Cook Productions, LLC v. Does 1 through 15
ORDER ADOPTING IN PART AND REJECTING IN PART THE FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF COOK PRODUCTIONS, LLC'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST ALEX STEWART re 29 Findings and Recommendations. . Signed by JUDGE ALAN C. KAY on 10/24/2017. (1) Default judgment shall be entered in Plaintiffs favor and against Defendant Alex Stewart;(2) Plaintiff's request for an injunction prohibiting Mr. Stewart from directly or contributorily infringing Plaintiff's copyrighted Work and refraining from knowingly and willfully using BitTorrent or the Internet to infringe the Work is GRANTED;(3) Plaintiff's request for an injunction prohibiting Mr. S tewart from knowingly and willfully using BitTorrent or the Internet to copy or download in violation of U.S. copyright law other content to which Plaintiff does not hold a copyright is DENIED;(4) Plaintiff's request for an order requiring M r. Stewart to destroy all copies of the copyrighted Work and to delete all software used to make, exchange, or distribute copies of Plaintiff's copyrighted material is GRANTED;(5) Plaintiff is GRANTED an award of $750 in statutory damag es; and (6) Plaintiff is GRANTED attorneys' fees in the amount of $1,000. (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 the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
COOK PRODUCTIONS, LLC,
ALEX STEWART, et al.,
) Civ. No. 17-00034 ACK-RLP
ORDER ADOPTING IN PART AND REJECTING IN PART THE FINDINGS AND
RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF COOK
PRODUCTIONS, LLC’S MOTION FOR ENTRY OF DEFAULT JUDGMENT AGAINST
DEFENDANT ALEX STEWART
For the reasons set forth below, the Court adopts in
part and rejects in part the Findings and Recommendation to
Grant in Part and Deny in Part Plaintiff Cook Productions, LLC’s
Motion for Entry of Default Judgment Against Defendant Alex
Stewart, ECF No. 29, issued by Magistrate Richard L. Puglisi on
August 22, 2017.
On January 25, 2017, Plaintiff Cook Productions, LLC
(“Plaintiff”) filed a complaint against 15 unknown Doe
defendants alleging claims for direct and contributory copyright
Compl., ECF No. 1.
Plaintiff is the owner of a
copyrighted motion picture entitled “Mr. Church” (“Work”).
¶ 10; First Am. Compl. ¶ 17, ECF No. 18.
Plaintiff alleges that
each defendant used BitTorrent, a peer-to-peer file sharing
protocol, to reproduce, distribute, display or perform the
copyrighted Work at issue in violation of 17 U.S.C. § 106(1),
First Am. Compl. ¶¶ 22-65, ECF No. 18.
Plaintiff filed a First Amended Complaint on May 5,
2017 naming Alex Stewart specifically as a defendant.
Id. ¶¶ 5,
Through early discovery, Plaintiff appears to have been
able to identify Mr. Stewart based on the Internet Protocol
address (“IP address”) at which the alleged infringement was
Id. ¶¶ 5, 9-12.
Plaintiff alleges that activity at
that IP address shows that 12 titles, including the copyrighted
Work at issue, were consistently downloaded and/or distributed.
Id. ¶ 10.
Plaintiff also alleges that the subscriber of that IP
address, Lawrence Stewart, stated that his son, defendant Alex
Stewart, “was likely responsible for this activity.”
Id. ¶ 12.
A copy of the summons was left at Mr. Stewart’s
residence with his father on March 28, 2017.
ECF No. 22.
June 16, 2017 Plaintiff’s counsel spoke with Mr. Stewart’s
father, who stated that he had given the documents to his son
“quite a while ago.”
Declaration of Counsel ¶ 5, ECF No. 24-1.
After Mr. Stewart failed to appear, the Clerk of Court entered
default against him on June 21, 2017, pursuant to Plaintiff’s
ECF Nos. 24-25.
