PTG Nevada, LLC v. Doe-24.20.158.26 et al

Filing 50

OPINION and ORDER: The Court GRANTS in part Plaintiff's Motion 45 for an Award of Attorney Fees and Bill of Costs 44 against Defendant and AWARDS Plaintiff attorneys' fees of $1,560.00 and costs of $127.50. Signed on 12/20/2017 by Judge Anna J. Brown. (rr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

PTG NEVADA, LLC,
Plaintiff,

3:15-cv-02017-BR
OPINION AND ORDER

v.
BRYAN WILSON,
Defendant.

CARL D. CROWELL
Crowell Law
P.O. Box 923
Salem, OR 97308
[phone]
Attorney for Plaintiff

BROWN, Judge.
This matter comes before the Court on Plaintiff's Motion
(#45) for Attorney Fees and Bill of Costs (#44).

For the reasons

that follow, the Court GRANTS in part Plaintiff's Motion for an
Award of Attorney Fees and Bill of Costs and AWARDS Plaintiff
attorneys' fees of $1,560.00, and costs in the amount of $127.50.
1 - OPINION AND ORDER

BACKGROUND

Plaintiff brought this action against Def endant 1 for
copyright infringement pursuant to 17 U.S.C.

101, et seq.,

§§

for the unlicensed copying, promotion, and distribution of
Plaintiff's motion picture titled Pay The Ghost.
Defendant was personally served with Summons and the Amended
Complaint in this matter.

Defendant failed to answer or

otherwise to appear within the time required.
2016, the Court issued an Order of Default.

On August 10,
On September 15,

2016, the Court entered Default Judgment against Defendant in
favor of Plaintiff for statutory damages in the amount of
$7,500.00 and injunctive relief.

DISCUSSION
I.

Plaintiff is entitled to reasonable attorneys' fees.

In any action for copyright infringement, the court in its
discretion may allow the recovery of costs by or against any
party and may also award reasonable attorneys' fees to the
prevailing party as part of the costs.

17 U.S.C.

§

505.

The Supreme Court has held a district court may exercise its
discretion to grant or to deny attorneys' fees to a prevailing
party in a copyright case.
1

See Fogerty v. Fantasy, Inc., 510

The case was originally filed against multiple
unidentified IFP users.
Defendant was identified as one user and
individually named in a subsequent Amended Complaint.
2 - OPINION AND ORDER

U.S. 517, 534 (1994) ("[A]ttorney's fees are to be awarded to
prevailing parties only as a matter of the court's discretion.")
See also McCulloch v. Albert E. Price, Inc., 823 F.2d 316, 323
(9th Cir. 1987) ("[W]e do not believe Congress intended that the
prevailing plaintiff should be awarded attorney's fees in every
case.").

Indeed, the Supreme Court recently reiterated in a

unanimous decision that "§ 505 grants courts wide latitude to
award attorney's fees based on a totality of circumstances in a
case.

11

Kirtsaeng v. John Wiley

1985 (2016) .

&

Sons, Inc.,

The Supreme Court emphasized

"§

136 S. Ct. 197 9,

505 confers broad

discretion on district courts and, in deciding whether to feeshift, they must take into account a range of considerations
beyond the reasonableness of litigating positions[.]"

Kirtsaeng,

136 S. Ct. at 1988.
The Ninth Circuit has also held "[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, 705 F.3d 1108, 1111 (9th Cir. 2013)) and the
primary purpose of the Copyright Act is to "encourage the
production of original literary, artistic, and musical expression
for the good of the public."

SOFA Entm't, Inc. v. Dodger Prods.,

Inc., 709 F.3d 1273, 1280 (9th Cir. 2013).
U.S. at 527

See also Fogerty, 510

("[C]opyright law ultimately serves the purpose of

enriching the general public through access to creative

3 - OPINION AND ORDER

works[.]").
Based on the totality of the circumstances in this case, the
Court concludes Plaintiff is entitled to reasonable attorneys'
fees and costs in this matter.
II.

P1aintiff is entit1ed to reasonab1e attorneys' fees in the
amount of $1,560.00.
A.

Standards.

The Supreme Court has stated under federal fee-shifting
statutes that "the lodestar approach" is ''the guiding light" when
determining a reasonable fee.
551 (2010).

Perdue v. Kenny A., 559 U.S. 542,

Under the lodestar method the court first determines

the appropriate hourly rate for the work performed and then
multiplies that amount by the number of hours properly expended
in doing the work.

