Hydentra HLP Int. Limited v. Tubenn.com et al

Filing 40

ORDER granting 37 Plaintiff's Motion for Default Judgment. The Clerk shall enter judgment awarding Plaintiff $8,100,000 in statutory damages and $22,045 in attorneys' fees and costs. Defendants and their respective agents, servants, and employees are permanently enjoined from infringing Plaintiff's copyrighted works. The Clerk shall terminate this case. Signed by Judge Douglas L Rayes on 10/26/16.(EJA)

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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Hydentra HLP Int. Limited, No. CV-15-00239-PHX-DLR Plaintiff, 10 11 v. 12 ORDER Tubenn.com, et al., 13 Defendants. 14 15 16 Before the Court is Plaintiff Hydentra HLP International Limited’s Motion for 17 Default Judgment Against Defendants Danh Manh Nguyen and Thai Nguyen. (Doc. 37.) 18 For the following reasons, the motion is granted. BACKGROUND 19 20 Plaintiff brought this action against various pornographic websites asserting 21 claims for copyright infringement based on the publication of numerous videos 22 copyrighted by Plaintiff. 23 discovery to determine the owners and operators of the offending websites, which the 24 Court granted in part. (Docs. 9, 12.) Based on this early discovery, Plaintiff amended its 25 complaint to name Danh Manh Nguyen and Thai Nguyen as Defendants. (Docs. 18, 28.) 26 Thereafter, Plaintiff moved for leave to serve Defendants, who are located in Vietnam, 27 via email. (Doc. 19.) The Court granted the motion and Plaintiff served Defendants via 28 email on October 26, 2015. (Docs. 21, 25-26.) Since then, Defendants have failed to (Doc. 1.) Plaintiff moved for leave to conduct limited 1 appear. On January 26, 2016, the Clerk of the Court entered default. (Doc. 33.) Plaintiff 2 now moves for default judgment pursuant to Fed. R. Civ. P. 55. (Doc. 37.) Plaintiff 3 seeks $8,100,000 in statutory damages, $22,045 in attorneys’ fees and costs, and a 4 permanent injunction enjoining Defendants and their respective agents, servants, and 5 employees from infringing upon Plaintiff’s copyrighted works. (Id.) 6 LEGAL STANDARD 7 8 When determining whether to enter a default judgment, the court should consider factors such as: 9 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 10 11 12 13 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In applying these factors, “the 14 well-pleaded factual allegations of the complaint are taken as true, except for those 15 allegations relating to damages.” Philip Morris USA, Inc. v. Castworld Prod., Inc., 219 16 F.R.D. 494, 498 (C.D. Cal. 2003). DISCUSSION 17 18 I. Entitlement to Default Judgment 19 The first three Eitel factors favor entry of default judgement. “A plaintiff bringing 20 a claim for copyright infringement must demonstrate (1) ownership of a valid copyright, 21 and (2) copying of constituent elements of the work that are original.” Funky Films, Inc. 22 v. Time Warner Entm’t Co., L.P., 462 F.3d 1072, 1076 (9th Cir. 2006) (internal 23 quotations and citation omitted). Plaintiff alleges that it owns the copyright to numerous 24 videos, and that Defendants displayed 18 of these copyrighted videos utilizing five 25 different websites, amounting to 54 separate instances of infringement. (Doc. 28, ¶¶ 44- 26 47.) 27 Director of Battleship Stance LLC, an intellectual property management and anti-piracy 28 investigation and enforcement company, and Jon Krogman, President of Hydrentra HLP Plaintiff substantiates these allegations with declarations from Jason Tucker, -2- 1 International Limited and its subsidiaries. (Docs. 37-2, 37-3.) 2 sufficiently alleged meritorious copyright infringement claims. Moreover, this Court 3 likely is the only forum in which Plaintiff may obtain relief. Defendants are located in 4 Vietnam, but the offending websites are hosted here in Arizona. 5 Plaintiff will be prejudiced if a default judgment is not granted because it “will likely be 6 without other recourse for recovery.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 7 1172, 1177 (C.D. Cal. 2002). 8 Thus, Plaintiff has The fourth factor weighs against entry of default judgment. (Doc. 28, ¶ 10.) Plaintiff seeks 9 $8,100,000 in statutory damages. Although Rule 55 does not limit the amount that can be 10 recovered through a default judgment, the substantial size of Plaintiff’s requested damage 11 award is cause for hesitation. 