Cook Productions, LLC v. Does 1 through 8

Filing 56

ORDER ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGES FINDINGS AND RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT STANLEY SZERLIP (ECF No. 54 ) and DENYING PLAINTIFFS WRITTEN OBJECTION (ECF No. 55 ). Signed by JUDGE HELEN GILLMOR on 10/30/2017. The Court ADOPTS, in part, and MODIFIES the Findings and Recommendation (ECF No. 54 ).The Court adopts the Magistrate Judge's Findings and Recommendation with regar d to statutory damages and injunctive relief. The Court awards Plaintiffs $750.00 in statutory damages and $1,417.50 in attorney's fees.The Court DENIES Plaintiff's Written Objection. (ECF No. 55). (eps, ) CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications served by first class mail on October 30, 2017

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
COOK PRODUCTIONS, LLC,

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Plaintiff,
v.
STANLEY SZERLIP,
Defendant.

CIVIL NO. 16-00637 HG-KSC

ORDER ADOPTING, AS MODIFIED, THE MAGISTRATE JUDGE’S
FINDINGS AND RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF’S MOTION
FOR DEFAULT JUDGMENT AGAINST DEFENDANT STANLEY SZERLIP (ECF No.
54) and DENYING PLAINTIFF’S WRITTEN OBJECTION (ECF No. 55)
Plaintiff Cook Productions, LLC, owns the copyright to the
film “Mr. Church.”

Plaintiff filed suit seeking injunctive

relief, statutory damages, and reasonable attorney’s fees for
violation of their copyright.
Plaintiff alleges that Defendant Stanley Szerlip violated
Plaintiff’s copyright in “Mr. Church” by downloading and
distributing the work via the BitTorrent protocol.
Defendant has not answered the summons or otherwise made an
appearance in this matter.

Plaintiff filed a Motion for Default

Judgment Against Defendant Stanley Szerlip.

(ECF No. 48).

On August 25, 2017, the Magistrate Judge issued FINDINGS AND
RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT AGAINST STANLEY SZERLIP.

(ECF No. 54).

On September 1,

2017, Plaintiff filed PLAINTIFF’S WRITTEN OBJECTION TO MAGISTRATE
JUDGE’S FINDINGS AND RECOMMENDATION GRANTING IN PART PLAINTIFF’S
1

MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT STANLEY SZERLIP.
(ECF No. 55).
The Court ADOPTS, AS MODIFIED, the Magistrate Judge's
February 26, 2015 Findings and Recommendation (ECF No. 54).
Plaintiff’s Written Objection (ECF No. 55) is DENIED.
PROCEDURAL HISTORY
On December 2, 2016, Plaintiff filed a COMPLAINT against
Does 1-8.

(ECF No. 1).

On February 24, 2017, Plaintiff filed a Notice of Dismissal
without Prejudice of DOE Defendant No.8.

(ECF No. 16).

On March 17, 2017, Plaintiff filed a Notice of Dismissal
without Prejudice of Doe 6 with Prejudice.

(ECF No. 19).

On March 20, 2017, Plaintiff filed a Notice of Dismissal
without Prejudice of Doe 5 with Prejudice.

(ECF No. 20).

On March 24, 2017, Plaintiff filed a Notice of Dismissal of
Doe 3 with Prejudice.

(ECF No. 22).

On March 27, 2017, Plaintiff filed a Notice of Dismissal of
Doe 2.

(ECF No. 23).

On March 24, 2017, Plaintiff filed a AMENDED COMPLAINT
against ERIK GRAY (previously identified as Doe Defendant 1),
ROBERT LUJAN (previously identified as Doe Defendant 4), and
STANLEY SZERLIP (previously identified as Doe Defendant 7).

(ECF

no. 24).
On June 6, 2017, Plaintiff filed a Notice of Dismissal of
ERIK GRAY and ROBERT LUJAN.

(ECF No. 47).

