3:15-cv-00866-SB 

Page 1 

Defendant’s Motion for Award of Costs & Fees

David H. Madden 

Mersenne Law 

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

(503)679-1671 

ecf@mersenne.com 

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

COBBLER NEVADA, LLC, 

Plaintiff 

v. 

Thomas GONZALES, 

Defendant 

)

)

)

)

)

)

)

)

)

Civil Action No.: ........... 3:15-cv-00866-SB 

MOTION FOR AWARD OF COSTS AND 

ATTORNEY FEES TO PREVAILING 

PARTY 

CERTIFICATES OF COMPLIANCE

In compliance with LR 7-1, the undersigned certifies that counsel for 

Defendant GONZALES has made a good-faith effort to resolve the matters 

contained within this motion through personal or telephone conferences, 

but was unable to do so. 

This brief complies with the applicable word-count limitation under LR 

54-3(e) because it contains 2,798 words, including headings, footnotes, 

and quotations, but excluding the caption, table of contents, table of cases 

and authorities, signature block, exhibits, and any certificates of counsel. 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 1 of 26
 

3:15-cv-00866-SB 

Page 2 

Defendant’s Motion for Award of Costs & Fees

IN ACCORDANCE with Fed. R. Civ. P. 54, LR 54-1, 17 U.S.C. § 505 and other authorities, 

Defendant Thomas GONZALES moves the Court for an award of his costs and fees as 

the prevailing party on Plaintiff’s indirect-infringement claim. He also urges the Court 

to enter judgment in his favor on the direct-infringement claim Plaintiff brought against 

him, despite Plaintiff’s recent, transparent attempt to avoid liability for making such a 

meritless accusation. This motion is supported by the following Memorandum of 

Points and Authorities and the attached documentary exhibits.

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 2 of 26
 

3:15-cv-00866-SB 

Page i 

Defendant’s Motion for Award of Costs & Fees

TABLE OF CONTENTS

Cases ............................................................................................................................... i

Statutes ........................................................................................................................... i

Introduction................................................................................................................... 3

Copyright Trolling ......................................................................................................... 3

Cobbler Nevada v. Gonzales Procedural History .......................................................... 5

Legal Argument .............................................................................................................. 6

Defendant is the Prevailing Party on Plaintiff’s “Indirect Infringement” Claim ......... 7

Defendant is the Prevailing Party on Plaintiff’s “Direct Infringement” Claim ............ 7

Defendant is Entitled to His Costs and Reasonable Attorney Fees ............................ 8

Amount of Fees and Costs ........................................................................................... 12

Conclusion ................................................................................................................... 13

Exhibit A Bill of Costs ...................................................................................................... 14

Exhibit B Attorney Time Expended ................................................................................. 15

Exhibit C Oregon State Bar Economic Survey ................................................................. 16

Certificate of Service ........................................................................................................ 17

CASES

Bridgeport Music v. WB Music Corp., 520 F.3d 588 (6th Cir. 2008) 9 

CRST Van Expedited, Inc. v. EEOC, 587 U.S. ____ (2016) 8 

Fogerty v. Fantasy Inc., 510 U.S. 517 (1994) 8, 9, 11 

Kirtsaeng v. John Wiley & Sons, 579 U.S. ____ (2016) 8, 9, 11 

STATUTES

17 U.S.C. § 504 Statutory Damages ................................................................................... 3 

17 U.S.C. § 505 Costs and Attorney’s Fees .................................................................... 3, 8 

28 U.S.C. § 1338 Exclusive Jurisdiction of Copyright Claims ............................................ 4 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 3 of 26
 

3:15-cv-00866-SB 

Page 3 

Defendant’s Motion for Award of Costs & Fees

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

The present action is one of a large number of identical cases filed in this district by 

Plaintiff’s counsel on behalf of various movie production companies. They exploit a 

quirk in U.S. copyright law, and a clear understanding of the economic and litigation 

model is critical for interpreting the posture of the present case and evaluating 

Defendant’s request for costs and fees. 

As a preliminary matter, Defendant notes that the vernacular for discussing these 

cases contains some colorful terms1, which plaintiffs often contend are prejudicial and 

inflammatory – sometimes going so far as to file motions to strike such discussion. 

Defendant will mention the terms for purposes of explanation only; he trusts that the 

Court will not be unduly swayed thereby. To be clear, Defendant does not contend that 

Plaintiff or its attorney, Mr. Crowell, is a literal troll (or any other sort of ogre), and 

there is no evidence whatsoever that Mr. Gonzales is a pirate of any stripe. 

COPYRIGHT TROLLING

U.S. copyright law, 17 U.S.C. §§ 501 et seq., contains two provisions that 

incentivize the litigation strategy Plaintiff has pursued in this case and its brethren. 

First, 17 U.S.C. § 504(c) allows statutory damages from as little as $750 ($200 in some 

situations) to as much as $30,000, with further upward deviations to $150,000 

authorized in the text. Damages within this wide range are available to a prevailing 

plaintiff with no evidence at all that the infringing conduct caused any harm. And 

second, 17 U.S.C. § 505 authorizes the prevailing party to recover “full costs [... and ...] 