On July 7, 2017, Plaintiff filed the
instant motion for default judgment against Mr. Stewart seeking
statutory damages, injunctive relief, and attorneys’ fees.
Motion at 1-2, ECF No. 26 (“Motion”).
Mr. Stewart did not
oppose the Motion.
On August 22, 2017, Judge Puglisi entered Findings and
Recommendation to Grant in Part and Deny in Part Plaintiff’s
ECF No. 29 (“F&R”).
After determining the Court had
subject matter jurisdiction and personal jurisdiction, Judge
Puglisi recommended that default judgment be entered in
Plaintiff’s favor against Mr. Stewart.
Id. at 4-9.
recommended denying Plaintiff’s requests for a permanent
injunction and for an order requiring Mr. Stewart to destroy all
illegal copies of the Work and the software used for the alleged
Id. at 10-12, 16.
Judge Puglisi also recommended
awarding statutory damages, but only in the amount of $750,
rather than the $7,500 requested.
Id. at 12-13, 17.
Judge Puglisi recommended denying Plaintiff’s request for
Id. at 14-17.
Plaintiff filed objections to the F&R on August 25,
ECF No. 30 (“Obj.”).
Mr. Stewart did not file a response
to the objections.
The district court may accept those portions of the
findings and recommendation that are not objected to if it is
satisfied that there is no clear error on the face of the
United States v. Bright, Civ. No. 07-00311 ACK-KSC,
2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Stow v.
Murashige, 288 F. Supp. 2d 1122, 1127 (D. Haw. 2003).
party objects to a magistrate judge’s findings or
recommendation, the district court must review de novo those
portions to which the objections are made and “may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge.”
§ 636(b)(1)(C); see also United States v. Reyna-Tapia, 328 F.3d
1114, 1121 (9th Cir. 2003) (en banc) (“[T]he district court must
review the magistrate judge’s findings and recommendations de
novo if objection is made, but not otherwise.” (emphasis in
Under a de novo standard, a district court “review[s]
the matter anew, the same as if it had not been heard before,
and as if no decision previously had been rendered.”
DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).
district court need not hold a de novo hearing; however, it is
the court’s obligation to arrive at its own independent
conclusion about those portions of the magistrate judge’s
findings or recommendation to which a party objects.
States v. Remsing, 874 F.2d 614, 618 (9th Cir. 1989).
It is within the district court’s discretion to
“receive further evidence, recall witnesses, or recommit the
matter to the magistrate judge with instructions.”
Pursuant to Local Rule 74.2, this Court “may consider the
record developed before the magistrate judge,” but the Court
must make its “own determination on the basis of that record.”
The parties have not objected to Judge Puglisi’s
finding that Plaintiff is entitled to default judgment against
Mr. Stewart or to the award of only $750 in statutory damages to
See generally F&R; Obj.
The Court does not find
clear error in the F&R regarding these findings and adopts them
for the reasons stated therein.
Plaintiff objects to three findings in the F&R: (1)
that Plaintiff is not entitled to a permanent injunction; (2)
that the request for an order that Mr. Stewart destroy all
copies of the infringing work and file-sharing software be
denied; and (3) that Plaintiff’s request for an award of
attorneys’ fees be denied.
Obj. at 2.
The Court agrees with
Plaintiff’s objections and accordingly ADOPTS IN PART and
REJECTS IN PART Magistrate Judge Puglisi’s Findings and
Plaintiff Correctly Asserts That It Is Entitled to a
Permanent Injunction and Order
The Copyright Act authorizes a court to “grant
temporary and final injunctions on such terms as it may deem
reasonable to prevent or restrain infringement of a copyright.”
17 U.S.C. § 502(a).
In addition, the Act authorizes a court to
“order the destruction or other reasonable disposition” of all
copies of the copyrighted work “found to have been made or used
in violation of the copyright owner’s exclusive rights,” as well
as “articles by means of which such copies” may be reproduced.