12 The fifth and sixth factors both weigh in favor of entry of default judgment. 13 Plaintiff substantiates its copyright infringement claims with the declarations of Tucker 14 and Krogman, and nothing suggests that these facts are subject to reasonable dispute. 15 Additionally, Defendants were served with the summons and complaint but have made 16 no effort to respond or otherwise participate in this action. 17 Defendants’ default was the result of excusable neglect. Nothing suggests that 18 Finally, the seventh factor generally weighs against entry of default judgment 19 because “[c]ases should be decided upon their merits whenever reasonably possible.” 20 Eitel, 782 F.2d at 1472. Defendants’ failure to participate in this litigation, however, 21 “makes a decision on the merits impractical, if not impossible.” PepsiCo, 238 F. Supp. 22 2d at 1177. On balance, the Court finds that the Eitel factors support entry of default 23 judgment against Defendants. 24 II. Damages 25 A copyright owner may recover statutory damages if the copyright was registered 26 with the United States Copyright Office before the date of infringement. 17 U.S.C. §§ 27 412, 504(a). Statutory damages may range from $750 to $30,000 per copyrighted work. 28 17 U.S.C. § 504(c)(1). The statutory maximum increases to $150,000 per copyrighted -3- 1 work in cases of willful infringement. § 504(c)(2). 2 Plaintiff requests that statutory maximum for each of the 54 separate instances of 3 copyright infringement, for a total of $8,100,000. Plaintiff has shown that the infringed- 4 upon videos were registered prior to infringement. (Doc. 37-2, ¶ 23; Doc. 37-3, ¶ 25.) 5 Plaintiff also alleges that Defendants’ infringement was willful, (Doc. 28, ¶¶ 60-61), 6 which the Court must accept as true. See Derek Andrew, Inc. v. Proof Apparel Corp., 7 528 F.3d 696, 702 (9th Cir. 2008) (noting that, as a result of the defendant’s default, “all 8 factual allegations in the complaint are deemed true, including the allegation of [the 9 defendant’s] willful infringement of [the plaintiff’s] trademarks”). Moreover, Plaintiff 10 provides evidence that Defendants continue to display Plaintiff’s copyrighted videos on 11 at least two of their websites, despite being served with this lawsuit. (Doc. 37-3, ¶¶ 39- 12 40.) 13 appropriate and awards Plaintiff the maximum statutory award per willfully infringed 14 video, totaling $8,100,000. 15 III. Attorneys’ Fees Given these circumstances, the Court finds that the statutory maximum is 16 A prevailing copyright owner may recover reasonable attorneys’ fees and costs if 17 the subject copyright was registered before the date of infringement. 17 U.S.C. §§ 412, 18 505. Plaintiff requests $22,045 in attorneys’ fees and costs, which reflects the $400 filing 19 fee and 48.1 hours of work billed at a rate of $450 per hour. (Doc. 37-4.) Plaintiff’s 20 attorney has submitted a task-based itemization of the work performed, which includes 21 drafting the complaints, a motion to conduct early discovery, a motion for leave to serve 22 Defendants by alternative means, and the instant motion for default judgment. (Id.) The 23 Court finds Plaintiff’s fee request reasonable and awards $22,045 in attorneys’ fees and 24 costs. 25 IV. Injunctive Relief 26 Finally, Plaintiff requests that the Court permanently enjoin Defendants from 27 infringing Plaintiff’s copyrighted videos. The Court is authorized to “grant . . . final 28 injunctions on such terms as it may deem reasonable to prevent or restrain infringement -4- 1 of a copyright.” 17 U.S.C. § 502. Plaintiff has demonstrated that it has been harmed by 2 Defendants’ willful infringement and that Defendants continue to unlawfully display 3 copyrighted works on at least two of their websites, despite notice of this lawsuit. The 4 Court finds that injunctive relief is appropriate under the circumstances. Accordingly, 5 IT IS ORDERED that Plaintiff’s Motion for Default Judgment, (Doc. 37), is 6 GRANTED. The Clerk shall enter judgment awarding Plaintiff $8,100,000 in statutory 7 damages and $22,045 in attorneys’ fees and costs. Defendants and their respective 8 agents, servants, and employees are permanently enjoined from infringing Plaintiff’s 9 copyrighted works. The Clerk shall terminate this case. 10 Dated this 26th day of October, 2016. 11 12 13 14 15 Douglas L. Rayes United States District Judge 16 17 18 19 20 21 22 23 24 25 26 27 28 -5-

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