 

1

 For example, “troll,” “pirate,” and “swarm.” 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 4 of 26
 

3:15-cv-00866-SB 

Page 4 

Defendant’s Motion for Award of Costs & Fees

a reasonable attorney’s fee” against its opponent. 

Since the district courts have exclusive jurisdiction over copyright claims (28 

U.S.C. § 1338(a)), the statutes combine to permit a plaintiff to ‘make a federal case out 

of’ any alleged infringement with absolutely no requirement to prove damages and an 

unwilling “client” on the hook for all of its attorney’s fees. 

Yet even this stout lever to extract settlements is not the only tool available to 

plaintiffs. Because of the complex, technical computer details of the allegations, 

plaintiffs in these cases require assistance from the Court on at least two occasions: first, 

to identify the person who pays the bill for Internet service at the location where 

infringement is alleged; and second, to compel that person’s pre-naming testimony 

(ostensibly to permit the plaintiff to decide whether to apply the lever to the subscriber 

or to someone else.) 

To the Court, and to the rare attorney who becomes involved at this early stage, 

these procedures are relatively transparent and comprehensible, but to the lay person 

(usually without counsel) who is subjected to them, they seem to be a barrage of 

unfamiliar and dangerous legal threats: a notice from their ISP about a lawsuit and a 

short deadline to appear and be heard on a motion to quash, followed by vaguely 

threatening letters from plaintiff’s attorney and then a subpoena to appear and testify 

under oath. At the deposition, the non-party witness will certainly be apprised of the 

seriousness of the matter, the upper end of the damages range, and the fact that anyone 

who contests the allegations will end up paying the plaintiff’s costs and attorney fees in 

the course of making the (very detailed, intricate and technically challenging) proof. 

Small wonder, then, that virtually every Internet subscriber targeted by this scheme 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 5 of 26
 

3:15-cv-00866-SB 

Page 5 

Defendant’s Motion for Award of Costs & Fees

chooses settlement (on inexplicably unfavorable stipulated terms). 

COBBLER NEVADA V. GONZALES PROCEDURAL HISTORY

The present case was filed in May, 2015, alleging copyright infringement against a Doe 

identified only by a computer address and seeking statutory damages and attorney fees 

(docket #1, ¶ 36). A first round of early discovery to the Internet Service Provider was 

authorized on the same day (docket #3, 7). Two months later, Plaintiff sought (and 

received) authorization to conduct a Rule 45 deposition of the Internet subscriber 

(docket #8-22), a non-party at the time who is now before the Court as defendant 

GONZALES. After the deposition (at which GONZALES was unrepresented), Plaintiff’s 

counsel apparently felt that he had uncovered sufficient evidence to charge Mr. 

GONZALES with both direct and indirect copyright infringement, and he did so in the 

first amended complaint filed 4 November 2015 (docket #24). 

Mr. GONZALES moved to dismiss the indirect infringement count as not 

cognizable under existing law or under a good-faith proposal for an extension of 

existing law (docket #27), and after a full complement of briefing (docket #27, 29, 30) 

and hearing (docket #34), the Court agreed, “declin[ing] to extend contributory 

infringement liability to an individual who has not actively encouraged nor materially 

contributed to any infringing activity.” (Findings & Recommendation, docket #35). 

Plaintiff objected vigorously (docket #37) but to no avail: Judge Brown adopted the 

magistrate judge’s Findings & Recommendation by order of 8 June 2016 (docket #39). 

This Order also dismissed the direct infringement count with leave to amend. 

Plaintiff filed a purported second amended complaint on 5 July 2016 (docket 

#41), retreating to its original position that the identity of the alleged infringer is 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 6 of 26
 

3:15-cv-00866-SB 

Page 6 

Defendant’s Motion for Award of Costs & Fees

unknown. That complaint alleges (with regard to defendant GONZALES) only that Mr. 

GONZALES “provided internet service to a limited number of parties at [a] residence 

...” (¶ 18), a knowing mischaracterization of fact that – even if it were true – would not 

create liability under the Copyright Act. However, Plaintiff’s counsel stated in a Rule 16 

conference conducted 11 July 2016 that Mr. GONZALES remains a target of suspicion 

and might be named again. 

After the Rule 16 conference, the Court issued an Order [for Plaintiff] to Show 

Cause why the matter should not be dismissed for Plaintiff’s failure to cure the 

deficiencies of its allegations against GONZALES, or alternatively for its failure to 

identify the Doe defendant in a timely manner (it has now been fourteen months since 

the Court first authorized discovery that Plaintiff represented would unmask the Doe). 

In response (and after the undersigned met & conferred with Plaintiff’s counsel 

regarding the present Motion for Costs & Fees), Plaintiff filed a voluntary dismissal 

without prejudice under Fed. R. Civ. P. 41(a)(1)(A)(i). 

