 U.S. 197, 204 (2016) (quoting Fogerty v. Fantasy,
Inc., 510 U.S. 517, 527 (1994)). The Act achieves its purpose “by striking a balance
10 InfoDeli does not contest that Defendants were the prevailing parties. See
17 U.S.C. § 505.

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between two subsidiary aims: encouraging and rewarding authors’ creations while
also enabling others to build on that work.” Id.
“The Copyright Act itself makes clear that the decision [to award or deny
attorney fees] lies within the [district] court’s discretion . . . .” Designworks Homes,
Inc. v. Thomson Sailors Homes, L.L.C., 9 F.4th 961, 965 (8th Cir. 2021); see also
Kirtsaeng, 579 U.S. at 203 (noting “that § 505 grants courts wide latitude to award
attorney’s fees based on the totality of the circumstances”). Fees may not be awarded
“as a matter of course.” Kirtsaeng, 579 U.S. at 202 (quoting Fogerty, 510 U.S. at
533). Rather, the “court must make a more particularized, case-by-case assessment,”
placing “substantial weight” on the “objective reasonableness” of the loser’s
litigation position, while nonetheless also crediting “a range of considerations
beyond the reasonableness of the litigating positions.” Id. at 202, 207–08. In other
words, “objective reasonableness” is “only an important factor . . . not the controlling
one.” Id. at 208.
Here, the district court found that InfoDeli’s copyright claims, while
unsuccessful, were not frivolous or objectively unreasonable. But the court
expressed concern that despite having alleged “broad copyright infringement
claims,” InfoDeli was unable to support its claims with evidence. After years of
litigation and extensive discovery, InfoDeli failed to convince the district court that
there was a genuine dispute of material fact as to whether Defendants had copied
elements of InfoDeli’s Platforms that were protectable in copyright. In light of these
findings, the court expressed concern about fostering creative pursuits while
deterring lawsuits “arising from others’ use of aspects of existing creative works
which are not protectable in copyright as a matter of law.” This is a relevant factor
for the district court’s consideration. See id. at 209.
In addition to the “objective unreasonableness [] both in the factual and in the
legal components of the case,” a district court may also consider “motivation” when
deciding whether to assess fees. Fogerty, 510 U.S. at 534 n.19. Though it “decline[d]
to explicitly find InfoDeli’s claims were improperly motivated,” the district court

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noted that “the family dynamics underlying the parties’ claims impacted the overall
tenor of th[e] litigation.” After having presided over the case “for almost six years,”
the court found this factor11 played a part in how the case was litigated and thus was
relevant in its decision to assess fees. Kirtsaeng reminds us that “discretion is rarely
without limits.” 579 U.S. at 203 (quoting Flight Attendants v. Zipes, 491 U.S. 754,
758 (1989)). But applying due deference to the district court who presided over these
proceedings, we cannot say that it exceeded those limits here. Id. at 204.12
InfoDeli also argues that the district court abused its discretion in awarding
costs to Defendants. “We review de novo the legal issues related to the award of
costs and review the actual award for an abuse of discretion.” Stanley v. Cottrell,
Inc., 784 F.3d 454, 464 (8th Cir. 2015). The only issue before us13 is InfoDeli’s
objection to costs for deposition transcripts that it asserts were never used in the case
or “otherwise justified as necessary.” See 28 U.S.C. § 1920(4) (permitting district
court to tax “the costs of making copies of materials where the copies are necessarily
obtained for use in the case”). The district court determined that the transcripts were
11 InfoDeli calls this a “family-dynamics factor,” but that misreads the district
court’s ruling. The court was concerned about the nature and tone of the years-long
litigation, and we read its reference to “family-dynamics” as simply giving context
to its observations. At one point in the litigation, for example, the district court
admonished the parties for their “personalization of one another,” “name calling,”
and “finger pointing.” The court described their conduct as “distracting,” leading it
to be more “caught up with the bickering than [] with [] the legal arguments in the
case.”
12 To the extent InfoDeli argues for the first time on appeal that the amount of
attorney’s fees awarded to Defendants was unreasonable, InfoDeli waived this
argument by failing to raise it before the district court. See Designworks Homes, 9
F.4th at 965 n.3 (explaining that a party “may not challenge the size of [§ 505
attorney’s fees] for the first time on appeal”).
13 We decline to address InfoDeli’s additional arguments opposing costs,
which are raised for the first time on appeal. See Designworks Homes, 9 F.4th at 965
n.3; see also Jackson v. Corr. Corp. of Am., 606 F. App’x 945, 953 (11th Cir. 2015)
(per curiam).

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“necessarily obtained for use in the case” because they “involved many parties in
varying roles and many witnesses.” See Johnson Tr. v. Charps Welding, 950 F.3d
510, 527 (8th Cir. 2020) (“Depositions are taxable when necessarily obtained for use
in a case, even if not introduced at trial.”). And the court found that Defendants’ fee
requests were “adequately substantiated by documentation.” InfoDeli’s conclusory
argument alleging error fails to persuade us that the district court’s assessment of
transcript costs was an abuse of discretion.
VII.
We affirm.14
______________________________
14 Because we affirm, we need not address the issues raised in Defendants’
cross-appeal.

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