Michael Kenna v. Liveauctioneers, Inc. et al

Filing 46

ORDER RE MOTION FOR DEFAULT JUDGMENT by Judge Ronald S.W. Lew: The Court GRANTS Plaintiff's Motion for Default Judgment against Defendant Black River Auction, LLC for the sole claim of copyright infringement 42 . Plaintiff has sufficiently pled willful copyright infringement and is awarded $157,350.01: $150,000 in statutory damages; $6,600 in attorneys' fees; and $750.01 in costs. (gk)

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 1 of 16 Page ID #:440

'O'

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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ORDER re: MOTION FOR
DEFAULT JUDGMENT [42]

Plaintiff,
v.
LIVEAUCTIONEERS, Inc., et
al.,

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Defendant.

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CV 21-05862-RSWL-AGRx

MICHAEL KENNA, an
individual,

Plaintiff Michael Kenna initiated this Action

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against Defendants Liveauctioneers, Inc., Live

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Auctioneers, LLC, and Black River Auction, LLC alleging

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copyright infringement and vicarious and/contributory

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copyright infringement. 1

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Currently before the Court is Plaintiff’s Motion
for Default Judgment against Defendant Black River

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Both Liveauctioneers, Inc. and Live Auctioneers, LLC were,
upon stipulation, dismissed with prejudice from this Action. ECF
No. 40.
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Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 2 of 16 Page ID #:441

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Auction, LLC on the copyright infringement claim

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(“Motion”) [42].

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pertaining to the Motions, the Court NOW FINDS AND RULES

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AS FOLLOWS: the Court GRANTS the Motion.

Having reviewed all papers submitted

I.

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A.

BACKGROUND

Factual Background

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The Complaint alleges:

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Plaintiff Michael Kenna (“Plaintiff”) is an

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individual residing in Seattle, Washington.

Compl. ¶ 4,

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ECF No. 1.

Plaintiff is an accomplished and acclaimed

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photographer known for his black and white landscapes.

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Id. ¶ 9.

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photographs (the “Subject Photographs”) that are

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registered with the United States Copyright Office under

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registration numbers: VA0002251320, VA0002246059,

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VA0002238659, and TX0004141083.

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prints retail from $2,500.00 to $15,000.00 from

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authorized galleries.

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Kenna (“Kenna Decl.”) ¶ 4, ECF No. 42-1.

Plaintiff is the sole owner of original

Id. ¶ 10.

Plaintiff’s

See generally Decl. of Michael

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Black River Auction, LLC (“Defendant”) is a New

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Jersey company who infringed on Plaintiff’s copyrighted

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works.

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infringed on Plaintiff’s Subject Photographs without his

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consent by selling fourteen of them for $861 on Live

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Auctioneers, LLC’s website.

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Default J. (“Mot.”), Ex. B, ECF No. 42-3.

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viewed Plaintiff’s Subject Photographs and then

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identically copied them to sell online.

See Compl. ¶¶ 7-8; ECF No. 12.

Defendant

Compl. ¶ 12; Pl.’s Mot. for

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Defendant

Id. ¶ 14.

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Plaintiff is entitled to disgorgement of Defendant’s

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profits attributed to the Subject Photographs.

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18.

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B.

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Id. ¶

Procedural Background
On July 20, 2021, Plaintiff filed its Complaint

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alleging a claim for copyright infringement and

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vicarious and/contributory copyright infringement. 2

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July 28, 2022, Plaintiff amended its Complaint by

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replacing the fictitious name DOE 1 with the true name

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Black River Auction, LLC.

On

ECF No. 12.

On March 4, 2022, Plaintiff served Defendant by

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leaving the Summons at Defendant’s residence with

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someone of suitable age and discretion who resided at

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the residence.

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March 25, 2022, to answer the Complaint.

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did not answer or otherwise respond to the Complaint by

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March 25, 2022.