LEGAL ARGUMENT

GONZALES appreciates Plaintiff’s long-delayed (and only implicit) acknowledgement 

that it cannot state a claim against him (notwithstanding its conflicting statement that he 

remains under suspicion). Nevertheless, the Court should look carefully at this matter 

before allowing Plaintiff to succeed with its attempted “cut and run.” And, in any event, 

the Court should GRANT the present motion to award costs and fees, because: 

 Defendant GONZALES is the prevailing party on the “indirect copyright 

infringement” claim; 

 Defendant GONZALES was accused of direct copyright infringement, and as a 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 7 of 26
 

3:15-cv-00866-SB 

Page 7 

Defendant’s Motion for Award of Costs & Fees

result of his efforts at defending those allegations, he is no longer accused of 

such infringement; 

 35 U.S.C. § 505 permits the prevailing party to recover his full costs, including 

reasonable attorney fees, in any civil action under the Copyright Act; and 

 The circumstances in the present case support the award of costs and fees 

against Plaintiff and in favor of Defendant. 

Defendant is the Prevailing Party on Plaintiff’s “Indirect Infringement” 

Claim 

Plaintiff advanced a theory of liability against Defendant that was dismissed as legally 

inadequate under the facts that Plaintiff was able to plead. Plaintiff has never suggested 

that it had any other factual basis to support the claim, and its most recent amended 

complaint does not even assert that an unknown party is liable for indirect copyright 

infringement. Defendant is unquestionably the prevailing party on this portion of 

Plaintiff’s case. 

Defendant is the Prevailing Party on Plaintiff’s “Direct Infringement” 

Claim 

Although Plaintiff styled its R.41 dismissal of the claims against GONZALES as “without 

prejudice,” under current federal jurisprudence, GONZALES is the prevailing party here 

as well. The Supreme Court recently addressed the question of who is a prevailing 

party, and stated: 

Common sense undermines the notion that a defendant cannot 

“prevail” unless the relevant disposition is on the merits. Plaintiffs and 

defendants come to court with different objectives. A plaintiff seeks a 

material alteration in the legal relationship between the parties. A 

defendant seeks to prevent this alteration to the extent it is in the 

plaintiff’s favor. The defendant, of course, might prefer a judgment 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 8 of 26
 

3:15-cv-00866-SB 

Page 8 

Defendant’s Motion for Award of Costs & Fees

vindicating its position regarding the substantive merits of the plaintiff’s 

allegations. The defendant has, however, fulfilled its primary objective 

whenever the plaintiff’s challenge is rebuffed, irrespective of the precise 

reason for the court’s decision. The defendant may prevail even if the 

court’s final judgment rejects the plaintiff’s claim for a nonmerits 

reason. 

CRST Van Expedited, Inc. v. EEOC, 587 U.S. ____ (2016) 

Plaintiff, having been given an opportunity to amend and state a valid claim against 

GONZALES, first chose to drop substantive allegations against him, and then to dismiss 

the case entirely. Defendant has fulfilled his primary objective: to rebuff Plaintiff’s 

allegations (which were not merely inadequate, but actually baseless). Although 

Plaintiff now hopes to slouch out of the courthouse without accounting for the harm it 

has done to Mr. GONZALES, the Court should not countenance such behavior. 

Defendant is Entitled to His Costs and Reasonable Attorney Fees 

Section 505 of the Copyright Act authorizes the recovery of full costs against any party, 

and the award of reasonable attorney’s fees to the prevailing party as part of the costs. 

“A court may not treat prevailing plaintiffs and prevailing defendants differently [in a 

copyright case],” Kirtsaeng v. John Wiley & Sons, 579 U.S. ____ (2016); see also Fogerty 

v. Fantasy Inc., 510 U.S. 517 (1994). Costs and fees are awarded in the discretion of 

the court, neither as a matter of course (Kirtsaeng at 4) nor in the court’s 

“unconstrained discretion,” (Kirtsaeng at 6), but rather in discretion informed by 

several nonexclusive factors: 

 Frivolousness 

 Motivation 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 9 of 26
 

3:15-cv-00866-SB 

Page 9 

Defendant’s Motion for Award of Costs & Fees

 Objective unreasonableness2

 Considerations of compensation and deterrence 

all as they advance the Copyright Act’s goals of “enriching the general public through 

access to creative works,” Fogerty at 517-18. 

Plaintiff’s Claims are Frivolous 

Plaintiff brought two claims against Defendant GONZALES: one was legally inadequate, 

and the other was re-asserted against an unknown party who remained unknown

despite fourteen months of litigation and considerable inconvenience, anxiety and 

expense borne by Defendant (and now, even that claim has been dropped). In fact, 

although it is conceivable that Plaintiff’s claims, brought in this single case, were merely

frivolous, Plaintiff has brought over 200 cases across the United States, against more 

than 2,500 Does (as related in the captions of those cases). Defendant has reviewed a 

sampling of these, and without exception they match the procedure outlined earlier. It 

is clear that Plaintiff is intentionally pursuing an aggressive litigation strategy that, if not 

malicious in intent, is indistinguishable from malificent in execution. 

Plaintiff’s Claims are Overagressive and Brought for Improper Purpose 

Like the plaintiff in Bridgeport Music v. WB Music Corp., 520 F.3d 588 (6th Cir., 2008, 

mentioned in Kirtsaeng), Plaintiff has filed hundreds of cases against thousands of Does 

across the United States, alleging in every case reviewed by Defendant the same things 

that were alleged here: that an unknown person downloaded The Cobbler and that 

court assistance is the only way to bring the miscreant to justice. However, to 

 

2

 “Objective unreasonableness” was noted to be “an important factor in assessing fee applications—not 

the controlling one,” Kirtsaeng at 10. 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 10 of 26
 

3:15-cv-00866-SB 

Page 10 

Defendant’s Motion for Award of Costs & Fees

Defendant’s knowledge, no case has ever proceeded to trial, and Plaintiff’s allegations 

have never been exposed to adversarial scrutiny. 

