reFX AUDIO SOFTWARE INC. v. Does 1-123

Filing 147

ORDER that Magistrate Judge Hegartys Recommendation ECF No. 114 is AFFIRMED and ADOPTED. it is FURTHER ORDERED reFX Audio Software, Inc.s Amended Motion And Memorandum For Default ECF No. 110 is GRANTED IN PART and DENIED IN PART, by Judge Wiley Y. Daniel on 5/20/2014.(evana, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 12-cv-03146-WYD-MEH
reFX AUDIO SOFTWARE, INC.,
Plaintiff,
v.
DARRYL JOHONSON II;
ELEANOR TURNER;
KEITH ESTES; and,
NICOLE FIELDS,
Defendants.
______________________________________________________________________
ORDER AFFIRMING AND ADOPTING RECOMMENDATION OF UNITED STATES
MAGISTRATE JUDGE
______________________________________________________________________
THIS MATTER is before the Court on plaintiff, reFX Audio Software, Inc.’s
Amended Motion And Memorandum For Default Judgment Against Defendants Darryl
Johnson II, Eleanor Turner, And Nicole Fields [ECF No. 110] and Magistrate Judge
Hegarty’s Recommendation [ECF No. 114]. I referred reFX Audio Software, Inc.’s
motion to Magistrate Judge Hegarty on November 25, 2013. ECF No. 113. On
December 9, 2013, Magistrate Judge Hegarty issued his Recommendation and stated
that reFX Audio Software, Inc.’s motion should be granted in part and denied in part.
Magistrate Judge Hegarty’s Recommendation is incorporated herein by reference. See
28 U.S.C. § 636(b)(1), Rule 72(b) of the FEDERAL RULES of CIVIL PROCEDURE, and
D.C.COLO.LCivR. 72.1.

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Magistrate Judge Hegarty advised the parties that they had 14 days after service
of a copy of his Recommendation to file objections to the Recommendation. ECF No.
114, p. 1, n.1. As of Tuesday, May 20, 2014, no party has filed objections. Because
the parties did not file objections, I am vested with discretion to review the
Recommendation “under any standard [I] deem[] appropriate.” Summers v. Utah, 927
F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985)
(stating that “[i]t does not appear that Congress intended to require district court review
of a magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings”). Nonetheless, though not required to do
so, I review the Recommendation to “satisfy [my]self that there is no clear error on the
face of the record.”1 Advisory Committee Notes to FED. R. CIV. P. 72(b).
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. I find that Magistrate Judge Hegarty’s Recommendation is
thorough, well-reasoned, and sound. Further, I agree that reFX Audio Software, Inc.’s
Amended Motion And Memorandum For Default Judgment Against Defendants Darryl
Johnson II, Eleanor Turner, And Nicole Fields [ECF No. 110] should be granted in part
and denied in part.
CONCLUSION
After careful consideration of the matter before this Court, it is
ORDERED that Magistrate Judge Hegarty’s Recommendation [ECF No. 114] is
AFFIRMED and ADOPTED. As such, it is

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Note, this standard of review is something less than a “clearly erroneous or contrary to law” standard of
review, FED. R. CIV. P. 72(a), which in turn is less than a de novo review, FED. R. CIV. P. 72(b).

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FURTHER ORDERED reFX Audio Software, Inc.’s Amended Motion And
Memorandum For Default Judgment Against Defendants Darryl Johnson II, Eleanor
Turner, And Nicole Fields [ECF No. 110] is GRANTED IN PART and DENIED IN PART.
The motion is GRANTED in that:
(1) judgment is ENTERED IN FAVOR of reFX Audio Software, Inc.
AGAINST defendants, Darryl Johnson II, Eleanor Turner, and Nicole
Fields for direct copyright infringement of reFX Audio Software, Inc.’s
copyrighted software, as set forth in Counts I and II of the First Amended
Complaint [ECF No. 55];
(2) defendant, Darryl Johnson II, SHALL PAY reFX Audio Software, Inc.
$7,500.00 in statutory damages, as authorized by 17 U.S.C. § 504(c)(1),
and $604.44 in attorney fees and costs as authorized by 17 U.S.C. § 505;
(3) defendant, Eleanor Turner, SHALL PAY reFX Audio Software, Inc.
$13,250.00 in statutory damages, as authorized by 17 U.S.C. § 504(c)(1),
and $604.44 in attorney fees and costs as authorized by 17 U.S.C. § 505;
(4) defendant, Nicole Fields, SHALL PAY reFX Audio Software, Inc.
$2,750.00 in statutory damages, as authorized by 17 U.S.C. § 504(c)(1),
and $604.44 in attorney fees and costs as authorized by 17 U.S.C. § 505;
and,
(5) defendants, Darryl Johnson II, Eleanor Turner, and Nicole Fields
SHALL PERMANENTLY DESTROY all digital media files relating to, and
copies of, reFX Audio Software, Inc.’s copyrighted software made or used
by them in violation of reFX Audio Software, Inc.’s exclusive rights, as well

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as all masters in their possession, custody, or control from which such
copies may be reproduced.
The motion is DENIED to the extent that reFX Audio Software, Inc. requests this Court
to permanently enjoin defendants, Darryl Johnson II, Eleanor Turner, and Nicole Fields
from continuing to infringe on reFX Audio Software, Inc.’s copyrighted software.
Dated: May 20, 2014.
BY THE COURT:
/s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior U. S. District Judge

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