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Clerk entered default as to Defendant on May 24, 2022,

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per Federal Rules of Civil Procedure 55(a).

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Defendants Live Auctioneers, LLC. and Liveauctioneers,

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Inc. were dismissed by stipulation.

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September 6, 2022, Plaintiff filed the instant Motion

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for Default Judgment.

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September 6, 2022, Plaintiff served Defendant with

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notice of the entry of default judgment and notice of

POF, ECF No. 28.

Defendant had until
Id.

Defendant

Pursuant to Plaintiff’s request, the

ECF No. 42.

ECF No. 38.

ECF No. 39.

On

On the same day

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Plaintiff requests the court enter default against
Defendant as to Plaintiff’s copyright infringement claim.
Mot. for Default J. (“Mot.”) 1:3-4, ECF No. 42.
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Pl.’s

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 4 of 16 Page ID #:443

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the Motion.

See Mot. iii:1-3.

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an Opposition.

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statutory damages totaling $150,000; costs incurred in

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the litigation totaling $750.01; and attorneys’ fees

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totaling $6,600.

Plaintiff seeks the following damages:

Id. at ii:19-26.
II.

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A.

Defendant did not file

DISCUSSION

Legal Standard
The granting of default judgment is within the

discretion of the district court.

Aldabe v. Aldabe, 616

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F.2d 1089, 1092 (9th Cir. 1980); see Fed. R. Civ. P. 55.

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Procedural and substantive requirements must be

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satisfied.

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Procedurally, the requirements set forth in Federal

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Rules of Civil Procedure (“FRCP” or “Rule”) 54(c) and

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55(b), and Local Rule 55-1 must be met.

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Rite Aid Corp., 992 F. Supp. 2d 998, 1006 (C.D. Cal

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2014).

See Vogel v.

Local Rule 55-1 provides:

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When an application is made to the Court for a

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default judgment, the application shall be

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accompanied by a declaration in compliance with

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F.R.Civ.P. 55(b)(1) and/or (2) and include the

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following: (a) When and against what party the

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default was entered; (b) The identification of

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the pleading to which default was entered; (c)

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Whether the defaulting party is an infant or

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incompetent person, and if so, whether that

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person is represented by a general guardian,

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committee, conservator or other representative;
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(d) That the Service Members Civil Relief Act,

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50 U.S.C. App. § 521, does not apply; and (e)

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That notice has been served on the defaulting

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party, if required by F.R.Civ.P. 55(b)(2).

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L.R. 55-1.
Courts should also consider the following factors

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in determining whether to grant a motion for default

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judgment: “(1) the possibility of prejudice to

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plaintiff, (2) the merits of plaintiff's substantive

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claims, (3) the sufficiency of the complaint, (4) the

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sum of money at stake in the action, (5) the possibility

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of a dispute concerning the material facts, (6) whether

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defendant's default was the product of excusable

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neglect, and (7) the strong public policy favoring

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decisions on the merits.”

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1470, 1471-72 (9th Cir. 1986).

Eitel v. McCool, 782 F.2d

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If the court determines that the defendant is in

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default, “‘the factual allegations of the complaint,

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other than those relating to damages, are taken as

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true.’”

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915, 917-18 (9th Cir. 1987) (quoting Geddes v. United

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Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)).

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Additionally, “[w]hen entry of judgment is sought

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against a party who has failed to plead or otherwise

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defend, a district court has an affirmative duty to look

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into its jurisdiction over both the subject matter and

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the parties.”

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1999).

Televideo Sys., Inc. v. Heidenthal, 826 F.2d

In re Tuli, 172 F.3d 707, 712 (9th Cir.

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If the Court determines that the allegations in the

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complaint are sufficient to establish liability, the

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plaintiff must provide proof of all damages sought in

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the complaint, and the Court must determine the “amount

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and character” of the relief that should be awarded.

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Vogel, 992 F. Supp. 2d at 1005-06 (citations omitted).

