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`COOK PRODUCTIONS, LLC,
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`Plaintiff,
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`vs.
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`ALEX STEWART, et al.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAII
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`Civ. No. 17-00034 ACK-RLP
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`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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`For the reasons set forth below, the Court adopts in
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`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.
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`BACKGROUND
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`On January 25, 2017, Plaintiff Cook Productions, LLC
`(“Plaintiff”) filed a complaint against 15 unknown Doe
`defendants alleging claims for direct and contributory copyright
`infringement. Compl., ECF No. 1. Plaintiff is the owner of a
`copyrighted motion picture entitled “Mr. Church” (“Work”). Id.
`¶ 10; First Am. Compl. ¶ 17, ECF No. 18. Plaintiff alleges that
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`COOK PRODUCTIONS, LLC,
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`Plaintiff,
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`vs.
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`ALEX STEWART, et al.,
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`Defendants.
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF HAWAII
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`Civ. No. 17-00034 ACK-RLP
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`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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`For the reasons set forth below, the Court adopts in
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`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.
`
`BACKGROUND
`
`On January 25, 2017, Plaintiff Cook Productions, LLC
`(“Plaintiff”) filed a complaint against 15 unknown Doe
`defendants alleging claims for direct and contributory copyright
`infringement. Compl., ECF No. 1. Plaintiff is the owner of a
`copyrighted motion picture entitled “Mr. Church” (“Work”). Id.
`¶ 10; First Am. Compl. ¶ 17, ECF No. 18. Plaintiff alleges that
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`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),
`(3)-(5). First Am. Compl. ¶¶ 22-65, ECF No. 18.
`
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`Plaintiff filed a First Amended Complaint on May 5,
`2017 naming Alex Stewart specifically as a defendant. Id. ¶¶ 5,
`9-15. 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
`observed. 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.
`
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`A copy of the summons was left at Mr. Stewart’s
`residence with his father on March 28, 2017. ECF No. 22. On
`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
`request. ECF Nos. 24-25. On July 7, 2017, Plaintiff filed the
`instant motion for default judgment against Mr. Stewart seeking
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`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
`Motion. 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. However, he
`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
`infringement. 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. Finally,
`Judge Puglisi recommended denying Plaintiff’s request for
`attorneys’ fees. Id. at 14-17.
`Plaintiff filed objections to the F&R on August 25,
`2017. ECF No. 30 (“Obj.”). Mr. Stewart did not file a response
`to the objections.
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`STANDARD
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`The district court may accept those portions of the
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`findings and recommendation that are not objected to if it is
`satisfied that there is no clear error on the face of the
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`record. 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). If a
`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.” 28 U.S.C.
`§ 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
`original)).
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`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.” Freeman v.
`DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006). The
`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. United
`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
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`matter to the magistrate judge with instructions.” Local Rule
`74.2. 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.”
`DISCUSSION
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`The parties have not objected to Judge Puglisi’s
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`finding that Plaintiff is entitled to default judgment against
`Mr. Stewart or to the award of only $750 in statutory damages to
`Plaintiff. 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
`Recommendation.
`I.
`Plaintiff Correctly Asserts That It Is Entitled to a
`Permanent Injunction and Order
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`The Copyright Act authorizes a court to “grant
`temporary and final injunctions on such terms as it may deem
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`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
`injunction.” eBay Inc. v. MercExchange, LLC, 547 U.S. 388, 391
`(2006). “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). However,
`irreparable harm is not presumed even where infringement has
`been found. 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
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`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
`involving BitTorrent. 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. Plaintiff will
`likely suffer irreparable harm absent an injunction for which
`monetary damages would be inadequate because of the nature of
`BitTorrent. 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
`users.”). 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
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`titles that are “consistently” downloaded or shared on
`BitTorrent, including one that was downloaded or shared fifteen
`times. 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
`infringing activity.”).
`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. Finally,
`preventing further copyright infringement undoubtedly serves the
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`public interest.