Id. § 503(b).
To be entitled to a permanent injunction, a plaintiff
must demonstrate: “(1) that it has suffered an irreparable
injury; (2) that remedies available at law, such as monetary
damages, are inadequate to compensate for that injury; (3) that,
considering the balance of hardships between the plaintiff and
defendant, a remedy in equity is warranted; and (4) that the
public interest would not be disserved by a permanent
eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391
“As a general rule, a permanent injunction will be
granted when liability has been established and there is a
threat of continuing violations.”
MAI Sys. Corp. v. Peak
Computer, Inc., 991 F.2d 511, 520 (9th Cir. 1993).
irreparable harm is not presumed even where infringement has
See Flexible Lifeline Sys., Inc. v. Precision Lift,
Inc., 654 F.3d 989, 996 (9th Cir. 2011); see also Hardy Life,
LLC v. Nervous Tattoo, Inc., No. CV 08-3524 PA (CTX), 2008 WL
11338698, at *3 (C.D. Cal. Aug. 4, 2008) (noting that “eBay
rejected a presumption of irreparable harm when assessing the
issuance of a permanent injunction”).
Courts routinely find that permanent injunctions like
the one requested here are warranted in default judgment cases
See, e.g., Malibu Media, LLC v. Sianturi,
No. 116CV01059AWISKO, 2017 WL 3328082, at *6 (E.D. Cal. Aug. 4,
2017); LHF Prods., Inc. v. Does 1-19, No. C16-1175RSM, 2017 WL
615197, at *3 (W.D. Wash. Feb. 15, 2017); Dallas Buyers Club,
LLC v. Bui, No. C14-1926RAJ, 2016 WL 1242089, at *3 (W.D. Wash.
Mar. 30, 2016);
Elf-Man, LLC v. C.G. Chinque Albright, No. 13-
CV-0115-TOR, 2014 WL 5543845, at *7 (E.D. Wash. Oct. 31, 2014).
As in those cases, the Court finds that the eBay
factors favor a permanent injunction here.
likely suffer irreparable harm absent an injunction for which
monetary damages would be inadequate because of the nature of
As Plaintiff explains, the manner in which the
BitTorrent protocol operates leads to a very rapid distribution
of files to many users.
See Motion at 24; First Am. Compl. ¶¶
37-43; see also Malibu Media, 2017 WL 3328082, at *6 (“The
nature of the BitTorrent system means the Plaintiff’s works can
continue to circulate the internet at a fast rate and reach many
Mr. Stewart’s use of BitTorrent to infringe
Plaintiff’s Work does not appear to be an isolated incident;
rather, the IP address Mr. Stewart used is associated with 12
titles that are “consistently” downloaded or shared on
BitTorrent, including one that was downloaded or shared fifteen
First Am. Compl. ¶ 10.
Mr. Stewart’s refusal to participate in this action
does not reassure the Court that he has deleted his infringing
copies of Plaintiff’s Work, stopped using BitTorrent, or will
voluntarily do either in the future.
See Hearst Holdings, Inc.
v. Kim, No. CV074642GAFJWJX, 2008 WL 11336137, at *7 (C.D. Cal.
Aug. 17, 2008) (defendants’ “failure to respond in any way to
this action does not reassure the Court that [they] have stopped
infringing Plaintiffs’ copyrights, which is yet another reason
why granting a permanent injunction to enjoin them from further
infringement is appropriate.”); see also Virgin Records Am.,
Inc. v. Johnson, 441 F. Supp. 2d 963, 966 (N.D. Ind. 2006)
(“Defendant’s failure to respond to the complaint likely
suggests Defendant does not take seriously the illegality of the
In light of the foregoing, Plaintiff stands to suffer
further damage absent an injunction.
In addition, the balance
of hardships also favors Plaintiff because Mr. Stewart would
suffer no injury other than refraining from his infringing
conduct, while Plaintiff would have to trace numerous IP
addresses as distribution and infringement continues.
preventing further copyright infringement undoubtedly serves the
The Court does not find it unreasonable to issue an
injunction against Mr. Stewart.