2

On June 8, 2017, Plaintiff filed a First Motion for Entry of
Default Against Defendant Szerlip.

(ECF No. 48).

On August 25, 2017, the Magistrate Judge issued FINDINGS AND
RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT AGAINST STANLEY SZERLIP.

(ECF No. 54).

On September 1, 2017, Plaintiff filed PLAINTIFF’S WRITTEN
OBJECTION TO MAGISTRATE JUDGE’S FINDINGS AND RECOMMENDATION
GRANTING IN PART PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT AGAINST
DEFENDANT STANLEY SZERLIP.

(ECF No. 55).

STANDARD OF REVIEW
A magistrate judge may be assigned to prepare findings and
recommendations for a district judge on a pretrial matter that is
dispositive of a claim.
636(b)(1)(B).

Fed.R.Civ.P. 72(b); 28 U.S.C. §

Any party may object to a magistrate judge's

findings and recommendations, pursuant to United States District
of Hawaii Local Rule 74.2.
If a party objects to the magistrate judge's findings or
recommendations, the district court must review de novo those
portions to which objection is made.

United States v. Raddatz,

447 U.S. 667, 673 (1980); Fed.R.Civ.P. 72(b).

The district court

may accept, reject, or modify, in whole or in part, the findings
and recommendations made by the magistrate judge, or recommit the
matter to the magistrate judge.

28 U.S.C. § 636(b)(1)(C).

De novo review means the district court must consider the

3

matter anew, as if it had not been heard before and as if no
decision previously had been rendered.
F.3d 930, 933 (9th Cir. 2009).

Dawson v. Marshall, 561

The district court must arrive at

its own independent conclusion about those portions to which
objections are made, but a de novo hearing is not required.
United States v. Remsing, 874 F.2d 614, 617–18 (9th Cir. 1989).

ANALYSIS
I. Plaintiff’s Objection to the Magistrate Judge’s Award of
Statutory Damages
Plaintiff objects to the $750 in statutory damages
recommended by the Magistrate Judge, asking instead for statutory
damages of $20,000 “or an appropriate amount greater than $750.”
(Objection at p. 3, ECF No. 55).
Under 17 U.S.C. § 504(c)(1), the court may award statutory
damages “in a sum of not less than $750 or more than $30,000 as
the court considers just” for each infringed work.
Statutory damages up to $150,000 may be awarded. 17 U.S.C. §
504(c)(2) when the infringement is “willful.”

District courts

have “wide discretion in determining the amount of statutory
damages to be awarded, constrained only by the specified maxima
and minima.”

Harris v. Emus Records Corp., 734 F.2d 1329, 1335

(9th Cir. 1984).
Statutory damages “serve both compensatory and punitive
purposes” so as “to sanction and vindicate the statutory policy
of discouraging infringement.”

Los Angeles News Serv. v. Reuters
4

Int'l, Ltd., 149 F.3d 987, 996 (9th Cir. 1998) (quotation marks
and citation omitted).

Courts seek to determine “what is just in

[a] particular case, considering the nature of the copyright
[and] the circumstances of the infringement.”

Id. (quotation

marks and citation omitted).
District courts within the Ninth Circuit have agreed that
statutory damages in the amount of $750 are appropriate in
similar BitTorrent movie download and sharing cases.