Id.

Although "in extraordinary

circumstances" the amount produced by the lodestar calculation
may be increased, "there is a strong presumption that the
lodestar is sufficient."

Id. at 556.

The party seeking an award

of fees bears "the burden of documenting the appropriate hours
expended in the litigation, and [is] required to submit evidence
in support of those hours worked."

United Steelworkers of Am. v.

Ret. Income Plan For Hourly-rated Emps. Of Asarco, Inc.,
555, 565 (9th Cir. 2008) (quotations omitted).

512 F.3d

When "determining

the appropriate number of hours to be included in a lodestar
calculation, the district court should exclude hours 'that are

4 - OPINION AND ORDER

excessive, redundant, or otherwise unnecessary.'"

Mccown v. City

of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley
v. Eckerhart, 461 U.S. 424, 434

(1983)).

To determine the lodestar amount the court may consider
the following 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) any 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.
Fischel v. Equitable Life Assur. Soc'y of U.S., 307 F.3d 997,
1007 n. 7 (9th Cir. 2002) (quotation omitted).

A rote recitation

of the relevant factors is unnecessary as long as the court
adequately explains the basis for the award of attorneys' fees.
McGinnis v. Kentucky Fried Chicken of Cal., 51 F.3d 805, 809 (9th
Cir. 1995).
The lodestar amount is presumed to be the reasonable
fee, and, therefore, "'a multiplier may be used to adjust the
lodestar amount upward or downward only in rare and exceptional
cases, supported by both specific evidence on the record and
detailed findings by the lower courts.'"

Summers v. Carvist

Corp., 323 F. App'x 581, 582 (9th Cir. 2009) (quoting Van Gerwen
5 - OPINION AND ORDER

v. Guarantee Mut. Life Co., 214 F.3d 1041, 1045 (9th Cir. 2000)).
"Adjustments [to the lodestar amount] must be carefully tailored
. and [made] only to the extent a factor has not been
subsumed within the lodestar calculation."
of Rory Clark, 603 F.3d 699, 704

(9th Cir. 2009) (citing Camacho

v. Bridgeport Fin., Inc., 523 F.3d 973, 982
B.

Rouse v. Law Offices

(9th Cir. 2008)).

Time Incurred in Connection with Plaintiff's Action for
an Award of Attorneys' Fees.

Plaintiff seeks to recover attorneys' fees for the time
spent by attorney Carl D. Crowell in the handling of Plaintiff's
claim against Defendant. 2

Crowell's hourly billing records for

services rendered are submitted with the Declaration of Counsel
(#46).

Those records reflect a total of 7.4 hours expended in

identifying Defendant, drafting the Amended Complaint, preparing
service documents, preparing the Motion for Default and Motion
for Default Judgment, and drafting the Motion for Attorneys' Fees
and Bill of Costs.

Crowell states the time that he spent related

to the previously joined case and all other original defendants
has been excluded.
The Court notes this is one of numerous copyrightinfringement cases filed by counsel in this Court.

The handling

of these matters has become somewhat pro forma with the filing of

2

Crowell states the attorneys' fees sought are based solely
on the time that he spent on Plaintiff's claim against Defendant
Wilson.
6 - OPINION AND ORDER

complaints against unidentified IP addresses in which the
plaintiffs recite similar factual scenarios of infringing
activity and reiterate industry concerns about peer-to-peer
internet piracy.

After following a routine procedure for

identification of the owner of the IP address, most cases end in
either default judgments or consent judgments and injunctive
relief against alleged infringers.

Many of these case are

voluntarily dismissed by the plaintiffs.
Although counsel has limited the hours for his
attorneys' fee request, those hours still reflect the performance
of uncontested routine and, in some instances, clerical work.
The Court also notes a default judgment for $7,500.00 in damages
was entered against Defendant, which is greater than the typical
damage awards for these kinds of cases in this District.

See,

e.g., Glacier Films (USA), Inc. v. Gallatin, No. 3:15-cv-01632SB, 2016 WL 3148401, at *3 (D. Or. May 12, 2016) ("[C]ornrnon sense
supports a conclusion that a $750 financial penalty for illegal
downloading one movie is more than sufficiently punitive to deter
others from illegally downloading free movies on the BitTorrent
network.).