Further, like the plaintiff in Bridgeport, Plaintiff has pressed futile claims (both the 

legally-insufficient indirect-infringement claim, and the direct-infringement claim 

unsupported by any relevant factual allegations). Here, and in its hundreds of other 

cases, even if Plaintiff is not intending to capitalize on the wide and unpredictable 

liability a target faces and the substantial attorney fees its counsel are able to rack up, it 

has undeniably maneuvered itself into a position where those statutory damages and 

fees incentivize the overreaching settlements that reward and encourage this litigation 

strategy. 

Plaintiff’s Claims are Objectively Unreasonable 

One of Plaintiff’s claims was dismissed with prejudice on Defendant’s 12(b)(6) motion, 

and the other was dismissed sua sponte by the Court. Yet Plaintiff disputed the motion 

to dismiss vigorously, and objected to the Findings and Recommendations, and is 

expected to contest the present motion as well. These actions are objectively 

unreasonable and served no purpose but to increase Defendant’s costs and the nonfinancial stresses on him of the litigation. 

Defendant Should be Compensated for Pressing a Meritorious Defense to a 

Patently Meritless Copyright Claim 

The U.S. Supreme Court in both Fogerty and Kirtsaeng endorsed and approved the use 

of fee awards to incentivize a party – defendant or plaintiff – to keep fighting against an 

unreasonable opposing party, noting that the “successful defense of a copyright 

infringement action may further the policies of the Copyright Act every bit as much as a 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 11 of 26
 

3:15-cv-00866-SB 

Page 11 

Defendant’s Motion for Award of Costs & Fees

successful prosecution of an infringement claim.” Fogerty, 510 U.S. at 527. Kirtsaeng is 

even more pointed: 

When a litigant – whether plaintiff or defendant – is clearly correct, the 

likelihood that he will recover fees from the opposing (i.e.

unreasonable) party gives him an incentive to litigate the case all the 

way to the end. [...] The copyright holder with no reasonable 

infringement claim has good reason not to bring suit in the first 

instance (knowing he cannot force a settlement and will have to 

proceed to judgment)[.] 

Kirtsaeng 579 U.S. at 7. 

As discussed earlier, Plaintiff COBBLER NEVADA LLC has no reasonable 

infringement claim against Defendant GONZALES, and it never should have brought 

suit against him in the first instance. But now, having done so, Plaintiff should be 

charged for the full amount of cost and expense it has forced Defendant to bear. 

Defendant Should be Compensated to Deter Plaintiff from Pursuing Similar 

Overaggressive Claims 

A final consideration influencing the Court’s award of fees is the ability of such an 

award to deter unreasonable copyright litigation – including the pursuit of invalid 

claims or claims not supported (or contraindicated) by facts known to the plaintiff at 

the time of filing, as in the matter at bar. 

Certainly, the Court should not discourage legitimate enforcement of valid and 

valuable copyrights, but neither may it discourage a prevailing defendant such as Mr. 

GONZALES (Kirtsaeng, Fogerty) from presenting a meritorious defense. And in fact, 

failing to award fees to the prevailing defendant here will encourage the filing of even 

more “thin” cases – equivocal allegations that threaten everyone but fail to clearly 

implicate anyone, and allegations that (even if true) fail to create liability – the cases 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 12 of 26
 

3:15-cv-00866-SB 

Page 12 

Defendant’s Motion for Award of Costs & Fees

quite literally pay for themselves, if Plaintiff risks no downside by filing them. 

AMOUNT OF FEES AND COSTS

Appendix A lists costs incurred by Defendant in his successful defense of Plaintiff’s 

claims, and Appendix B lists time claimed by Defendant’s attorney in preparing and 

presenting this defense. Appendix C presents Economic Survey excerpts, per L.R. 54-

3(a). 

Defendant’s counsel is a 13th-year attorney, admitted in California and Oregon, 

who practices mainly in patent and IP law. He holds a degree in electrical engineering 

from Johns Hopkins University and worked as a computer and network engineer for 

over twenty years. He has devoted considerable time and programming effort to 

understanding the technical underpinnings of these BitTorrent copyright cases, and has 

defended a number of individuals threatened by them. His normal billing rate is 

$32500/hour, but here he seeks only 31200/hour, a rate that has been awarded to 

Plaintiff’s counsel in a comparable case (see Voltage Pictures v. Pecsok, 3:14-cv-1407-AC, 

2015 WL 3892394). 

The amounts claimed relate only to the successful defense of the indirectinfringement claim (including responding to Plaintiff’s objections to this Court’s 

Findings and Recommendations). Time spent preparing the present motion is not

included, as that time (like Plaintiff’s time prior to service in these cases) must be spent 

in any event, and should not be part of the lever used to threaten an opposing party. 

