Hermeris, Inc. v. McBrien et al

Filing 60

MEMORANDUM AND ORDER granting 56 Motion for Default Judgment. Signed by District Judge Julie A. Robinson on 3/30/2012. Mailed to pro se party Greg Robinson, 110 Mill Street, Framingham, MA 01701; Ad Edge Marketing, 110 Mill Street, Framingham, MA 01701; by certified mail; Certified Tracking Number: 70111570000262700027; 70111570000262700034. (pp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

HERMERIS, INC.
Plaintiff,
v.

PATRICK MCBRIEN, et al.,
Defendants.

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Case No. 10-2483-JAR

MEMORANDUM AND ORDER GRANTING DEFAULT JUDGMENT
This case is before the Court on Plaintiff Hermeris, Inc.’s (“Hermeris”) Renewed Motion
for Default Judgment (Doc. 56) against Defendants Greg Robinson and Ad Edge Marketing.
Defendants have not responded or appeared in this matter.1 The Court has reviewed Plaintiff’s
motion and attached exhibits and finds that default judgment should be entered in favor of
Plaintiff and against Defendants Robinson and Ad Edge Marketing as set forth below.
I.

Background
Hermeris filed its Complaint on September 1, 2010, alleging claims of copyright

infringement, common law unfair competition, fraud, tortious interference with business
expectancy, and civil conspiracy. The Clerk entered default against defendants Greg Robinson
and Ad Edge Marketing on March 16, 2011 after it was shown that they had been served but
failed to answer or otherwise respond .2 The other defendants in this matter have already been
dismissed from this action. The McBrien defendants entered into a settlement agreement and

1

The motion was sent by regular mail to these defendants on March 8, 2012. See Doc. 59. The response
time has elapsed. See D. Kan. R. 6.1(d).
2

Doc. 31.

consent judgment between themselves and Plaintiff based on this agreement. Defendants Diego
Goding, CMBD Strategies and Expansion Firm and Saudin Hodzic were otherwise voluntarily
dismissed. Plaintiff has now moved for default judgment against Robinson and Ad Edge
Marketing.
II.

Discussion
Following entry of default, Rule 55(b)(2) allows the court to enter default judgment.

Once default is entered, the defendant is not entitled to defend itself on the merits.3 But a default
judgment only establishes liability; it does not establish the amount of damages.4 The factual
allegations in the Complaint are taken as true, except for those relating to the amount of
damages.5 “Damages may be awarded only if the record adequately reflects the basis for award
via a hearing or a demonstration by detailed affidavits establishing the necessary facts.”6 Default
judgment may only be entered against Defendants whom the court determines are not minors or
incompetent persons.7 The Court finds that both Defendants, Robinson and Ad Edge Marketing,
are not minors or incompetent persons and accordingly may enter default judgment against them.
Plaintiff seeks money damages, injunctive relief, and attorney’s fees and costs. Based on
the factual allegations in the Complaint and the detailed affidavits submitted by Plaintiff, the

3

Olcott v. Del. Flood Co., 327 F.3d 1115, 1125 & n.11 (10th Cir. 2003).

4

See, e.g., DeMarsh v. Tornado Innovations, L.P., No. 08-2588, 2009 WL 3720180, at *2 (D. Kan. Nov. 4,
2009); Beginner Music v. Tallgrass Broad., LLC, No. 09-4050-SAC, 2009 WL 3720180, at *1 (D. Kan. Aug. 12,
2009).
5

See, e.g., Beck v. Atl. Contracting Co., 157 F.R.D. 61, 64 (D. Kan. 1994).

6

Demarsh, 2009 WL 3720180, at *2 (quoting Adolph Coors Co. v. Movement Against Racism & the Klan,
777 F.2d 1538 1544 (11th Cir. 1985)).
7

Fed. R. Civ. P. 55(b).

2

default in this case establishes that defendants Robinson and Ad Edge Marketing have infringed
Plaintiff’s copyrights.8 According to the Complaint, they were both involved in operating the
infringing websites. Defendants Robinson and Ad Edge Marketing stole potential business from
Plaintiff by using Plaintiff’s copyrighted content and source code. As well, other co-defendants
implicated Robinson and Ad Edge in the infringing activities. According to Defendant McBrien,
Robinson and Ad Edge Marketing jointly operated the domain names of the infringing websites
along with the other codefendants. Having established liability for violation of Plaintiff’s
copyright interests, the Court now turns to the issues of damages and other relief.
Upon proof of copyright infringement, “the copyright owner may elect between actual
damages and profits or statutory damages.”9 Statutory damages may be awarded against “any
two or more infringers . . . jointly and severally, in a sum of not less than $750 or more than
$30,000 as the court considers just.”10 The Court has discretion to determine the amount of the
award.11 Factors relevant to this determination “include the expenses saved (such as licensing
fees) and profits reaped by the defendants in connection with the infringements, the revenues lost
by the plaintiffs as a result of the infringing conduct, and the infringer’s state of mind.”12
Although normally the court must hold an evidentiary hearing to determine the amount of