Though courts have expressed
concern where an alleged infringer has been identified by a
subscriber “through unknown means and for unknown reasons,” see
Dallas Buyers Club v. Bui, 2016 WL 1242089, at *3, such concern
does not appear great here.
father, the subscriber.
Mr. Stewart was identified by his
First Am. Compl. ¶ 12.
subscriber, Mr. Stewart’s father would have been in a position
to know how secure his network was and who might have had access
to it and how they were using it.
Moreover, the summons was
left at Mr. Stewart’s residence with his father who gave him the
ECF No. 22; ECF No. 24-1, ¶ 5.
circumstances, Mr. Stewart had ample opportunity to respond to
or deny the allegations against him.
See Dallas Buyers Club v.
Bui, 2016 WL 1242089, at *3-4 (granting default judgment and
injunction against infringer named by subscriber, where his
relative accepted service and he did not respond to the action).
The Court thus finds that Plaintiff is entitled to a
permanent injunction against Mr. Stewart.
The Court GRANTS
Plaintiff’s request for an injunction prohibiting Mr. Stewart
from directly or contributorily infringing Plaintiff’s
copyrighted Work and from knowingly and willfully using
BitTorrent or the Internet to do so.
However, the Court DENIES
Plaintiff’s request for a broader injunction requiring Mr.
Stewart to cease using BitTorrent or the Internet to copy or
download other content, as Plaintiff does not hold the
copyrights for those works.
See ME2 Prods., Inc. v. Pumaras¸
Civ. No. 17-00078 SOM/RLP, 2017 WL 4181344, at 8 (D. Haw. Sept.
In addition, under 17 U.S.C. § 503(b), the court is
empowered to order the destruction of illegal copies and the
means by which such copies may be reproduced as part of a final
judgment or decree.
This relief “is equitable in nature, and
the standard mirrors that for the grant of a permanent
Star Fabrics, Inv. V. 3Free NYC, Inc., CV-12-
10420-MWF, 2013 WL 12124095, at *5 (C.D. Cal. Decl. 9, 2013).
Thus, for the same reasons as stated above, the Court also
GRANTS Plaintiff’s request that Mr. Stewart be ORDERED to
destroy all copies of the copyrighted Work, including BitTorrent
files, and to delete the software used to make, exchange, or
distribute copies of the Work.
Plaintiff Correctly Asserts That It is Entitled to
Attorneys’ Fees, As Reduced By This Court
The Copyright Act provides that a court may award
costs and a reasonable attorneys’ fee to the prevailing party.
17 U.S.C. § 505.
This statute “confers broad discretion on
district courts” but “in deciding whether to fee-shift, they
must take into account a range of considerations beyond the
reasonableness of litigating positions.”
Kirtsaeng v. John
Wiley & Sons, Inc., 136 S. Ct. 1979, 1988 (2016).
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.
Ninth Circuit 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.”
Inc. v. MGA Entm’t, Inc., 705 F.3d 1108, 1111 (9th Cir. 2013).
First, Plaintiff’s claims against Mr. Stewart are not
frivolous, and the factual and legal arguments asserted appear
Second, by obtaining default judgment
against Mr. Stewart, Plaintiff has succeeded to a certain
However, Plaintiff has not objected to Judge Puglisi’s
award of $750, the statutory minimum, despite seeking $7,500.
Nevertheless, while the Ninth Circuit has indicated in other
contexts that attorneys’ fees may be denied where success can be
characterized as “purely technical or de minimis,” it clarified
that de minimis judgments are “those that confer no rights on
the party – those that do not affect the obligations of the
defendants toward the plaintiff.”
Park v. Anaheim Union High
Sch. Dist., 464 F.3d 1025, 1036 (9th Cir. 2006).