The Court should award Defendant costs in the amount of $264.60 and 

reasonable attorney’s fees in the amount of $17,222.40. 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 13 of 26
 

3:15-cv-00866-SB 

Page 13 

Defendant’s Motion for Award of Costs & Fees

CONCLUSION

For the foregoing reasons, Defendant respectfully requests that the Court grant the 

following relief on this motion, as follows: 

 Dismissal of the present action with prejudice; and 

 Award of his costs and fees, 

and for such other and further relief as the Court deems appropriate. 

19 July 2016 

Date David H. Madden, SBN OR080396 

Attorney for Defendant Thomas GONZALES 

Mersenne Law 

9600 S.W. Oak Street 

Suite 500 

Tigard, Oregon 97223 

dhm@mersenne.com 

(503)679-1671 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 14 of 26
 

3:15-cv-00866-ST Exhibit A 

EXHIBIT A

BILL OF COSTS

Date Source Name Memo Account Amount 

Gonzales, 

Thomas 

12/10/2015 Portland @ Klarquist Parking 2.40 

03/08/2016 Portland MultCo DHS Parking 3.00 

03/14/2016 SmartPark Gonzales MTD hearing Parking 7.00 

04/13/2016 Jill Jessup 3/14/2016 MTD Hearing Court Reporting 252.20 

Total 

Gonzales, 

Thomas 264.60 

TOTAL 264.60 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 15 of 26
AO 133 (Rev. 12/09) Bill of Costs

UNITED STATES DISTRICT COURT

for the

__________ District of __________

)

)

)

)

)

v. Case No.:

BILL OF COSTS

Judgment having been entered in the above entitled action on against , Date

the Clerk is requested to tax the following as costs:

Fees of the Clerk . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . $

Fees for service of summons and subpoena ..............................................

Fees for printed or electronically recorded transcripts necessarily obtained for use in the case . . . . . . 

Fees and disbursements for printing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Fees for witnesses (itemize on page two) ...................................................

Fees for exemplification and the costs of making copies of any materials where the copies are

necessarily obtained for use in the case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 

Docket fees under 28 U.S.C. 1923 .....................................................

Costs as shown on Mandate of Court of Appeals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

Compensation of court-appointed experts ...............................................

Compensation of interpreters and costs of special interpretation services under 28 U.S.C. 1828 .....

Other costs (please itemize) .............................................................

TOTAL $

SPECIAL NOTE: Attach to your bill an itemization and documentation for requested costs in all categories.

Declaration

I declare under penalty of perjury that the foregoing costs are correct and were necessarily incurred in this action and that the

services for which fees have been charged were actually and necessarily performed. A copy of this bill has been served on all parties

in the following manner:

’ Electronic service ’ First class mail, postage prepaid

’ Other:

 s/ Attorney:

Name of Attorney:

For: Date:

Name of Claiming Party

Taxation of Costs

Costs are taxed in the amount of and included in the judgment.

By:

Clerk of Court Deputy Clerk Date

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 16 of 26
AO 133 (Rev. 12/09) Bill of Costs

UNITED STATES DISTRICT COURT

Witness Fees (computation, cf. 28 U.S.C. 1821 for statutory fees)

ATTENDANCE SUBSISTENCE MILEAGE

Total Cost

NAME , CITY AND STATE OF RESIDENCE Total

Cost

Total

Cost

Total

Cost

Each Witness

Days Days Miles

TOTAL

NOTICE

Section 1924, Title 28, U.S. Code (effective September 1, 1948) provides:

“Sec. 1924. Verification of bill of costs.”

“Before any bill of costs is taxed, the party claiming any item of cost or disbursement shall attach thereto an affidavit, made by himself or by

his duly authorized attorney or agent having knowledge of the facts, that such item is correct and has been necessarily incurred in the case and

that the services for which fees have been charged were actually and necessarily performed.”

See also Section 1920 of Title 28, which reads in part as follows:

“A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.”

The Federal Rules of Civil Procedure contain the following provisions:

RULE 54(d)(1)

Costs Other than Attorneys’ Fees.

Unless a federal statute, these rules, or a court order provides otherwise, costs — other than attorney's fees — should be allowed to the

prevailing party. But costs against the United States, its officers, and its agencies may be imposed only to the extent allowed by law. The clerk

may tax costs on 14 day's notice. On motion served within the next 7 days, the court may review the clerk's action.

RULE 6

(d) Additional Time After Certain Kinds of Service.

When a party may or must act within a specified time after service and service is made under Rule5(b)(2)(C), (D), (E), or (F), 3 days are

added after the period would otherwise expire under Rule 6(a).

RULE 58(e)

Cost or Fee Awards: 

Ordinarily, the entry of judgment may not be delayed, nor the time for appeal extended, in order to tax costs or award fees. But if a

timely motion for attorney's fees is made under Rule 54(d)(2), the court may act before a notice of appeal has been filed and become

effective to order that the motion have the same effect under Federal Rule of Appellate Procedure 4(a)(4) as a timely motion under Rule 59.

