Countryman Nev., LLC v. Doe

• Decision Date: 17 June 2016
• Docket Number: Case No. 3:15–cv–433–SI
• Citation: 193 F.Supp.3d 1174
• Parties: COUNTRYMAN NEVADA, LLC, Plaintiff, v. DOE–73.164.181.226, Defendant.
• Court: U.S. District Court — District of Oregon

193 F.Supp.3d 1174

COUNTRYMAN NEVADA, LLC, Plaintiff,

v.DOE–73.164.181.226, Defendant.

Case No. 3:15–cv–433–SI

United States District Court, D. Oregon.

Signed June 17, 2016

Carl D. Crowell, Crowell Law , P.O. Box 923, 943 Liberty Street SE, Salem, OR 97308. Of Attorneys for Plaintiff.

Linda C. Love, Williams O'Leary LLC , 1500 SW First Avenue, Suite 800, Portland, OR 97201. Of Attorneys for Defendant.

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 Plaintiff's rights under the Copyright Act, 17 U.S.C. §§ 101, et seq. After granting Plaintiff's motion for judgment on the pleadings, the Court entered judgment in favor of Plaintiff. Before the Court is Plaintiff's 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 Plaintiff's 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 Plaintiff's motion for attorney's fees, DENIES Defendant's cross-motion for attorney's fees, and GRANTS Plaintiff's 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 award 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 Plaintiff's permission or consent, copied and distributed Plaintiff's motion picture, NDCC , through a BitTorrent 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 Plaintiff's motion. ECF 6. On April 27, 2015, the ISP identified for Plaintiff a single-party subscriber affiliated with Defendant's IP address. ECF 7. Plaintiff's 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 Plaintiff's 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 Plaintiff's counsel on June 17, 2015, and began cooperating with Plaintiff's 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 Plaintiff's 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." Plaintiff's 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 BitTorrent—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 as shown on the lists provided by Plaintiff's counsel, many of which Defendant did not recognize and claims never to have downloaded. On July 1, Defendant's attorney confirmed to Plaintiff's 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 Plaintiff's 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 Plaintiff's 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, Plaintiff's 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. Plaintiff's counsel reiterated his demand for $8,500, adding that the release provided to Defendant could be expanded to include " American Heist and one other Voltage [Pictures LLC] related title, and we can expressly include this in the settlement if you[r] client would like at no extra fee." ECF 28–1 at 5. Defendant rejected this demand. Defendant's attorney explained that Defendant and his wife did not have "much money," they recently had a baby in November 2013, and Defendant's attorney and her law firm were representing Defendant and his wife without charge because Defendant's wife was the niece of Defendant's attorney. Id.

On July 6, Defendant filed an unopposed motion to proceed anonymously. ECF 11. The Court granted the motion and allowed Defendant to be identified only as "Doe–73.164.181.226." ECF 13. On July 9, Plaintiff filed a First Amended Complaint. ECF 14. The only material change is that the new pleading identified Defendant as the husband of the subscriber disclosed by the ISP and alleged that Defendant used his wife's computer to download and distribute Plaintiff's motion picture and that a copy of Plaintiff's motion picture was found on Defendant's wife's computer. ECF 14, ¶¶ 11–14.

On July 10, Plaintiff's counsel caused an electronic summons to be generated to Defendant, in care of his attorney. ECF 15. Also on that date, Plaintiff's counsel asked whether Defendant's attorney would agree that the summons and complaint had been "properly served through the CM/ECF system." ECF 28–1 at 6. Defendant's attorney responded that Defendant "agrees to waive service," which "begins the running of the 60–day period to answer." Id. Plaintiff's counsel, however, replied on July 10 that this was unacceptable to Plaintiff and that Plaintiff would proceed to effect "proper service." Id. Plaintiff formally served the law office of Defendant's attorney on July 15, using a commercial process server. ECF 16.

On July 11, Plaintiff reduced its settlement demand to $7,500. ECF 28–1 at 7.

The following day, Defendant's attorney replied that Defendant was willing to offer judgment in the amount of $750 statutory damages, plus an injunction as demanded by Plaintiff, plus attorney's fees and costs in an amount to be determined by the Court. Id. at 8. Later that day, Plaintiff's counsel replied that an offer of judgment would not resolve Defendant's potential liability for any other movies that he may have downloaded—even though NDCC was the only movie alleged in either Plaintiff's Complaint or First Amended Complaint. Id.

Defendant's attorney asked for clarification: "In other words, if we make the $750 offer of judgment and the court orders that along with injunctive relief, fees and costs, your client will likely sue [Defendant] for ‘dis...