See, e.g.,

Voltage Pictures, LLC v. Martinez, No. 3:15-CV-00002-AC, 2015 WL
4772856, at *4 (D. Or. Aug. 11, 2015) (awarding minimum statutory
damages in a similar case); Elf-Man, LLC v. C.G. Chinque
Albright, No. 13-CV-0115-TOR, 2014 WL 5543845, at *7 (E.D. Wash.
Oct. 31, 2014) (same); Thompsons Film, LLC v. Athias, No.
13-CV-0126-TOR, 2014 WL 5543900, at *9 (E.D. Wash. Oct. 31, 2014)
(same); Dallas Buyers Club, LLC v. Bui, No. C14-1926RAJ, 2016 WL
1242089, at *4 (W.D. Wash. Mar. 30, 2016) (same); Dallas Buyers
Club, LLC v. Madsen, No. C14-1153RAJ, 2015 WL 6680260, at *5
(W.D. Wash. Nov. 2, 2015) (same); Dallas Buyers Club, LLC v.
Nydam, No. C14-1684RAJ, 2016 WL 7719874, at *4 (W.D. Wash. Aug.
8, 2016) (same); Criminal Prods., Inc. v. Gunderman, No.
C16-1177-RAJ, 2017 WL 3297518, at *4 (W.D. Wash. Aug. 1, 2017)
(same).
In Qotd Film Investment Ltd. v. Starr, an analogous case
involving the use of BitTorrent to download and share a movie in
violation of the copyright holder’s rights, the district court
reasoned that actual economic damages were likely minimal.
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2016

WL 5817027, at *2 (W.D. Wash. Oct. 5, 2016).

The court

characterized the defendant’s copyright violation as a
“relatively minor infraction causing relatively minor injury” and
that the minimum statutory award was adequate to deter the
defendant from future infringement.

Id. at *3.

The court

reasoned that $750 was already a “steep penalty for having been
too lazy to go to the local Redbox or too cheap to pay a few
dollars for an authorized download.”

Id.

This Court agrees with the above district courts within the
Ninth Circuit and finds that an award of the minimum statutory
damages of $750 adequately compensates copyright holders for a
defendant’s improper downloading and sharing of a movie over
BitTorrent.
In this case, a high definition digital copy of “Mr. Church”
(the “Work”) can currently be purchased for $12.99.

See, e.g.,

https://www.amazon.com/dp/B01M1I9SHS/ref=cm_sw_r_cp_ep_dp_9Ro8zbZ
N838CK (last visited October 25, 2017).
over 50 times that cost.

The award of $750 is

The minimum statutory amount of $750

represents an adequate compensatory award in this case
considering the minimal cost of downloading “Mr. Church” legally,
that only three copies of “Mr. Church” were distributed by
Defendant via BitTorrent, and the lack of evidence that Defendant
was the person who originally made the movie available for others
to download.
An award of $750 sufficiently deters future downloading of
movies in violation of copyright holders’ rights.
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As the court

in Glacier Films (USA), Inc. v. Gallatin stated, “[w]ith
knowledge that it will now cost $750 to [download] a single movie
on the BitTorrent network, consumers should be motivated instead
to spend a few dollars to rent [or buy] the same movie legally.”
2016 WL 3148401 at *3 (D. Or. May 12, 2016), report and
recommendation adopted, 2016 WL 3176583 (D. Or. June 2, 2016).

II. Injunctive Relief
The Court adopts the Magistrate Judge’s Findings and
Recommendation regarding injunctive relief.

Defendant is

enjoined from directly and contributorily infringing Plaintiff’s
copyrighted Work in the future.

Defendant is also ordered to

destroy all copies of the Work that he made or used in violation
of Plaintiff’s copyright.

III. Attorney’s Fees
Plaintiff seeks $8,879.37 in attorney’s fees and tax.
(Plaintiff’s Motion for Default Judgment, pp. 28-29, ECF No. 481).

The Magistrate Judge determined that the appropriate award

of attorney’s fees and tax in this matter is $5,321,58.
A. Fees Are Appropriate Under the Copyright Act
The Copyright Act provides that a court may award costs and
a reasonable attorney’s fee to the prevailing party.
505.

17 U.S.C. §

This statute “confers broad discretion on district courts”

but “in deciding whether to fee-shift, they must take into

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account a range of considerations beyond the reasonableness of
litigating positions.”

Kirtsaeng v. John Wiley & Sons, Inc., 136

S. Ct. 1979, 1988 (2016).

These non-exclusive considerations

include “the degree of success obtained; frivolousness;
motivation; objective unreasonableness (both in the factual and
legal arguments in the case); and the need in particular
circumstances to advance considerations of compensation and
deterrence.”