Plaintiff has succeeded in obtaining injunctive relief here, its
success cannot be considered de minimis.
And while the
statutory award is just under half of the $1,640.61 in
attorneys’ fees sought, the disparity suggests to this Court
that the amount of fees sought deserves closer scrutiny rather
than that Plaintiff is not entitled to any fees at all.
In addition, the Court is not persuaded that it is
appropriate to compare Plaintiff’s success in this action
against how widespread the overall infringement appears to be. 1
Unless Plaintiff were to succeed against a large number of
infringers in one fell swoop, its success in any given case will
naturally appear relatively small compared to the infringement
as a whole.
That Plaintiff has allegedly been injured by
widespread infringement should not weigh against the recoupment
of reasonable, non-duplicative attorneys’ fees incurred in this
And though a copyright holder who acquires
experience litigating similar claims may, due to the time and
The Court notes that Glacier Films (USA), Inc. v. Turchin, No.
3:15-CV-01817-SB, 2016 WL 4251581 (D. Or. Aug. 10, 2016), the
case on which Judge Puglisi relied for this comparison, see F&R
at 15, is currently on appeal before the Ninth Circuit on this
issue, No. 16-35688.
level of skill required, only be entitled to a smaller amount of
attorneys’ fees, the Court does not find that the extent of
infringement overall should diminish Plaintiff’s success against
any individual infringer.
Next, Plaintiff’s apparent motivation in suing Mr.
Stewart was to protect its copyright interests.
magistrate judge has consistently expressed concern that
plaintiffs pursuing BitTorrent cases under the Copyright Act
have been overly aggressive in obtaining settlements through
threat of substantial statutory damages and attorneys’ fees,
see, e.g., Cobbler Nevada, LLC v. Anonymous Users of Popcorn
Time: Does 1-11, Case No. 3:15-cv-01550-SB, 2016 WL 4238639, at
*4 (D. Or. Aug. 10, 2016), the Court is not aware of the need
for such concern here.
In this case, Plaintiff only sued 15
defendants, of which some have already been dismissed without
prejudice and some with prejudice.
The Court is unaware if any
settlements have been reached with the dismissed defendants, and
if so, in what amount.
And while Plaintiff has a few similar
cases pending in this district, the Court has no evidence that
Plaintiff has been unfairly obtaining settlements in those cases
Under the circumstances, the Court does not find that
this factor weighs against awarding fees.
Finally, the Court considers the need for compensation
and deterrence and whether an award would further the primary
objective of the Copyright Act “to encourage the production of
original literary, artistic, and musical expression for the good
of the public.”
Fogerty v. Fantasy, Inc., 510 U.S. 517, 524
With respect to deterrence, the Court has already found
that Mr. Stewart will be subject to a $750 statutory award.
Stewart only appears to have infringed or contributed to
infringement of Plaintiff’s Work one time.
See First Am. Compl.
¶ 10; Ex. 2 (IP activity only shows one occurrence of BitTorrent
activity for Plaintiff’s Work).
A $750 award appears to
constitute sufficient deterrence for what appears to only be a
single act of infringement.
Although Plaintiff claims its losses due to
infringement overall are “substantial,” Motion at 17, the Court
also notes that Plaintiff has not objected to the statutory
Plaintiff thus appears to accept that it has been
compensated sufficiently for its damages.
who have already been compensated for bringing claims does not
further the purposes of the Copyright Act.
enforcement of copyrights, production of creative works would be
chilled, and the Court recognizes that Plaintiff did, as it
must, incur some fees in pursuing its successful copyright claim
against Mr. Stewart here.
The Court thus finds that Plaintiff is entitled to an
award of attorneys’ fees.
Mindful of the concerns discussed
above regarding the reasonableness of the fee, the Court turns
to Plaintiff’s requested award of $1,640.61.
Motion at 26-27.
“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
Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763
(9th Cir. 2015) (citing Hensley v. Eckerhart, 461 U.S. 424, 433
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
Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 70 (9th Cir.
