Countryman Nevada, LLC v. Doe-73.164.181.226

193 F. Supp. 3d 1174, 2016 WL 3437598, 2016 U.S. Dist. LEXIS 79172
CourtDistrict Court, D. Oregon
DecidedJune 17, 2016
DocketCase No. 3:15-cv-433-SI
StatusPublished
Cited by2 cases

This text of 193 F. Supp. 3d 1174 (Countryman Nevada, LLC v. Doe-73.164.181.226) is published on Counsel Stack Legal Research, covering District Court, D. Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Countryman Nevada, LLC v. Doe-73.164.181.226, 193 F. Supp. 3d 1174, 2016 WL 3437598, 2016 U.S. Dist. LEXIS 79172 (D. Or. 2016).

Opinion

OPINION AND ORDER

Michael H. Simon, United States District Judge

Plaintiff, Countryman Nevada, LLC (“Countryman”), brought this action for copyright infringement, alleging unlawful copying and distribution of Countryman’s motion picture The Necessary Death of Charlie Countryman (“NDCC’) in violation of Plaintiffs rights under the Copyright Act, 17 U.S.C. §§ 101, et seq. After granting Plaintiffs motion for judgment on the pleadings, the Court entered judgment in favor of Plaintiff. Before the Court is Plaintiffs motion for an award of attorney’s fees in the amount of $8,767.20 and for costs in the amount of $684. Defendant opposes Plaintiffs motion, arguing that Plaintiff should only be awarded attorney’s fees in the amount of $2,896 and costs in the amount of $570. Defendant also cross moves for Defendant’s attorney’s fees under 28 U.S.C. § 1927 in the amount of $5,040, arguing that, “unreasonable and vexatious conduct” by Plaintiff s counsel needlessly “multiplied these, proceedings,” After considering the parties’ written submissions and oral argument, the Court DENIES Plaintiffs motion for attorney’s fees, DENIES Defendant’s cross-motion for attorney’s fees, and GRANTS Plaintiffs cost bill in the amount of $625, for the reasons stated below.

APPLICABLE STATUTES

A. Prevailing Party Attorney’s Fees Under the Copyright Act

The Copyright Act provides, in relevant part:

In any civil action under ■ this-. title, a court in its discretion may allow:the recovery of full costs by or against any party other than the United States or an officer thereof. Except as otherwise provided by this title, the court may also [1176]*1176award a reasonable attorney’s fee to the prevailing party as part of the costs.

17 U.S.C. § 505 (emphasis added).

B, Attorney’s Fees Under 28 U.S.C. § 1927

Federal law allows a court to impose an award of attorney's fees against an attorney who unreasonably and vexatiously multiplies the proceedings in any federal action.

Any. attorney or other person admitted to conduct cases in any court of the United States or any Territory thereof who so multiplies the proceedings in any case unreasonably and vexatiously may be required by the court to satisfy personally the excess costs, expenses, and attorneys’ fees reasonably incurred because of such conduct.

28 U.S.C. § 1927.

BACKGROUND

Plaintiff filed this lawsuit on March 17, 2015, alleging a single claim of copyright infringement against a defendant identified only by an internet protocol (“IP”) address. ECF 1. According to Plaintiff, Defendant, without Plaintiffs permission or consent, copied and distributed Plaintiffs motion picture, NDCC, through a BitTor-rent protocol or torrent, which is a type of software that facilitates peer-to-peer file sharing over the internet. With its Complaint, Plaintiff filed an ex parte motion to allow third-party discovery from a specified internet service provider (“ISP”) for the purpose of identifying the subscriber and account holder assigned the IP address used by Defendant. ECF 5. The Court granted Plaintiffs motion. ECF 6. On April 27, 2015, the ISP identified for Plaintiff a single-party subscriber affiliated with Defendant’s IP address. ECF 7. Plaintiffs counsel then sent a demand letter to that subscriber. Id. The subscriber is Defendant’s wife.

In May and June 2015, Defendant’s wife received several letters -from Plaintiffs counsel, alleging copyright infringement of the movie NDCC. She had never heard of that movie or of BitTorrent, and she believed that she was being scammed. She ignored the letters. ECF 29, ¶ 4. After she was served with a subpoena demanding her attendance at a deposition, she realized that the matter was real. She contacted Plaintiffs counsel on June 17, 2015, and began cooperating with Plaintiffs counsel. She also contacted her aunt, an Oregon attorney, who later entered an appearance on behalf of Defendant in this matter (“Defendant’s attorney”). Id.

Defendant’s attorney called Plaintiffs counsel on June 19. Plaintiff previously had scheduled the deposition of Defendant’s wife to occur on Thursday, June 25. Defendant’s attorney asked that the deposition be postponed so that she could complete “some basic investigation.” Plaintiffs counsel said that he would postpone the deposition only until July 6, adding that if that were not sufficient Defendant’s attorney could move to quash the deposition. ECF 29, ¶ 5; ECF 28-1 at 2; ECF 30-2 at 14. Defendant’s attorney, an experienced trial lawyer in Oregon since 1981, ECF 29, ¶3, explained that she did not want to quash the subpoena, but merely to postpone the deposition while she investigates the matter. Id. at ¶5. Plaintiff refused. ECF 28-1 at 2.

Defendant’s attorney then acted quickly to obtain technical assistance. Someone from her office inspected the computer owned by Defendant’s wife and learned that Defendant sometimes used BitTor-reni&wkey;type websites on his-wife’s computer to download movies. Defendant, however, did not remember either downloading or watching NDCC, and he expressed “confusion and astonishment” at the huge number of titles allegedly downloaded each day [1177]*1177as shown on the lists provided by Plaintiffs counsel, many of which Defendant did not recognize and claims never to have downloaded. On July 1, Defendant’s attorney confirmed to Plaintiffs counsel that a BitTorrent downloading utility had in fact been used by Defendant on his wife’s computer. Id. at 6. Defendant’s attorney then sent an email to Plaintiffs counsel on July 1, stating: “There have been some developments in this case that I need to talk to you about.... We would like to discuss settlement of this matter.” ECF 28-1 at 2.

The following day, July 2, Defendant’s attorney sent another email to Plaintiffs counsel. She confirmed that her “IT” expert looked at Defendant’s wife’s computer and “found the movie in question had been downloaded.” Defendant’s attorney added that Defendant “apparently downloaded the movie although he does not remember doing so and he never watched it.” Defendant also admitted to using BitTorrent, said that he “had no idea it was an illegal website and is very embarrassed and sorry. He will not ever do anything like this again.” ECF 28-1 at 2-3. Defendant’s attorney closed her email as follows: “I am trying to admit liability on behalf of [Defendant] and settle this matter without adding unnecessarily to your time on this case. Would it be helpful if [Defendant] joins us at the deposition on Monday? You can put him under oath and we will waive notice, if you wish.” Id.

On July 5, Plaintiffs counsel responded by demanding $8,500 for “all costs, fees and the statutory minimum damages.” ECF 28-1 at 3. On July 6, Defendant, through his attorney, agreed to a permanent injunction and payment of the statutory minimum of $750. ECF 28-1' at 3-4.

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Cite This Page — Counsel Stack

Bluebook (online)
193 F. Supp. 3d 1174, 2016 WL 3437598, 2016 U.S. Dist. LEXIS 79172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/countryman-nevada-llc-v-doe-73164181226-ord-2016.