Purzel Video GmbH v. Does 65, 66, 67, 70, 72, 73, 75, 78, 83, 84, 89, 90, 91, 100, 109, 110, 118, 122, 126, 131, 132, 134, 141, 142 and 145

Filing 70

ORDER Affirming and Adopting Recommendation of United States Magistrate Judge. ORDERED that the Recommendation of United States Magistrate Judge 65 is AFFIRMED and ADOPTED. ORDERED that Plaintiffs Amended Motion and Memorandum for Default Judgment Against Defendant Jesus Sanchez (ECF No. 62) is GRANTED IN PART AND DENIED IN PART by Judge Wiley Y. Daniel on 01/06/14.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Wiley Y. Daniel
Civil Action No. 13-cv-01172-WYD-MEH
PURZEL VIDEO GmbH,
Plaintiff,
v.
DONALD BIBY,
BILL YATES,
and JESUS SANCHEZ,
Defendants.

ORDER AFFIRMING AND ADOPTING RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE

THIS MATTER is before the Court in connection with Plaintiff’s Amended Motion
and Memorandum for Entry of Default Judgment Against Defendant Jesus Sanchez
(“Sanchez”) filed November 13, 2013. This motion was referred to Magistrate Judge
Hegarty for a recommendation. A Recommendation was issued on December 10,
2013, and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R.
Civ. P. 72(b).
Magistrate Judge Hegarty recommends therein that Plaintiff’s Amended Motion
and Memorandum for Entry of Default Judgment against Defendant Jesus Sanchez be
granted in part and denied in part. (See Recommendation at 1, 16.) Specifically, he
first notes that Defendant Sanchez did not answer or respond to the Amended
Complaint before the deadline, and that an Entry of Default was docketed by the Clerk

of the Court on October 15, 2013. (Id. at 8.) He further notes that Sanchez did not
respond to the motion for default judgment. (Id.)
It is then recommended that default judgment be entered in Plaintiff’s favor
against Sanchez pursuant to Fed. R. Civ. P. 55(b)(2). (Recommendation at 9.) In
support of this, Magistrate Judge Hegarty finds that the Court has jurisdiction and that
“Plaintiff has established a violation of its copyrighted work by Defendant Sanchez, in
that a computer at Sanchez’s residence participated in an illegal download of its motion
picture.” (Id. at 10.) Magistrate Judge Hegarty then finds that “Plaintiff has established
that Sanchez copied Plaintiff’s copyright protected work” and “recommends that the
District Court find Sanchez has committed a direct infringement of the Copyright Act
against Plaintiff as set forth in Count I of the Amended Complaint. (Id. at 13.) He
recommends, however, that the Court find that “Plaintiff has failed to demonstrate
Sanchez’s liability as to contributory infringement as set forth in Count II of the
Amended Complaint. (Id.) As to damages, it is recommended that Sanchez be ordered
to pay Plaintiff $2,250.00 in statutory damages as authorized by 17 U.S.C. § 504(c)(1),
and $676.66 for attorney’s fees and costs as authorized by 17 U.S.C. § 505. (Id. at 1315.)
Finally, Magistrate Judge Hegarty recommends that the Court grant in part and
deny in part Plaintiff’s request for injunctive relief. (Recommendation at 15-16.) Thus, it
is recommended that Plaintiff’s request for an order directing Sanchez to “destroy all
copies of Plaintiff’s Motion Picture” from “any computer hard drive or server without
Plaintiff’s authorization” that are within Sanchez’s “possession, custody, or control” be
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granted as reasonable. (Id. at 15.) On the other hand, Magistrate Judge Hegarty
recommends that the Court deny Plaintiff’s request for an order enjoining Sanchez from
directly or indirectly infringing on Plaintiff’s copyrighted work, as he finds that Plaintiff
failed to proffer evidence sufficient to justify this request. (Id. at 15-16.)
Magistrate Judge Hegarty advised the parties that written objections were due
within fourteen (14) days after service of the Recommendation. (Recommendation at 1
n. 1.) Despite this advisement, no objections were filed to the Recommendation. No
objections having been filed, 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 See Fed. R. Civ. P. 72(b) Advisory Committee Notes.
Having reviewed the Recommendation, I am satisfied that there is no clear error
on the face of the record. The Recommendation is well reasoned and persuasive. I
agree that Plaintiff should be granted default judgment against Defendant Sanchez for
direct infringement of the Copyright Act. I further agree with the recommendation on
damages—that Sanchez should pay Plaintiff $2,250.00 in statutory damages and

1

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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$676.66 for attorney’s fees and costs. Finally, I agree that Plaintiff’s request for
injunctive relief should be granted in part and denied in part as set forth in the
Recommendation. Accordingly, it is
ORDERED that the Recommendation of United States Magistrate Judge dated
December 10, 2013 (ECF No. 65) is AFFIRMED and ADOPTED. In accordance
therewith, it is
ORDERED that Plaintiff’s Amended Motion and Memorandum for Default
Judgment Against Defendant Jesus Sanchez (ECF No. 62) is GRANTED IN PART
AND DENIED IN PART; namely, it is granted as to the request for a default judgment
and for damages, and granted in part and denied in part as to the request for injunctive
relief. Therefore, it is
ORDERED that the Clerk of Court shall enter judgment in Plaintiff’s favor against
Defendant Jesus Sanchez for direct copyright infringement of Plaintiff’s copyrighted
work as set forth in Count I of the Amended Complaint. It is
FURTHER ORDERED that Defendant Sanchez shall pay Plaintiff the sum of
$2,250.00 in statutory damages and $676.66 for attorney’s fees and costs. It is
FURTHER ORDERED that Defendant Sanchez shall permanently destroy all the
digital media files relating to, and copies of, Plaintiff’s copyrighted work made or used by
him in violation of Plaintiff’s exclusive rights, as well as all master copies in his
possession, custody or control from which such copies may be reproduced. Finally, it is

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ORDERED that Plaintiff’s request for “entry of preliminary and permanent
injunctions providing that [Sanchez] shall be enjoined from directly or indirectly infringing
Plaintiff’s rights in the copyrighted Motion Picture” is denied.
Dated: January 6, 2014
BY THE COURT:

s/ Wiley Y. Daniel
Wiley Y. Daniel
Senior United States District Judge

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