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.
“The prevailing market rate in the community is
indicative of a reasonable hourly rate.”
Jordan v. Multnomah
Cty., 815 F.2d 1258, 1262-63 (9th Cir. 1987).
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.”
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 Kerry S. Culpepper ¶ 6, ECF No. 26-2 (“Culpepper
Decl.”) (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
Motion at 27.
The Court does not find that Plaintiff’s counsel has
sufficiently supported the fee rate requested.
The $379 average
rate appears to be a nationwide rate and does not evidence what
the average rate is in Hawaii, much less what the rate in Hawaii
would be for an attorney of comparable skill and reputation as
The Court therefore caps Mr. Culpepper’s hourly
rate at $250 (including taxes), which is closer to what has been
awarded to attorneys practicing in Hawaii with similar
experience and what Mr. Culpepper was recently awarded in a
See ME2 Prods., 2017 WL 4181344, at *7 (capping
Mr. Culpepper’s hourly rate at $250 including taxes).
The entries for which Plaintiff’s counsel has
requested fees are for preparing and filing the First Amended
Complaint, preparing and filing the proposed summons, submitting
executed summons for Mr. Stewart, preparing and filing the
Request for Entry of Default, and preparing the Motion for
Culpepper Decl. ¶ 4.
First, the Court notes that Plaintiff’s counsel has
requested fees for administrative or clerical tasks, which are
not recoverable because they “are part of an attorney’s overhead
and are reflected in the charged hourly rate.”
See Au v.
Funding Grp., 933 F. Supp. 2d 1264, 1275-76 (D. Haw. 2013); see
also L.R. 54.3(d) (party seeking fees must include authority
entitling it to the requested award).
Tasks such as filing
documents with the Court and preparing documents for filing have
previously been deemed non-compensable clerical tasks.
Preparing and serving the summons has also been found to
be a non-compensable clerical task.
Neil v. Comm’r of Social
Sec., 495 F. App’x 845, 847 (9th Cir. 2012) (finding district
court did not abuse its discretion in declining to award fees
for filing documents and preparing and serving the summons).
Accordingly, the entries for preparing and filing the proposed
summons and filing the executed summons are not compensable.
The Court thus declines to award fees for those two entries,
which total 0.5 hours together.
In addition, the entries related to the First Amended
Complaint and Request for Entry of Default seek, in part, fees
for filing, which are non-compensable.
See Culpepper Decl. ¶ 4.
These entries are block billed because they fail to specify a
breakdown of the time spent on each task.
See Robinson v.
Plourde, 717 F. Supp. 2d 1092, 1100 (D. Haw. 2010).
courts have authority to reduce hours billed in block format
because it is difficult to ascertain how much time counsel spent
on specified tasks.
However, limited instances of block
billing do not prevent the Court from determining the
reasonableness of the request as a whole.
See Ko Olina Dev.,
LLC v. Centex Homes, CV No. 09-00272 DAE-LEK, 2011 WL 1235548,
at *11 (D. Haw. Mar. 29, 2011); see also L.R. 54.3(d)(2)
(services must be described adequately so the reasonableness of
requested fees can be evaluated).
The Court finds that these
two block-billed entries do not prevent the Court from assessing
the reasonableness of counsel’s request overall.
With respect to the claim for 1 hour spent preparing
and filing the First Amended Complaint, the Court notes that the
amended complaint is substantially similar to the original
While Plaintiff’s counsel did make some additions
and edits regarding Mr. Stewart, including adding an exhibit to
the complaint, these edits do not require much legal skill or
Similarly, for the 1 hour spent preparing and filing
the request for entry of default, the Court finds that this is a
short, form document which Mr. Culpepper appears to have filed
numerous times in other cases.
See, e.g., ME2 Prods., 17-cv-
00078 SOM-RLP, 2017 WL 4181344, at *7 & ECF No. 30.
Plaintiff’s counsel did have to add information relevant to Mr.