`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. Mr. Stewart was identified by his
`father, the subscriber. First Am. Compl. ¶ 12. As the
`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
`documents. ECF No. 22; ECF No. 24-1, ¶ 5. Under such
`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
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`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.
`21, 2017).
`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
`injunction.” 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.
`II. 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
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`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). 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 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, Plaintiff’s claims against Mr. Stewart are not
`frivolous, and the factual and legal arguments asserted appear
`objectively reasonable. Second, by obtaining default judgment
`against Mr. Stewart, Plaintiff has succeeded to a certain
`degree. 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
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`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). Especially as
`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
`particular action. And though a copyright holder who acquires
`experience litigating similar claims may, due to the time and
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`1 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.
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`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. Though one
`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
`either. 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
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`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
`(1994). With respect to deterrence, the Court has already found
`that Mr. Stewart will be subject to a $750 statutory award. Mr.
`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
`award here. Plaintiff thus appears to accept that it has been
`compensated sufficiently for its damages. Rewarding plaintiffs
`who have already been compensated for bringing claims does not
`further the purposes of the Copyright Act. However, without
`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
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`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
`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.
`“The prevailing market rate in the community is
`indicative of a reasonable hourly rate.” Jordan v. Multnomah
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`Cty., 815 F.2d 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 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
`many attorneys.” 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
`Mr. Culpepper. 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
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`similar case. 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
`Default Judgment. 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. Id. at
`1276. 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.
`17
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`Case 1:17-cv-00034-ACK-RLP Document 32 Filed 10/24/17 Page 18 of 22 PageID #:
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`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). District
`courts have authority to reduce hours billed in block format
`because it is difficult to ascertain how much time counsel spent
`on specified tasks. Id. 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
`complaint. While Plaintiff’s counsel did make some additions
`and edits regarding Mr. Stewart, including adding an exhibit to
`18
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`
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`
`Case 1:17-cv-00034-ACK-RLP Document 32 Filed 10/24/17 Page 19 of 22 PageID #:
` 244
`
`the complaint, these edits do not require much legal skill or
`attention. 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. While
`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. The Court
`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. Mr. Culpepper
`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
`19
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`Case 1:17-cv-00034-ACK-RLP Document 32 Filed 10/24/17 Page 20 of 22 PageID #:
` 245
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`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 ‘form-
`pleading’ necessitating little, if any legal skill or
`attention.” Dallas Buyers Club, LLC v. Madsen, No. C14-1153RAJ,
`2015 WL 6680260, at *6 (W.D. Wash. Nov. 2, 2015) (collecting
`cases). However, in those cases, counsel appears to have
`requested higher fees than what was requested here. See, e.g.,
`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.
`CONCLUSION
`
`For the foregoing reasons, the Court ADOPTS IN PART
`
`
`AND REJECTS IN PART the Findings and Recommendation to Grant in
`20
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`Case 1:17-cv-00034-ACK-RLP Document 32 Filed 10/24/17 Page 21 of 22 PageID #:
` 246
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`Part and Deny in Part Plaintiff Cook Productions, LLC’s Motion
`for Entry of Default Judgment Against Defendant Alex Stewart, as
`follows:
`
`(1) Default judgment shall be entered in Plaintiff’s
`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. 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
`DENIED;
`
`(4) 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;
`(5) Plaintiff is GRANTED an award of $750 in
`statutory damages; and
`(6) Plaintiff is GRANTED attorneys’ fees in the
`amount of $1,000.
`
`
`
`
`
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`
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`Case 1:17-cv-00034-ACK-RLP Document 32 Filed 10/24/17 Page 22 of 22 PageID #:
` 247
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`
`
`IT IS SO ORDERED.
`DATED: Honolulu, Hawaii, October 24, 2017.
`
`
`
`
`
`
`
`
`
`
`
`Cook Productions, LLC, v. 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.
`
`
`
`
`22
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`________________________________
`Alan C. Kay
`Sr. United States District Judge
`
`
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