Disney Enterprises, Inc. et al v. Tran et al

Filing 55

ORDER GRANTING MOTION FOR ENTRY OF DEFAULT JUDGMENT by Judge Jon S. Tigar; granting 42 Motion for Default Judgment. (wsn, COURT STAFF) (Filed on 11/7/2016)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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DISNEY ENTERPRISES, INC., et al.,
Plaintiffs,

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VUONG TRAN, et al.,

Re: ECF No. 42

Defendants.

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United States District Court
Northern District of California

ORDER GRANTING MOTION FOR
ENTRY OF DEFAULT JUDGMENT

v.

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Case No. 12-cv-05030-JST

Before the Court is Plaintiffs Disney Enterprises, Inc., DC Comics, and Sanrio, Inc.’s

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Motion for Entry of Default Judgment against Defendant Vuong Tran a/k/a Vuong Nguyen a/k/a

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Ricky Tran a/k/a Ricky Vuong. The Court grants the motion.

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I.

BACKGROUND

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This is the second motion for entry of default judgment in this copyright infringement case.

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Plaintiffs Disney Enterprises, Inc. (“DEI”), DC Comics, and Sanrio, Inc. (collectively “Plaintiffs”)

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are entertainment companies that own the copyrights to the twenty-five fanciful characters at

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issue. ECF No. 1 at 2-11. The characters include Minnie Mouse, Wonder Woman, and Hello

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Kitty. ECF No. 42 at 7-12. Defendant Vuong Tran runs a business renting inflatable play areas,

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called “jumpers,” “moonwalks,” or “bounce houses,” for children’s birthdays and other festivities.

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ECF No. 44-1 at 3.

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In 2012, Plaintiffs filed a complaint against Defendants Vuong Tran and Joey Nguyen,

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both of whom did business as www.norcaljumper.com; Amazon.com seller “vttranz11”; and eBay

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sellers “jumpon88,” “vttranz12,” and “julienguyen99.” ECF No. 1-1 at 11-12. Seven months

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later, on May 1, 2013, this Court granted the Plaintiffs’ first motion for entry of default judgment

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against Defendant Nguyen. Disney Enterprises Inc. v. Tran, No. 12-cv-5030-SC, 2013 WL

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1832563, at *5 (N.D. Cal. May 1, 2013). Plaintiffs’ limited their first motion to Defendant

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Nguyen because Defendant Tran had filed for bankruptcy shortly after Plaintiffs commenced the

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infringement action. See ECF No. 13 (Plaintiffs’ notice of Defendant Tran’s bankruptcy filing);

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Tran, 2013 WL 1832563, at *1 n.2. The Court awarded Plaintiffs $10,000 per infringement

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against Defendant Nguyen, for a total of $250,000. See Tran, 2013 WL 1832563, at *4. It also

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awarded interest under 28 U.S.C. § 1961(a), and issued an injunction against further violations of

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the twenty-five copyrighted designs. Id. at *4-5.
On November 17, 2015, Plaintiffs moved to reopen the case. ECF No. 30. Then, on July

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13, 2016, Plaintiffs moved the Court for entry of default judgment against Defendant Tran for

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copyright statutory damages totaling $625,000, post-judgment interest calculated pursuant to
28 U.S.C. § 1961(a), and a permanent injunction prohibiting Defendant from further infringement

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United States District Court
Northern District of California

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of Plaintiffs’ copyrights and trademarks. ECF No. 42 at 1-2.

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The Court issued an order requesting supplemental briefing on two items: (1) “the

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licensing fees that Plaintiffs would have typically charged for the underlying copyrighted works

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had Defendant properly sought to purchase a license”; and (2) “the lowest, highest, and median

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statutory damages award per violation received by Plaintiffs in the default judgment context for

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similar copyright infringement violations.” ECF No. 50. Plaintiffs responded. ECF Nos. 51-52.

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II.

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LEGAL STANDARD
After entry of default, the Court may enter a default judgment. Fed. R. Civ. P. 55(b)(2).

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Its decision whether to do so, while “discretionary,” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th

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Cir. 1980), is guided by several factors. As a preliminary matter, the Court must “assess the

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adequacy of the service of process on the party against whom default judgment is requested.” Bd.

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of Trs. of N. Cal. Sheet Metal Workers v. Peters, No. 00-cv-0395-VRW, 2000 U.S. Dist. LEXIS

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19065, at *2 (N.D. Cal. Jan. 2, 2001). If the Court determines that service was sufficient, it should

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consider whether the following factors support the entry of default judgment:

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(1) the possibility of prejudice to the plaintiff;

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

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(3) the sufficiency of the complaint;

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(4) the sum of money at stake in the action;
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(5) the possibility of a dispute concerning material facts;

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(6) whether the default was due to excusable neglect; and

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(7) the policy of the Federal Rules favoring decisions on the merits.

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Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
“The general rule of law is that upon default the factual allegations of the complaint,

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except those relating to the amount of damages, will be taken as true.” Geddes v. United Fin.

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Grp., 559 F.2d 557, 560 (9th Cir. 1977). However, “necessary facts not contained in the

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pleadings, and claims which are legally insufficient, are not established by default.” Cripps v. Life

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Ins. Co., 980 F.2d 1261, 1267 (9th Cir. 1992).

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III.

For reasons of judicial economy, the Court adopts the analysis from its earlier order against

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United States District Court
Northern District of California

ANALYSIS

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Defendant Nguyen and applies it to the present motion against Defendant Tran.1 See Tran, 2013

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WL 1832563. Therefore, the Court now discusses only the new issues raised against Defendant

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Tran, and ultimately awards statutory damages of $10,000 per infringement for a total of

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$250,000, plus post-judgment interest pursuant to 28 U.S.C. § 1961(a), and issues a permanent

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injunction against further violations of Plaintiffs’ copyrights.