In many of these kinds of cases trial judges of this

Court have exercised discretion and denied attorneys' fees
altogether on the grounds that such an award was not justified.
See, for example, Anonymous Users of Popcorn Time, No. 3:15-cv01550-SB, 2016 WL 4238639 (fee-shifting in a mass copyright

7 - OPINION AND ORDER

litigation does not satisfy the factors in Fogerty v. Fantasy,
Inc.,

510 U.S. 517, 534 (1994)); Glacier Films (USA), Inc. v.

Turchin,

3:15-cv-1817-SB, 2016 WL 4251581 (D. Or. Aug. 10,

2016) (same), appeal docketed, No. 16-35688 (9th Cir. Aug. 26,
2016.); Cobbler Nevada, LLC, v. Cerritos, 3:15-cv-01228-SB, 2016
WL 7177527

(D. Or. Dec. 9, 2016).
On the totality of this record the Court concludes a

reduction to a total of 5.0 hours of attorney time expended by
Crowell in connection with the prosecution of this action against
Defendant is reasonable.
C.

Attorney's Requested Hourly Rate.

Crowell requests an hourly rate of $312.00.

Even

though Defendant has not appeared in this action and, therefore,
has not objected, the Court has an independent duty to review a
motion for attorneys' fees for reasonableness.
Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992).

See Gates v.
See also Cruz

v. Alhambra Sch. Dist., 282 F. App'x 578, 580 (9th Cir. 2008) (The
district court has an ''obligation to articulate

the reasons

for its findings regarding the propriety of the hours claimed or
for any adjustments it makes either to the prevailing party's
claimed hours or to the lodestar.").
To determine the reasonable hourly rate of an attorney,
this Court uses the most recent Oregon State Bar Economic Survey
published in 2013 as its initial benchmark.
8 - OPINION AND ORDER

Attorneys may argue

for higher rates based on inflation, specialty, or any number of
other factors.

Crowell states the average hourly rate for an

attorney with comparable years of practice is $312 per hour, and,
therefore, he seeks $312 per hour, which is within the
compensation tables of the Economic Survey for an attorney with
Crowell's experience and expertise.
On this record the Court, in the exercise of its
discretion, concludes the hourly rate of $312 is reasonable.
Accordingly, the Court awards attorneys' fees of $1,560.00 to
Plaintiff.
III. Plaintiff is entitled to costs.

Plaintiff requests an award of costs in the amount of
$127.50 comprised of the fee for service of the summons and a
witness fee required to determine the identity of Defendant.
Absent a showing of circumstances not relevant here, an
award of costs is governed by federal law.
Inc. v. Ruby Robinson Co., Inc.,

See Champion Produce,

342 F.3d 1016, 1022 (9th Cir.

2003).
28 U.S.C.

§

1920 allows a federal court to tax specific

items as costs against a losing party pursuant to Federal Rule of
Civil Procedure 54 (d) (1).

Section 1920 provides:

A judge or clerk of any court of the United States
may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any part
of the stenographic transcript necessarily
9 - OPINION AND ORDER

obtained for use in the case;
(3)Fees and disbursements for printing and
witnesses;
(4)Fees for exemplification and copies of papers
necessarily obtained for use in the case;
(5)Docket fees under section 1923 of this title;
(6)Compensation for court-appointed experts,
compensation of interpreters, and salaries, fees,
expenses, and costs of special interpretation
services under § 1828 of this title.
A bill of costs shall be filed in the case and,
upon allowance, included in the judgment or
decree.
Costs generally are awarded to the prevailing party in a
civil action as a matter of course unless the court directs
otherwise.

Fed. R. Civ. P. 54(d).

The court must limit an award

of costs to those defined in 28 U.S.C.
provided for by statute.

§

1920 unless otherwise

Grove v. Wells Fargo Fin. Ca., Inc.,

606 F.3d 577, 579-80 (9th Cir. 2010).

The costs sought by

Plaintiff are specifically allowed under

§

1920.

Accordingly, the Court awards costs to Plaintiff in the
amount of $127.50.

CONCLUSION

For these reasons, the Court GRANTS in part Plaintiff's
Motion (#45)

for an Award of Attorney Fees and Bill of Costs

10 - OPINION AND ORDER

(#44) against Defendant and AWARDS Plaintiff attorneys' fees of

$1,560.00 and costs of $127.50.
IT IS SO ORDERED.
DATED this

'doi/'j day of December, 2016.

ANNA J. BROWN/
United States District Judge

11 - OPINION AND ORDER