Columbia Pictures Television, Inc. v. Krypton

Broad. of Birmingham, Inc., 259 F.3d 1186, 1197 (9th Cir. 2001);
see also Kirtsaeng, 136 S. Ct. at 1985.

The Ninth Circuit Court

of Appeals has held that “[t]he most important factor in
determining whether to award fees under the Copyright Act, is
whether an award will further the purposes of the Act.”

Mattel,

Inc. v. MGA Entm't, Inc., 705 F.3d 1108, 1111 (9th Cir. 2013).
First, awarding attorney’s fees in this case is appropriate.
Plaintiff's claims against Szerlip are not frivolous, and the
factual and legal arguments asserted appear objectively
reasonable.

Second, Plaintiff has succeeded by obtaining default

judgment against Szerlip.

Plaintiff has succeeded in obtaining

injunctive relief and statutory damages.
The Court finds that the amount of fees requested by
Plaintiff is disproportionate to the degree of success.

The

statutory award is less than ten percent of the requested
$8,879.37 in attorney’s fees, the disparity suggests that the
amount of fees sought deserves closer scrutiny.
In Cobbler Nevada, LLC v. Anonymous Users of Popcorn Time:
8

Does 1–11, the magistrate judge declined to award attorney's fees
in a similar case involving sharing of a movie via BitTorrent.
2016 WL 4238639, at *3 (D. Or. Aug. 10, 2016).

The magistrate

judge reasoned that, although BitTorrent copyright infringement
cases are not frivolous, the degree of success in these cases is
minimal and the fees spent to achieve the award were high in
proportion to the $750 damage award.

Id.

The judge noted that

the penalty of having to pay $750 in statutory damages (as well
as costs) was already sufficient without an attorney's fee award
to deter future violations of the plaintiff's copyright. Id.

The

judge also observed that in many BitTorrent cases fee shifting
was utilized in an overagressive manner that was inconsistent
with the goals of the Copyright Act.

Id. at *4.

Plaintiff has sued 44 individuals in this District in five
different actions for downloading and sharing the film “Mr.
Church.”

To date, Plaintiff’s attorney, Kerry S. Culpepper, has

brought suit against 380 individuals in this district in 26
nearly identical actions for copyright infringement via
BitTorrent since December 2, 2016.

The docket sheets in the

various cases indicate that some of the defendants have settled
with Culpepper’s clients on terms unknown to the Court.

Imposing

the large amount of attorney's fees requested by Plaintiff, or
even the lower amount awarded by the magistrate judge, would not
necessarily further the goals of the Copyright Act.
Awarding large fees would instead incentivize the use of
copyright claims to force individuals like Szerlip to pay
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thousands of dollars for having downloaded and shared a single
movie via BitTorrent.
B. Reasonableness of Fees
“When calculating the amount of attorney fees to be awarded
in litigation, the district court applies the lodestar method,
multiplying the number of hours expended by a reasonable hourly
rate.”

Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763 (9th

Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433
(1983)).

The reasonableness of the requested fee is then

determined with reference to the twelve Kerr factors:
(1) the time and labor required, (2) the novelty and
difficulty of the questions involved, (3) the skill
requisite to perform the legal service properly, (4)
the preclusion of other employment by the attorney due
to acceptance of the case, (5) the customary fee, (6)
whether the fee is fixed or contingent, (7) time
limitations imposed by the client or the circumstances,
(8) the amount involved and the results obtained, (9)
the experience, reputation, and ability of the
attorneys, (10) the ‘undesirability’ of the case, (11)
the nature and length of the professional relationship
with the client, and (12) awards in similar cases.
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
1975).

The District Court may reduce the amount of requested

fees to reflect a party's limited degree of success, to account
for block billing, or to deduct hours deemed excessive as long as
it provides an adequate explanation for its fee calculation.
Ryan, 786 F.3d at 763.
1. Market Hourly Rate
“The prevailing market rate in the community is indicative
of a reasonable hourly rate.”