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 17 of 26
 

3:15-cv-00866-ST Exhibit B 

EXHIBIT B

ATTORNEY TIME EXPENDED

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 18 of 26
 2:47 PM

 07/17/16

 Mersenne Law

 Time by Job Detail

 All Transactions

Date Notes Duration

12/09/2015 Initial client conference 1.40

12/16/2015 Research indirect / contributory / inducing infringement liability 1.30

12/18/2015 Tel conf re: current status; TG expects deposition transcript this weekend, will bring Monday w/ ot 0.10

12/19/2015 Research secondary infringement liability; begin prep of 12b6 mtn 2.50

12/20/2015 Research, draft 12(b)(6) on indirect infringement claim 3.30

12/21/2015 Notice of rep to plaintiff 0.30

12/22/2015 Email w/ Crowell re: MTD 0.60

12/22/2015 Initial readthru deposition & exhibits 1.20

12/23/2015 Continue deposition / exhibit review 1.30

12/23/2015 Review elder abuse cases & new FRCP 0.50

12/23/2015 Research effect of DMCA notice (not received, not for allegedly-infringed work) 1.10

12/24/2015 Review UMG v. Shelter Capital & citing cases 1.00

12/28/2015 Forward consent judgment offer to client; discuss case background with DHS; research "red flag" kno 1.60

12/28/2015 Wrap up 12(b)(6) motion (expand elements of 3 possible theories of indirect infringement) 2.30

01/05/2016 MTD Reply: review response, read Ellison case 0.40

01/09/2016 Research Cobbler cases & cited precedent; complete first draft of MTD reply brief 5.40

01/20/2016 Review, drafting reply MTD 1.20

01/21/2016 Wrap up MTD Reply draft; prep & sign filing copy; file via PACER 2.50

02/03/2016 Email conv. w/ TG re: current case status, Motion to Dismiss scheduling, future activity 0.40

02/04/2016 Draft RFPs & proposal to begin discovery conf from Crowell 0.40

02/14/2016 Dft's first RFP, RFA 1.30

02/15/2016 Email re: info for answer 0.20

02/23/2016 Client conference re: MTD, Answer 0.50

02/23/2016 Investigate Adult Foster Home rules & policies 0.80

03/06/2016 Prepare answer 2.30

03/06/2016 Program to retrieve Cobbler torrent files 0.30

03/08/2016 Meet w/ Kathlyn Walker & AFH personnel 0.70

03/08/2016 Meet w/ MultCo DHS re: AFH licensing, regulations, policies 0.30

03/08/2016 Meet w/ MultCo DHS re: AFH compliance reports & other information available 0.40

03/08/2016 Draft BitTorrent tech allegations 1.20

03/09/2016 Prepare remarks & notes for MTD hearing 1.70

03/10/2016 Prep remarks, case notes, practice delivery 4.00

03/11/2016 Mock hearing w/ JG, KH 2.00

03/14/2016 Final review, prep for MTD hearing 0.50

03/14/2016 Motion to Dismiss hearing 1.00

03/14/2016 MTD debrief, next steps 0.50

03/14/2016 Client email reporting outcome & next steps 0.30

03/21/2016 M&C w/ CC re: pltf will dismiss w/ prejudice, no costs/fees 0.20

03/21/2016 Report MTD F&R and CC's "walkaway" offer to TG 0.40

03/28/2016 Discuss Crowell "walkaway" offer w/ Tom Gonzales 0.30

03/29/2016 Respond to Crowell "walkaway" offer 0.50

03/29/2016 Investigate magistrate F&R practice - FRCP72 0.20

03/29/2016 Look into Australian authority re: technical competence of German investigators & "sharp practices" 0.50

03/29/2016 Further email correspondence w/ Crowell: in hole, stop digging. 0.30

04/04/2016 Review COBBLER objections, start drafting response 1.60

04/11/2016 Complete first draft of Response to Objections 4.40

04/12/2016 Review & mark up MTD hearing transcript 0.70

04/18/2016 Final editing Rsp to Objections; prep & file 3.20

04/19/2016 Prep & mail Judge's Copy 0.50

04/29/2016 Research film licensing procedures 0.40

 Page 1 of 2

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 19 of 26
 2:47 PM

 07/17/16

 Mersenne Law

 Time by Job Detail

 All Transactions

06/08/2016 Download, review, report order re: Beckerman F&R 0.30

07/05/2016 Research rules for amending to completely switch parties 1.30

07/07/2016 M&C re: second amended complaint; CC to set up conference w/ court next week 0.90

07/11/2016 Review docket, 2AC, R.15 vs. R.21 caselaw for R.16 conference 0.50

07/11/2016 R.16 conf. Court takes matter under advisement. 0.40

07/11/2016 Michael Lied memo re: Fee Petitions in Federal Court 0.20

07/12/2016 Begin drafting fees motion -- introduction, copyright trolling description 3.40

07/12/2016 Fees motion - procedural history 0.90

07/12/2016 Fees motion - summary of argument 0.80

07/12/2016 Fees motion - direct-infringement claim 1.20

07/12/2016 Fees motion - 4 Kirtsaeng factors 1.70

07/13/2016 Email client re: OSC 0.30

07/14/2016 Tel conf w/ client re: recent developments, settlement possibility, future actions 0.20

07/14/2016 M&C email to Crowell re: fees motion 0.20

07/14/2016 Update fees mtn re: OSC; continue drafting compensation rationales 1.50

