MALIBU MEDIA, LLC v. DOE

Filing 264

ORDER REGARDING DAMAGES: Finally, the Court notes that the Plaintiff asks for injunctive relief in its complaint. Within 14 days of the date of this Entry, the Defendants shall file a notice stating whether they object to the entry of t he injunctive relief sought and, if they do, explaining why. If such a notice is filed, the Plaintiff shall file a response within 14 days of the date of the notice. The Court will then resolve any dispute and enter final judgment ***SEE ORDER FOR ADDITIONAL INFORMATION***. Signed by Judge William T. Lawrence on 10/29/2015. Copy sent via US Mail.(DW)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
MALIBU MEDIA, LLC,
Plaintiff,
vs.
KELLEY TASHIRO, et al.,
Defendants.

)
)
)
)
) Cause No. 1:13-cv-205-WTL-MJD
)
)
)
)

ORDER REGARDING DAMAGES
The Court has adopted the Magistrate Judge’s Report and Recommendation that default
judgment be entered against Defendants Kelley Tashiro and N. Charles Tashiro and instructed
the parties to inform that Court how they believe the issue of damages should be resolved. The
parties have now done so. The Court, being duly advised, rules as follows.
By default, the Plaintiff has established that the Defendants are liable to it for copyright
infringement of 28 of the Plaintiff’s works. The only issue remaining before the Court is the
amount of damages to which the Plaintiff is entitled. In response to the Court’s inquiry, the
Plaintiff made the following proposal:
Plaintiff now asks this Court to award statutory damages in the amount of
$630,000—$22,500 per work—$21,000 of which Kelley should share joint and
several liability. As explained below, Plaintiff waives its right to a jury trial on
damages conditioned upon an award of not less than $252,000 in statutory
damages. If Plaintiff’s statutory award is not less than $500,000, Plaintiff will
further waive its right to attorneys’ fees. Plaintiff further asks this Court to
include specific language in the final default judgment to ensure that Defendants
are not able to evade liability by discharging their debt in bankruptcy.
Dkt. No. 249 at 1-2. The reason the Plaintiff proposes that Kelley be liable for only $21,000 of
the total damages award is that, in the Plaintiff’s words, “[e]arly in the proceedings, Plaintiff

stipulated to only seek minimum statutory damages against Kelley.”1 However, the Plaintiff
asserts that “[n]o such stipulation was made against Charles.”2
The stipulation in question was made on March 13, 2014, in order to eliminate the need
for the Plaintiff to respond to certain discovery that was relevant to the issue of damages. At that
time, only Kelley was a defendant in this case; therefore, it is accurate to say that the stipulation
was made between the Plaintiff and Kelley. However, the stipulation reads as follows: “Plaintiff
will only seek a maximum $750 in damages per infringement. For the avoidance of doubt, this
stipulation in no way limits Plaintiff’s ability to recover costs and attorney’s fees under 17
U.S.C. §505.” Dkt. No. 95. On its face, the stipulation is not limited to seeking $750 per
infringement from Kelley. Further, a few weeks later when the Plaintiff moved to amend its
complaint to add Charles as a Defendant, it stated that the “proposed amendments are relatively
minor and the basic nature of the allegations in the case relating to BitTorrent copyright
infringement of the Plaintiff’s works remains the same.” Dkt. No. 107 at 6. This assertion was
disingenuous if by adding Charles as a Defendant the Plaintiff also was reintroducing the issue of
damages beyond the statutory minimum—and the resulting need for damages discovery—into
the case.
Accordingly, the Court finds that the Plaintiff is bound by its stipulation that it would
seek only the minimum statutory damages and that stipulation limits the damages to which the
Plaintiff is entitled from Charles as well as Kelley. Judgment will be entered against Charles and
Kelley, jointly and severally, in the amount of $21,000. The Plaintiff will then be entitled to file