Stewart, preparing this document does not require much legal
skill or effort.
Finally, Plaintiff’s counsel states that he spent 2
hours preparing the motion for default judgment.
notes that this motion is nearly identical to the motion for
default judgment that Mr. Culpepper had previously filed in Cook
Productions, LLC v. Does 1-8, Civ. No. 16-00637 HG-KSC, ECF No.
48 (June 8, 2017).
The Motion is also essentially the same as
the one filed in ME2 Productions, 17-cv-00078 SOM-RLP, ECF No.
32 (July 12, 2017).
The Court recognizes that Mr. Culpepper
appears to have requested more fees in connection with preparing
the motion in the earlier Does 1-8 matter, Civ. No. 16-00637.
See Declaration of Counsel ¶ 4, ECF No. 48-2.
thus presumably has been compensated for the bulk of the legal
work in preparing this motion, and the 2 hours claimed here
relate to making small changes only relevant to Mr. Stewart,
such as the dates of service and the BitTorrent activity related
to the IP address he used.
See Motion at 7-8.
However, as with
the other two entries, these changes do not appear to require
much legal skill or effort.
The Court recognizes that numerous other courts
confronted with BitTorrent cases have reduced attorneys’ fees
because “these cases amounted to something akin to ‘formpleading’ necessitating little, if any legal skill or
Dallas Buyers Club, LLC v. Madsen, No. C14-1153RAJ,
2015 WL 6680260, at *6 (W.D. Wash. Nov. 2, 2015) (collecting
However, in those cases, counsel appears to have
requested higher fees than what was requested here.
id. (awarding $2,099.80 in fees on a request for $3,916.77).
Here, Plaintiff’s counsel only requested $1,640.61 for 4.5 hours
of work at $350 per hour plus tax.
Taking into account the reduction in the fee rate to
$250 (including taxes) and the reduction in compensable hours
from 4.5 to 4, as discussed above, the Court finds that
Plaintiff’s fee request is lowered to $1,000.
The Court does
not find this to be an unreasonable fee under the circumstances.
The Court therefore GRANTS Plaintiff’s request for attorneys’
fees in the amount of $1,000.
For the foregoing reasons, the Court ADOPTS IN PART
AND REJECTS IN PART the Findings and Recommendation to Grant in
Part and Deny in Part Plaintiff Cook Productions, LLC’s Motion
for Entry of Default Judgment Against Defendant Alex Stewart, as
Default judgment shall be entered in Plaintiff’s
favor and against Defendant Alex Stewart;
Plaintiff’s request for an injunction
prohibiting Mr. Stewart from directly or contributorily
infringing Plaintiff’s copyrighted Work and refraining from
knowingly and willfully using BitTorrent or the Internet to
infringe the Work is GRANTED;
Plaintiff’s request for an injunction prohibiting
Mr. Stewart from knowingly and willfully using BitTorrent or the
Internet to copy or download in violation of U.S. copyright law
other content to which Plaintiff does not hold a copyright is
Plaintiff’s request for an order requiring Mr.
Stewart to destroy all copies of the copyrighted Work and to
delete all software used to make, exchange, or distribute copies
of Plaintiff’s copyrighted material is GRANTED;
Plaintiff is GRANTED an award of $750 in
statutory damages; and
Plaintiff is GRANTED attorneys’ fees in the
amount of $1,000.
IT IS SO ORDERED.
Honolulu, Hawaii, October 24, 2017.
Alan C. Kay
Sr. United States District Judge
Cook Productions, LLC, v. Alex Stewart, et al., Civ. No. 1700034 ACK-RLP, Order Adopting in Part and Rejecting in Part the
Findings and Recommendation to Grant in Part and Deny in Part
Plaintiff Cook Productions, LLC’s Motion for Entry of Default
Judgment Against Defendant Alex Stewart.
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