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A.

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Plaintiffs request a statutory damages award of $25,000 per infringement against

Damages

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Defendant Tran, which is the same award per infringement they initially sought against Defendant

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Nguyen. See ECF No. 51 at 6; ECF No. 52 at 5. The request is substantially larger, however,

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than the $10,000 per infringement award the Plaintiffs actually received against Defendant

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Nguyen. They justify the request on the ground that “[t]he conduct at issue by Defendant Tran is

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far more egregious and intentional than that at issue for Defendant Nguyen.” See ECF No. 51 at 3

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n.1; ECF No. 52 at 3 n.1. Plaintiffs cite the Declaration of Annie S. Wang as “evidence of

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In that order, the Court found that the procedural prerequisites for entry of default judgment had
been met, and the Eitel factors favored entry of default judgment. Id. at 4-8. Then it found that an
award of $10,000 statutory damages per infringement was appropriate and sufficient for purposes
of deterrence. Id. at 9. Finally, it awarded post-judgment interest pursuant to 28 U.S.C. § 1961(a)
and a permanent injunction to restrain further infringements. Id. at 9-10.
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Defendant Tran’s continued infringement years after the Complaint in this action was filed and

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numerous failed bankruptcy filings made in an attempt to delay and avoid responsibility for his

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willful and continued infringing sales.” ECF No. 51 at 3 n.1; ECF No. 52 at 3 n.1.

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Plaintiffs’ argument for $25,000 per infringement is unpersuasive for two reasons. First,
Plaintiffs provide no conclusive evidence that Defendant Tran’s bankruptcy filings were

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illegitimate or that he made such filings specifically “in order to delay or avoid responsibility for

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his infringing activities.” See ECF No. 43 at 2 (Wang Decl. ¶ 4); ECF No. 43-2 at 29 (PACER

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search results listing Defendant Tran’s five dismissed bankruptcy petitions). Second, “in the

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default judgment context for similar copyright infringement violations,” ECF No. 50, Plaintiffs

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could find no precedent for an award in excess of $10,000 per infringement. See Fossier Decl. ¶

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United States District Court
Northern District of California

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2, ECF No. 52 at 7 (DEI); Diaz Decl. ¶ 3, ECF No. 51 at 7 (DC Comics); Suimori Decl. ¶ 3, ECF

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No. 51 at 8 (Sanrio); Coombs Decl. ¶ 2, ECF. No. 51 at 9 (all Plaintiffs). Accordingly, “[p]er the

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Court’s ‘wide discretion in determining the amount of the statutory damages to be awarded,

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constrained only by the specified maxima and minima,’” ECF No. 26 at 9 (quoting Harris v. Emus

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Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984)), the Court again finds that a statutory

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damages award of $10,000 per infringement is appropriate and sufficient to accomplish the

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statutory policy of deterrence and punishment. See ECF No. 51 at 4-5; ECF No. 52 at 4-5.

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B.

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The Court finds that Plaintiffs are entitled to post-judgment interest pursuant to

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Interest

28 U.S.C. § 1961(a).

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C.

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For the reasons expressed in the Court’s previous order, Tran, 2013 WL 1832563, at *4-5,

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the Court enters a permanent injunction. Defendant Tran and his agents, servants, employees and

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all persons in active concert and participation with him who receive actual notice of the injunction

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are hereby restrained and enjoined from importing, advertising, displaying, promoting, marketing,

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distributing, providing, offering for sale and selling of products that picture, reproduce, copy, or

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use the likenesses of or bear a substantial similarity to the designs registered in the following

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copyright registrations:

Injunctive Relief

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1. Mickey-1 (VA 58-937);
2. Minnie-1 (VA 58-938);
3. Donald Duck (Gp 80184);
4. Daisy-1 (VA 58-933);
5. Pluto (Gp 80-192) / (RE 826-536);
6. Chip (R 567 615);
7. Dale (R 567 614);
8. Walt Disney’s Peter Pan Coloring Book #21865 (Tinker Bell) (RE 66-285);
9. Toy Story - Buzz Lightyear (VAu 337 566);
10. Toy Story - Woody (VAu 337 565);
11. Toy Story (Mr. Potato Head) (PA 765-713);
12. Toy Story - Rex (VAu 337 568);
13. Pirates of the Caribbean: The Curse of the Black Pearl (PA 1-138-412);
14. High School Musical - Fall/Winter 2007 Style Guide (VA 1-405-075);
15. Ariel 9-9-87 Ruff (VAu 123-355);
16. Flounder (VAu 123 349);
17. Triton (VAu 123 350);
18. Ruff Sebastian 9-4-87 (VAu 123 354);
19. Hanna Montana Branding Guide (VA 1-403-647);
20. DC Comics Anti-Piracy Guide (Txu 1-080-661);
21. Superman Style Guide (TX 3-221-758);
22. The Hello Kitty registration (VA 130-420);
23. KeroKeroKeropi (VA 636-579);
24. Sanrio 2005 Character Guide (VAu 684-322);
25. Sanrio 2010 Character Guide (VAu 1-078-385).

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United States District Court
Northern District of California

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CONCLUSION
The Court grants Plaintiffs’ Motion for Entry of Default Judgment, grants a permanent
injunction, and awards statutory damages of $250,000 for violations of the Copyright Act, as well
as interest.
IT IS SO ORDERED.
Dated: November 7, 2016

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______________________________________
JON S. TIGAR
United States District Judge

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