Jordan v. Multnomah Cty., 815 F.2d
10

1258, 1262-63 (9th Cir. 1987).

The requesting party has the

burden to produce evidence, in addition to affidavits of counsel,
“that the requested rates are in line with those prevailing in
the community for similar services of lawyers of reasonably
comparable skill and reputation.”

Id. at 1263.

Here, Plaintiff's counsel asserts his hourly rate of $350 is
below the average hourly rate of $379 for solo practitioners with
an IP technical specialization in the electrical field.
(Declaration of Counsel at ¶ 6, ECF No. 48-2 (citing Ex. 8, Am.
Intellectual Prop. Law Ass'n, Report of the Economic Survey
(2015)).

At the same time, Plaintiff appears to leave the fee

rate determination to the Court, noting that “this Court is
better aware of the prevailing rates in the community, having had
the opportunity to review fee requests of many attorneys.”
(Plaintiff’s Motion for Default Judgment, p. 27, ECF No. 48-1).
Plaintiff's counsel’s support of the fee rate of $379
appears to be a nationwide rate and does not evidence what the
rate in Hawaii would be for an attorney of comparable skill and
reputation as Culpepper.

An hourly rate at $250 (including

taxes), is reasonable and closer to what has been awarded to
attorneys practicing in Hawaii with similar experience and what
Culpepper was recently awarded in a similar case. See ME2 Prods.,
Inc. v. Pumaras, No. CV 17-00078 SOM-RLP, 2017 WL 4707015, at *7
(D. Haw. Oct. 19, 2017)(capping Mr. Culpepper's hourly rate at
$250 including taxes); Cook Productions, LLC v. Stewart, et al.,
No. CV 17-00034 ACK-RLP, 2017 WL 4797513, at *6 (D. Haw. Oct. 24,
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2017)(same).
2. Number of Hours
Fee allocation decisions are afforded great deference by
appellate courts because of the district courts' “superior
understanding of the litigation,” as well the need to avoid
“appellate review of minutia” and avoid “a second major
litigation” over attorney’s fees.

Spellan v. Bd. of Educ. for

Dist. 111, 59 F.3d 642, 645 (7th Cir. 1995) (citing Hensley, 461
U.S. at 437).
i. Multiple Defendants
The Court has broad discretion to determine the allocation
of attorney’s fees and costs among multiple defendants.
v. Perales, 903 F.2d 131, 139 (2d. Cir. 1990).

Koster

In allocating

attorney’s fees and costs among multiple defendants, a district
court “should make every effort to achieve the most fair and
sensible solution that is possible.”

Grendel's Den, Inc. v.

Larkin, 749 F.2d 945, 960 (1st Cir. 1984); see also Sable
Commc'ns of Cal., Inc. v. Pac. Tel. & Tel. Co., 890 F.2d 184, 194
(9th Cir. 1989).

Courts have reduced attorney’s fees when work

associated with claims against multiple defendants fell upon the
only defendant to survive dismissal.

See Cataphora Inc. v.

Parker, 848 F. Supp. 2d 1064, 1070 (N.D. Cal. 2012); see e.g.
Employee Painters Welfare Tr. v. Atlas Painting & Drywall, LLC,
No. 2:09-CV-02208-GMN, 2011 WL 6012352, at *2 (D. Nev. Dec. 1,
2011)(court awarded fees proportionate to the number of

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defendants sanctioned under a particular motion).

Plaintiff has provided minimal descriptions of the tasks
billed.

Plaintiff’s table of fees contains descriptions of less

than a sentence and does not delineate what portion of each time
entry was dedicated to the pursuit of claims against Defendant
Szerlip or the other defendants.
2-3, ECF No. 48-2).

(Declaration of Counsel at pp.

The Complaint filed on December 2, 2016

named eight “Doe” defendants.

(ECF No. 1).