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“A default judgment must not differ in kind from, or

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exceed in amount, what is demanded in the pleadings.”

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Fed. R. Civ. P. 54(c).

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B.

Discussion
1.

Jurisdiction and Service of Process
a.

Subject Matter Jurisdiction

In considering whether to enter default judgment,

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the Court first determines whether it has jurisdiction

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over the subject matter and the parties.

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Tuli, 172 F.3d at 712.

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jurisdiction over this action.

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copyright infringement arises under the Copyright Act of

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1976, 17 U.S.C. § 101 et seq.

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original jurisdiction of any civil action “arising under

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any Act of Congress relating to . . . copyrights.”

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U.S.C. § 1338(a).

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question jurisdiction over this claim under 28 U.S.C. §§

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1331, 1338(a).

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b.

See In re

The Court has subject matter
Plaintiff’s claim for
District courts have
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Therefore, the Court has federal

Personal Jurisdiction

Personal jurisdiction is also satisfied.

While

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Defendant is a limited liability company in New Jersey,

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specific personal jurisdiction is demonstrated, as
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Plaintiff alleges that the copyright infringement giving

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rise to this action took place in this forum.

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Compl. ¶ 3.

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c.

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See

Service of Process Is Proper

Service of process is met because Plaintiff served

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Defendant with the Summons and Complaint on March 4,

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2022, as evidenced by the Proof of Service.

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Plaintiff served the Summons and Complaint on

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Defendant’s agent’s residence, or usual place of abode,

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with the agent’s sister in compliance with Federal Rule

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of Civil Procedure 4.

ECF No. 28.

Id.; See ECF No. 38.

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2.

Procedural Requirements

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Plaintiff has met the procedural requirements for

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default judgment pursuant to Federal Rules of Civil

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Procedure 55 and Central District Local Rule 55-1.

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Under Rule 55(a), the Clerk properly entered default

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against Defendant on May 24, 2022 [38].

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pursuant to Rule 55(b) for entry of default judgment on

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September 6, 2022 [42].

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Plaintiff moved

Plaintiff has also established the Local Rule 55-1

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requirements.

Per the Motion, the Clerk entered default

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against Defendant on May 24, 2022, as to Defendant;

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Defendant is neither a minor, nor an incompetent person

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nor in the military service or otherwise exempted under

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the Soldier’s and Sailor’s Civil Relief Act of 1940, the

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predecessor to the Servicemembers Civil Relief Act; and

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Defendant was served with the Motion for Default

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Judgment on September 6, 2022.
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ECF No. 43.

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 8 of 16 Page ID #:447

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3.

Eitel Factors

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Plaintiff has sufficiently set forth the seven

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Eitel factors: “(1) the possibility of prejudice to the

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plaintiff; (2) the merits of plaintiff’s substantive

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claims; (3) the sufficiency of the complaint; (4) the

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sum of money at stake in the action; (5) the possibility

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of a dispute concerning the material facts; (6) whether

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the default was due to excusable neglect; and (7) the

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strong public policy underlying the Federal Rules of

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Civil Procedure favoring decisions on the merits.”

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Eitel, 782 F.2d at 1471-72.

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a.

Risk of Prejudice to Plaintiff

“The first Eitel factor considers whether a

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plaintiff will suffer prejudice if a default judgment is

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not entered.”

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Vogel, 992 F. Supp. 2d at 1007.

This factor weighs in favor of granting default

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judgment.

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extension to submit an opposition.

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has failed to participate in the litigation and, without

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default judgment, Plaintiff would be unable to halt

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Defendant’s infringement or recoup damages for harm

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suffered.

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997 (N.D. Cal. 2010).

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b.

Defendant neither filed nor requested an
As such, Defendant

IO Grp., Inc. v. Jordon, 708 F. Supp. 2d 989,
Sufficiency of the Complaint and Likelihood
of Success on the Merits

The second and third Eitel factors consider the

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merits of the plaintiff’s substantive claims and the

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sufficiency of the complaint.
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“Under an [Eitel]

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 9 of 16 Page ID #:448

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analysis, [these factors] are often analyzed together.”