1

$21,000 is $750 (the minimum amount of statutory damages) multiplied by 28, the
number of works at issue.
2
The Court notes that the Plaintiff makes no argument regarding why its stipulation
should not be binding with regard to its claims against Charles.
2

a motion for costs and attorney fees as provided by Federal Rule of Civil Procedure 54(d) and
Local Rule 54-1.
The Plaintiff also asks “that the Court include language in the judgment explicitly
reflecting that Defendants willfully infringed Plaintiff’s copyrights,” that the Court “avoid
including language in the final judgment that might suggest Defendants’ infringements were
committed negligently or with reckless indifference,” and that the Court “expressly hold[] that
Defendants’ infringements were ‘legally unjustified, willful, malicious, and injurious.’” Dkt. No.
249 at 10. This is important, the Plaintiff argues, “because a debt arising from the ‘willful and
malicious injury by the debtor to another entity or to the property of another entity’ is not
dischargeable in bankruptcy,” id. (quoting 11 U.S.C. § 523(a)(6)), and the Plaintiff wants the
Court’s assistance in ensuring that the Defendants will not be able to declare bankruptcy to avoid
paying the judgment against them.
There are several problems with this request. First, a judgment is not a place for factual
findings; rather, “[a] judgment should omit reasons and collateral matters and provide only the
relief to which the prevailing party is entitled.” TDK Electronics Corp. v. Draiman, 321 F.3d
677, 679 (7th Cir. 2003). But even if the Court were to read the Plaintiff’s request as simply a
request for a factual finding independent of the judgment itself, the Plaintiff’s request goes too
far. The Plaintiff alleged in the complaint that the Defendants’ “infringements were committed
‘willfully’ within the meaning of 17 U.S.C. § 504(c)(2).” Second Amended Complaint ¶ 45. By
virtue of the entry of default, that fact has been established as long as it was well-plead. It was;
the facts alleged in the complaint are sufficient to satisfy notice pleading for willful
infringement. However, the only fact that is established is the fact that the Plaintiff pled: that
the “infringements were committed ‘willfully’ within the meaning of 17 U.S.C. § 504(c)(2).”

3

That fact, by itself, is not sufficient to establish that the Defendants acted maliciously. Rather,
“[i]n this circuit, our caselaw establishes that a finding of willfulness is justified ‘if the infringer
knows that its conduct is an infringement or if the infringer has acted in reckless disregard of the
copyright owner’s right.’” Wildlife Exp. Corp. v. Carol Wright Sales, Inc., 18 F.3d 502, 511 (7th
Cir. 1994) (quoting Video Views, Inc. v. Studio 21, Ltd., 925 F.2d 1010, 1020 (7th Cir.))
(emphasis added). That is not a view unique to this circuit. See, e.g., Yellow Pages Photos, Inc.
v. Ziplocal, LP, 795 F.3d 1255, 1271 (11th Cir. 2015) (reaching same result and noting that
“[n]umerous other circuits have held that a finding of willfulness under the Copyright Act is also
appropriate where a defendant recklessly disregarded the possibility that it was infringing a
copyright”) (collecting cases). Therefore, the establishment by default of the fact that the
Defendants acted willfully establishes no more than that the Defendants knew that their conduct
was infringement or that they acted in reckless disregard of the Plaintiff’s rights. The Plaintiff is
not entitled to the finding of maliciousness it requests.3 Neither is the Plaintiff entitled to a
finding of injury, as it did not allege that it was injured in its complaint and it sought only
statutory damages, which do not require proof of any actual injury, so no allegation of injury can
be inferred.
Finally, the Court notes that the Plaintiff asks for injunctive relief in its complaint.
Within 14 days of the date of this Entry, the Defendants shall file a notice stating whether they
object to the entry of the injunctive relief sought and, if they do, explaining why. If such a notice
is filed, the Plaintiff shall file a response within 14 days of the date of the notice. The Court
will then resolve any dispute and enter final judgment.

3

The Court takes no position with regard to whether the Plaintiff is correct that
recklessness is not sufficient to support a finding of dischargeability under 11 U.S.C. §
523(a)(6)).
4

SO ORDERED: 10/29/15

_______________________________
Hon. William T. Lawrence, Judge
United States District Court
Southern District of Indiana

Copy by United States Mail to:
Kelley Tashiro
3690 Chancellor Drive
Greenwood, IN 46163
Copies to all counsel of record via electronic notification

5