07/15/2016 Fees motion - "deterrence" 0.50

07/15/2016 Extract & format info from accounting system 1.20

Total Gonzales, Thomas 55.20

$17,222.40

 Page 2 of 2

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 20 of 26
 

3:15-cv-00866-ST Exhibit C

EXHIBIT C

OREGON STATE BAR ECONOMIC SURVEY

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 21 of 26
Oregon state bar

2012 economic survey

August 2012 (Revised July 2013)

©2012 Oregon State Bar

ALL RIGHTS RESERVED

Addendum Includes Additional Analyses by Race/Ethnicity Categories

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 22 of 26
Oregon State Bar 2012 Economic Survey 29

Billing Rate: The average, median, 25th percentile, 75th percentile, 95th percentile and high hourly billing rates are included in the following table. This data 

includes attorneys in private practice working full-time, part-time by choice, or 

part-time due to lack of legal work. For Oregon, the average and median billing 

rates of $242 and $225 per hour compare to $213 and $200 in the 2007 survey.

Hourly Billing Rate All Respondents – Private Practice

Hourly Billing 

Rate Oregon Portland

TriCountyUpper

Valley

Lower 

Valley

Southern

Oregon

Eastern

Oregon

Oregon

Coast

Average $242 $284 $216 $218 $230 $215 $209 $190

Median $225 $275 $210 $208 $225 $200 $200 $188

Low $20 $60 $21 $20 $20 $115 $45 $33

25th Percentile $180 $200 $175 $170 $176 $200 $165 $171

75th Percentile $295 $350 $250 $275 $250 $240 $243 $200

95th Percentile $405 $450 $350 $323 $394 $269 $300 $289

High $675 $675 $525 $425 $550 $375 $510 $300

Number of

Respondents 964 366 261 91 90 54 72 30

Total Years Admitted to Practice: Average, median, 25th percentile, 75th percentile, and 95th percentile hourly billing rates by total years admitted to practice are presented in the following table. This data includes attorneys in private 

practice working full-time, part-time by choice, or part-time due to lack of legal 

work. For Oregon, the average and median billing rates were generally higher 

with more years admitted to practice. Regional data exhibits some variations, 

but generally follows the trend of higher rates as years of experience increase.

Hourly Billing Rate by Total Years Admitted to Practice – Private Practice

Years Admitted Oregon Portland

TriCountyUpper

Valley

Lower

Valley

Southern

Oregon

Eastern 

Oregon

Oregon

Coast

0-3 Years

Average $156 $182 $143 $150 $128 n/a $158 n/a

Median $163 $175 $150 $150 $150 n/a $165 n/a

25th 

Percentile $146 $163 $101 $146 $113 n/a $154 n/a

75th 

Percentile $185 $198 $198 $175 $169 n/a $165 n/a

95th 

Percentile $229 $246 $220 $193 $175 n/a $173 n/a

4-6 Years

Average $195 $210 $192 $183 $176 n/a $177 n/a

Median $198 $218 $200 $180 $183 n/a $185 n/a

25th 

Percentile $156 $160 $150 $160 $169 n/a $175 n/a

75th 

Percentile $233 $250 $250 $213 $196 n/a $200 n/a

95th 

Percentile $286 $295 $269 $258 $236 n/a $200 n/a

Billing Practices

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 23 of 26
30 Oregon State Bar 2012 Economic Survey

Hourly Billing Rate by Total Years Admitted to Practice – Private Practice Continued

Years Admitted Oregon Portland

TriCountyUpper

Valley

Lower

Valley

Southern

Oregon

Eastern 

Oregon

Oregon

Coast

7-9 Years

Average $228 $258 $209 $208 n/a n/a $168 n/a

Median $225 $250 $200 $185 n/a n/a $173 n/a

25th 

Percentile $186 $225 $187 $180 n/a n/a $150 n/a

75th 

Percentile $270 $295 $225 $200 n/a n/a $218 n/a

95th 

Percentile $334 $375 $300 $280 n/a n/a $236 n/a

10-12 Years

Average $247 $280 $221 n/a $244 n/a n/a n/a

Median $240 $275 $200 n/a $225 n/a n/a n/a

25th 

Percentile $196 $233 $176 n/a $225 n/a n/a n/a

75th 

Percentile $275 $300 $258 n/a $228 n/a n/a n/a

95th 

Percentile $369 $428 $290 n/a $314 n/a n/a n/a

13-15 Years

Average $253 $312 $213 $247 $239 n/a $180 n/a

Median $250 $300 $238 $265 $195 n/a $175 n/a

25th 

Percentile $185 $261 $153 $215 $183 n/a $175 n/a

75th 

Percentile $300 $379 $250 $290 $278 n/a $200 n/a

95th 

Percentile $428 $435 $335 $298 $380 n/a $200 n/a

16-20 Years

Average $226 $256 $200 $243 $209 $215 $215 n/a

Median $225 $250 $200 $250 $210 $225 $225 n/a

25th 

Percentile $180 $200 $155 $188 $179 $210 $183 n/a

75th 

Percentile $250 $300 $250 $288 $228 $225 $244 n/a

95th 

Percentile $350 $380 $331 $335 $255 $250 $264 n/a

21-30 Years

Average $267 $326 $212 $225 $277 $231 $203 $167

Median $250 $333 $220 $220 $250 $200 $200 $165

25th 

Percentile $200 $251 $175 $170 $225 $200 $150 $138

75th 

Percentile $350 $399 $250 $269 $300 $250 $224 $206

95th 

Percentile $450 $470 $313 $319 $411 $320 $300 $274

Over 30 

Years

Average $282 $340 $259 $270 $274 $229 $257 $217

Median $250 $350 $250 $275 $250 $225 $250 $200

25th 

Percentile $211 $275 $200 $240 $229 $200 $200 $195

75th 

Percentile $350 $400 $300 $300 $278 $250 $275 $250

95th 

Percentile $450 $500 $375 $350 $487 $275 $350 $285

Billing Practices

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 24 of 26
Oregon State Bar 2012 Economic Survey 31