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Dr. JKL Ltd. V. HPC IT Educ. Ctr., 749 F. Supp. 2d 1038,

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1048 (N.D. Cal. 2010).

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meritorious claim for willful copyright infringement.

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Plaintiff has asserted a

To plead a viable copyright infringement claim

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pursuant to 17 U.S.C. § 501, Plaintiff must establish

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“(1) ownership of a valid copyright, and (2) copying of

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the constituent elements of the work that are original.”

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Feist Publ’ns., Inc. v. Rural Tel. Serv. Co., 499 U.S.

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340, 361 (1991).

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second prong is satisfied by showing that “the infringer

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had access to the work and that the two works are

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substantially similar.”

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1353, 1356 (9th Cir. 1990).

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evidence of access, a ‘striking similarity’ between the

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works may give rise to a permissible inference of

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copying.”

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Cir. 1987).

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Absent direct evidence of copying, the

Shaw v. Lindheim, 919 F.2d
In some cases, “absent

Baxter v. MCA, Inc., 812 F.2d 421, 423 (9th

Plaintiff owns four valid copyrights for the

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Subject Photographs with the following registration

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numbers: VA0002251320, VA0002246059, VA0002238659, and

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TX0004141083.

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is satisfied.

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Compl. ¶10.

Therefore, the first prong

In addition, Defendant likely copied the Subject

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Photographs.

Plaintiff is an accomplished and

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critically acclaimed photographer.

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Defendant marketed the Subject Photographs alongside

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Plaintiff’s name on the website.
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Id. ¶ 9.
See, Ex. B.

Moreover,

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Additionally, Plaintiff alleges that Defendants

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willfully copied, reproduced, displayed, and distributed

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the Subject Photographs without Plaintiff’s consent.

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Id. ¶ 12.

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identical copies of Plaintiff’s original work.

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A, B.

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Subject photographs given that the works on the website

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are strikingly similar to Plaintiff’s photographs.

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Plaintiff has thus adequately pled that Defendants

The Subject Photographs appear to be
See Exs.

Therefore, Defendant clearly had access to the

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infringed upon his copyright and entry of default is

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favored.

Dr. JKL Ltd., 749 F. Supp. 2d at 1049.
c.

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Sum of Money at Stake in the Action

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“Under the [fourth] Eitel factor, the court must

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consider the amount of money at stake in relation to the

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seriousness of Defendant’s conduct.”

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Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1176 (C.D. Cal.

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2002).

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calculations, and other damages documentation to

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determine whether the sum of money at stake is

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appropriate.

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04287-LHK, 2012 WL 1156402, at *3 (N.D. Cal. Apr. 6,

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2012).

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PepsiCo, Inc. v.

The Court will review declarations,

HICA Educ. Loan Corp. v. Warne, No. 11-CV-

Here, Plaintiff requests $150,000 in statutory

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damages pursuant to 17 U.S.C. § 504(c); $6,600 in

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attorneys’ fees; and $750.01 in recoverable costs.

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1:10-13.

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The Copyright Act permits a copyright owner to
recover “statutory damages for all infringements
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Mot.

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 11 of 16 Page ID #:450

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involved in the action...in a sum of not less than $750

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or more than $30,000 as the court considers just.”

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U.S.C. § 504(c)(1).

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the court finds . . . that infringement was committed

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willfully, the court in its discretion may increase the

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award of statutory damages to a sum of not more than

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$150,000” for each infringement.

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However, “[i]n a case where . . .

17 U.S.C. § 504(c)(2).

Plaintiff seeks $150,000 in statutory damages for
the two hundred infringed photographs.

The Complaint

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sufficiently pleads that Defendant willfully infringed

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on the Subject Photographs because Defendant “willfully

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copied, reproduced, displayed, and distributed the

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Subject Photographs.”