On March 27, 2017,

Plaintiff filed its First Amended Complaint, naming three
defendants: Stanley Szerlip, Erik Gray, and Robert Lujan.
No. 24).

(ECF

On June 6, 2017, Plaintiff filed a Notice of Dismissal

of Erik Gray and Robert Lujan.

(ECF No. 47).

Plaintiff’s

descriptions do not provide the Court with sufficient information
to determine what hours are fairly attributable to Plaintiff’s
persuit of claims against just Defendant Szerlip.
It would be inequitable for Defendant Szerlip to bear the
litigation fees expended by Plaintiff directed toward the other
defendants named in the Complaint and First Amended Complaint.
The fees requested by Plaintiff are reduced to reflect the amount
of time that is fairly attributable to the claims against
Defendant Szerlip.

For tasks which took place before the filling

of the First Amended Complaint on March 27, 2017, an across the
board reduction of 87.5% is appropriate because Szerlip was only
one of eight defendants from November 16, 2016, to March 14,
2017.

Plaintiff is entitled to 1.77 hours of billable time. For
13

tasks which took place between the filing of the First Amended
Complaint on March 27, 2017, and the dismissal of Erik Gray and
Robert Lujan on June 6, 2017, an across the board reduction of
66% is appropriate.

Plaintiff is entitled to 1.9 hours of

billable time from March 27, 2017 to May 26, 2017.
ii. Excessive Time
Time spent on work that is “excessive, redundant, or
otherwise unnecessary” shall not be compensated.

See Gates v.

Deukmejian, 987 F.2d 1392, 1397 (9th Cir. 1992), (quoting
Hensley, 461 U.S. at 433-34).

The remaining three entries dated

June 5, June 6, and June 7, 2017, are for “Preparing Motion for
Default Judgment” for a total 6.59 hours spent.

Much of

Plaintiff’s Motion for Default Judgment (ECF No. 48) is
duplicative of Plaintiff’s Complaint (ECF No. 1) and First
Amended Complaint. (ECF No. 24).

Furthermore, the Court is

unpersuaded by the sources relied upon by Plaintiff in their
Motion for Default Judgment which include articles from websites
such as TorrentFreak (ECF No. 48-3), PC Gamer (ECF No. 48-4),
TechJourney (ECF No. 48-5), The Guardian (ECF No. 48-6), and
Forbes (ECF No. 48-7).

These sources reflect a brief internet

query rather than in-depth research on a topic that is minimally
complicated.

The 6.59 hours requested are excessive and are

reduced to 2 hours.
Based on the foregoing, Plaintiffs are entitled to the
following fee award:

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Attorney Hours

Hours

Rate

Total

Kerry S. Culppeper, ESQ

5.67

$250.00

$1,417.50

This Court MODIFIES the Magistrate Judge’s recommendation
and awards Plaintiff $1,417.50 in combined attorney’s fees and
taxes.
CONCLUSION
The Court ADOPTS, in part, and MODIFIES the Findings and
Recommendation (ECF No. 54).
The Court adopts the Magistrate Judge’s Findings and
Recommendation with regard to statutory damages and injunctive
relief. The Court awards Plaintiffs $750.00 in statutory damages
and $1,417.50 in attorney’s fees.
The Court DENIES Plaintiff’s Written Objection.

(ECF No.

55).

IT IS SO ORDERED.
DATED: HONOLULU, HAWAII, OCTOBER 30, 2017.

___________________________________
Helen Gillmor
United States District Judge

COOK PRODUCTIONS, LLC v. STANLEY SZERLIP, CIVIL NO. 16-00637 HGKSC; ORDER ADOPTING, AS MODIFIED, MAGISTRATE JUDGE'S
FINDINGS AND RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF'S MOTION
FOR DEFAULT JUDGMENT AGAINST DEFENDANT STANLEY SZERLIP (ECF No.
54) and DENYING PLAINTIFF'S WRITTEN OBJECTION (ECF No. 55)
15