Area of Private Practice: For attorneys in private practice, the average, median, 

25th percentile, 75th percentile, and 95th percentile hourly billing rate by area 

of private practice is presented in the following table. This data includes attorneys in private practice working full-time, part-time by choice, or part-time due 

to lack of legal work. For Oregon, the average hourly billing rates range from a 

low of $190 per hour for civil litigation-insurance defense to a high of $291 for 

civil litigation-defendant (excludes insurance defense) The highest median billing 

rate was $275 for both business/corporate - litigation and business/corporate - 

transactional. In general, the highest hourly billing rates were in Portland.

Hourly Billing Rate by Area of Practice – Private Practice

Area of Private Practice Oregon Portland

TriCountyUpper

Valley

Lower

Valley

Southern

Oregon

Eastern 

Oregon

Oregon

Coast

Bankruptcy

Average $269 $356 $231 n/a n/a $259 n/a n/a

Median $250 $380 $225 n/a n/a $250 n/a n/a

25th 

Percentile $210 $305 $200 n/a n/a $220 n/a n/a

75th 

Percentile $320 $410 $250 n/a n/a $250 n/a n/a

95th 

Percentile $416 $429 $312 n/a n/a $350 n/a n/a

Business/

Corporate 

– Litigation

Average $284 $311 $252 n/a n/a n/a n/a n/a

Median $275 $300 $248 n/a n/a n/a n/a n/a

25th 

Percentile $225 $255 $174 n/a n/a n/a n/a n/a

75th 

Percentile $328 $360 $258 n/a n/a n/a n/a n/a

95th 

Percentile $450 $450 $459 n/a n/a n/a n/a n/a

Business/ 

Corporate 

– Transactional

Average $285 $345 $235 $235 $251 n/a n/a n/a

Median $275 $350 $240 $240 $235 n/a n/a n/a

25th 

Percentile $204 $281 $175 $240 $200 n/a n/a n/a

75th 

Percentile $350 $405 $300 $275 $259 n/a n/a n/a

95th 

Percentile $468 $488 $350 $275 $383 n/a n/a n/a

Civil Litigation, 

Defendant 

(excludes Insurance Defense)

Average $291 $309 $233 n/a n/a n/a n/a n/a

Median $250 $275 $235 n/a n/a n/a n/a n/a

25th 

Percentile $225 $225 $210 n/a n/a n/a n/a n/a

75th 

Percentile $375 $375 $263 n/a n/a n/a n/a n/a

95th 

Percentile $450 $453 $293 n/a n/a n/a n/a n/a

Civil Litigation, 

Insurance Defense

Average $190 $194 $179 n/a n/a n/a n/a n/a

Median $180 $185 $170 n/a n/a n/a n/a n/a

25th 

Percentile $160 $165 $139 n/a n/a n/a n/a n/a

75th 

Percentile $205 $220 $196 n/a n/a n/a n/a n/a

95th 

Percentile $289 $289 $256 n/a n/a n/a n/a n/a

Billing Practices

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 25 of 26
 

3:15-cv-00866-ST Certificate of Service

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the document entitled: 

MOTION FOR AWARD OF COSTS AND ATTORNEY’S FEES TO PREVAILING PARTY 

was served upon the parties listed below on the date indicated, 

 by following state law for serving a summons in an action brought in courts of 

general jurisdiction where the district court is located or where service is made: 

 by delivery of a true copy of the document to the party to be served; 

 by delivering a true copy of the document to the dwelling house or usual place 

of abode of the person to be served, to any person 14 years of age or older 

residing in the dwelling house or usual place of abode of the person to be 

served; 

 by leaving a true copy of the document during working hours at an office 

maintained by the party to be served for the conduct of business, with the person 

who is apparently in charge; 

 by mailing a true copy of the document to the party by first class mail and by any 

of the following: certified, registered, or express mail with return receipt 

requested; 

 by delivering a copy of the document to the individual personally; 

 by leaving a copy of the document at the individual’s dwelling or usual place of 

abode with someone of suitable age and discretion who resides there; 

 by delivering a copy of the document to an agent authorized by appointment or by 

law to receive service of process; 

 by electronic filing notification (PACER); or

 other: courtesy copy by electronic mail to crowell@crowell-law.com 

Carl D. Crowell, Esq. 

Crowell Law 

943 Liberty Street S.E. 

P.O. Box 923 

Salem, Oregon 97308-0923 

Attorney for Plaintiff COBBLER NEVADA LLC 

 

Date David H. Madden 

Case 3:15-cv-00866-SB Document 47 Filed 07/19/16 Page 26 of 26