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recognizes that Plaintiff did not have the opportunity

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to conduct full discovery regarding damages due to

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Defendant’s default.

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the requested $150,000 does not outpace the

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egregiousness and willfulness of Defendant’s conduct,

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considering that Defendant infringed on two hundred of

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Plaintiff’s photographs and marketed the Subject

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Photographs on its website alongside Plaintiff’s name

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and the photographs’ original titles.

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this factor weighs towards granting this Motion.

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d.

The Court

As discussed below in this Order,

See Ex. B.

Thus,

The Possibility of a Dispute Concerning the
Material Facts

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Compl. ¶ 12.

The fifth Eitel factor examines the likelihood of a

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dispute between the parties regarding the material facts

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in the case.

A defendant is “deemed to have admitted
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all well-pleaded factual allegations” in the complaint

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upon entry of default.

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F.3d 847, 851 (9th Cir. 2007).

DirecTV, Inc. v. Hoa Huynh, 503

This factor weighs towards granting default

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judgment.

There is a low possibility of dispute as the

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Complaint aptly demonstrates that the works are

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substantially similar and that the Subject Photos were

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distributed and sold by the Defendant.

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Compl.

See generally

Additionally, due to Defendant’s lack of

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response after default was entered against him, he has

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failed to dispute any material facts.
e.

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The Possibility of Excusable Neglect

Excusable neglect considers factors such as

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“prejudice . . ., the length of the delay and its

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potential impact on judicial proceedings, the reason for

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the delay, including whether it was within the

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reasonable control of the movant, and whether the movant

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acted in good faith.”

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Sch. Dist., No. CV 09-1978 ODW (PJWx), 2010 WL 1708839,

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at *1 (C.D. Cal. Apr. 20, 2010) (internal quotation

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marks and citations omitted).

J.L. v. Moreno Valley Unified

Excusable neglect is negligible, as Defendant

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received the Summons, Complaint, and instant Motion.

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Defendant failed to either oppose the Motion or request

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an extension to file an opposition.

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weighs in favor of default.

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///

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///
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Thus, this factor

Case 2:21-cv-05862-RSWL-AGR Document 46 Filed 11/15/22 Page 13 of 16 Page ID #:452

f.

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Merits

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Public Policy Favoring Decisions on the

The Ninth Circuit has stated that “[c]ases should

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be decided upon their merits whenever reasonably

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possible.”

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preference, standing alone, is not dispositive.”

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PepsiCo, 238 F. Supp. 2d at 1177.

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infringement claim cannot be adjudicated, as Defendant

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failed to Answer or appear in the action.

Eitel, 782 F.2d at 1472.

However, “this

The copyright
While this

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factor may weigh against entering default judgment, the

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Court nonetheless will grant the Motion in light of the

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remaining factors.

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In total, the Eitel factors weigh towards granting
default judgment.

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4.

Character and Amount of Plaintiff’s Recovery

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Plaintiff requests $150,000 total statutory

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damages, attorneys’ fees totaling $6,600, and $750.01 in

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recovery costs.

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request in turn.

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a.

The Court takes up the validity of each

Statutory Damages

17 U.S.C. § 504 provides, in relevant part: “an

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infringer of copyright is liable for either – (1) the

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copyright owner’s actual damages and any additional

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profits of the infringer . . . or (2) statutory

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damages.”

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elect . . . to recover . . . an award of statutory

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damages . . . in a sum of not less than $750 or more

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than $30,000 as the court considers just.”

17 U.S.C. § 504(a).

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A “copyright owner may

17 U.S.C. §

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504(c)(1).

“In a case where the copyright owner

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sustains the burden of proving, and the court finds,

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that infringement was committed willfully, the court in

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its discretion may increase the award of statutory

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damages to a sum of not more than $150,000.”

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§ 504(c)(2).

17 U.S.C.

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In exercising its discretion, “the court can

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consider such factors as: “(1) the expenses saved and

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the profits reaped; (2) the revenues lost by the

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plaintiff; (3) the value of the copyright; (4) the

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deterrent effect on others besides the defendant; (5)

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whether the defendant’s conduct was innocent or willful;

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(6) whether a defendant has cooperated in providing

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particular records from which to assess the value of the

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infringing material produced; and (7) the potential for

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discouraging the defendant.”

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Asia Ltd. V. Uth, CIV S-06-1054 FCD DAD, 2007 WL 36283,

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at *3 (E.D. Cal. Jan. 4, 2007).

Columbia Pics. Film Prod.

Plaintiff’s proposed statutory damages of $150,000

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is a reasonable request.

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would have cost Defendant $2500 per photograph to obtain

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Plaintiff’s work.

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at least fourteen of the Subject Photographs, this

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accounts for $35,000 in lost revenue.

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5.

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Plaintiff alleged that it

Mot. 11:1-3.

Because Defendant sold
See id. at 11:3-

“To prove ‘willfulness’ under the Copyright Act,

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the plaintiff must show (1) that the defendant was

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actually aware of the infringing activity, or (2) that
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the defendant's actions were the result of ‘reckless

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disregard’ for, or ‘willful blindness’ to, the copyright

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holder's rights.”

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Akanoc Solutions, Inc., 658 F.3d 936, 944 (9th Cir.

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2011).

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Plaintiff’s name and the works’ titles alongside the

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Subject Photographs.

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evidence that Defendant at least should have known that

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the photos belonged to Plaintiff Michael Kenna.

Louis Vuitton Malletier, S.A. v.

Here, Defendant’s website clearly displayed
See Compl., Ex. B.

The images

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Plaintiff has thus sufficiently pled willful

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infringement of Plaintiff’s copyright.

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degree of Defendant’s willfulness, $150,000 is

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reasonable, particularly because Defendant infringed on

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two hundred of Plaintiff’s photographs and Plaintiff

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lost at least $35,000 in revenue for the fourteen

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photographs Defendant sold.

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17 U.S.C. § 504(c)(2), the Court does not disturb

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Plaintiff’s request for $150,000 statutory damages.

Considering the

Mot. 11:1-5.

Pursuant to

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5.

Attorneys’ Fees and Costs

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The court, in its discretion, may award costs and

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reasonable attorneys’ fees to the prevailing party,

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pursuant to section 505 of the Copyright Act.

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§ 505.

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schedule of attorneys’ fees applicable to a default

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judgment if an applicable statute provides for the

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recovery of attorneys’ fees; as previously mentioned, 17

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U.S.C. § 505 of the Copyright Act allows for attorneys’

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fees.

17 U.S.C.

Central District Local Rule 55-3 provides a

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For judgments over $100,000, like the $150,000 the

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Court has awarded in statutory damages, the total is

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“$5,600 plus 2% of the amount over $100,000;” that is,

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$6,600.

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17 U.S.C. § 505, the Court grants recovery costs of

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$750.01.

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C.D. Cal. R. 55-3.

Additionally, pursuant to

Id.
III.

CONCLUSION

Based on the foregoing, the Court GRANTS
Plaintiff’s Motion for Default Judgment against

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Defendant for the sole claim of copyright infringement.

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In sum, Plaintiff has sufficiently pled willful

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copyright infringement and is awarded $157,350.01:

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$150,000 in statutory damages under 17 U.S.C. § 504(c);

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$6,600 in attorneys’ fees pursuant to Local Rule 55-3;

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and $750.01 in costs pursuant to 17 U.S.C. § 505.

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IT IS SO ORDERED.

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DATED: November 15, 2022

/s/Ronald S.W. Lew _____
HONORABLE RONALD S.W. LEW
Senior U.S. District Judge

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23
24
25
26
27
28
16