8

It does not appear that Plaintiff seeks damages for any of its other claims for relief under Kansas common

law.
9

Beginner Music v. Tallgrass Broadcasting, LLC, No. 09-4050, 2009 WL 2475186, at *3 (D. Kan. Aug. 12,
2009) (citing 17 U.S.C. § 504(c)(1)).
10

17 U.S.C. § 504(c)(1).

11

Frank Music Corp. v. Sugg, 393 F. Supp. 2d 1145, 1146 (W.D. Okla. 2005) (quoting Walden Music, Inc.
v. C.H.W., Inc., No. 95-4023-SAC, 1996 WL 254654, at *5 (D. Kan. Apr. 19, 1996)).
12

Id.; see also Boz Scaggs Music v. KND Corp., 491 F. Supp. 908, 914 (D. Conn. 1980).

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damages for a default judgment, a hearing is unnecessary “when the movant submits detailed
affidavits and exhibits that furnish a sufficient uncontested record from which to determine
statutory damages and costs with reasonable certainty.”13 In its Complaint, Plaintiff requests an
award of $30,000 in statutory damages against Defendants Robinson and Ad Edge Marketing.
The Court finds that damages in this amount are appropriate. Plaintiff seeks only one-fifth of the
total available statutory damages. Defendants knew that the material stolen from Plaintiff’s
website was copyrighted and so knowingly and willfully violated Plaintiff’s rights. As well, the
record here contains sufficiently detailed affidavits and other documents by which the Court can
determine damages without an evidentiary hearing. In these circumstances, an award of $30,000
for Plaintiff is just and reasonable.
In addition to statutory damages, courts may give injunctive relief to copyright holders
when “both a past infringement and a continuing threat of infringement are shown.”14 Courts
regularly “issue injunctions as part of default judgments.”15 The court finds that injunctive relief
is justified in this case due to Defendants’ past, willful violation of Plaintiff’s rights and the need
for deterrence of future violations. Accordingly, the Court enters a permanent injunction against
Defendants Robinson and Ad Edge Marketing.
The prevailing party in a copyright infringement case “may recover costs and attorney’s
fees in the court’s discretion.”16 Awarding attorney’s fees serves to “penalize the losing party, to

13

Beginner Music, 2009 WL 2475186, at *2 (citations omitted).

14

Id.

15

Id. at *3 (citing Arista Records, Inc. v. Beker Enters., Inc., 298 F. Supp. 2d 1310, 1314 (S.D. Fla. 2003)).

16

Id. at *4.

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deter continuing infringement, to make the prevailing party whole, and to encourage the proper
prosecution of copyright infringements.”17 The court considers “frivolousness, motivation,
objective unreasonableness of the case, and the need in particular circumstances to advance
considerations of compensation and deterrence” when deciding whether to award attorney’s
fees.18 Plaintiff seeks $5700 in attorneys’ fees, which Plaintiff’s counsel states in his declaration
is less than ten percent of the total fees incurred as of April 8, 2011. While the Court easily finds
that Plaintiff is entitled to a reasonable attorneys’ fee award under the statute, Plaintiff does not
submit documentation of its fee calculation, instead asking to provide the Court with an itemized
statement of fees and costs in camera. Its request to submit evidence in camera is denied.19
Seeing no documentary support in the record at this time for an award of attorneys’ fees, the
Court cannot determine the reasonableness of the request. Plaintiff is directed to D. Kan. Rule
54.2 for the procedure on requesting statutory attorneys’ fees. And Plaintiff may recover costs
under 28 U.S.C. § 1920 by complying with the procedure set forth in Rule 54.1.
IT IS THEREFORE ORDERED BY THE COURT THAT Plaintiff’s Renewed
Motion for Default Judgment (Doc. 56) is GRANTED and the Clerk of the Court shall enter
judgment for Plaintiff as follows:
That Robinson and Ad Edge have infringed Plaintiff’s copyrights;
That Robinson and Ad Edge and their respective directors, officers, agents, servants,
employees, and all other persons in active concert, cooperation, privity or participation with them

17

Id.

18

Frank Music Corp., 393 F. Supp. 2d at 1147 (citing Palladium Music, Inc. v. EatSleepMusic, Inc., 398
F.3d 1193, 1200-01 (10th Cir. 2005)).
19

Plaintiff has previously provided the Court with adequate information to award fees. See Doc. 50, Ex. 1.

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are hereby permanently enjoined from directly or indirectly infringing Plaintiff’s copyrights or
continuing to use, market, offer, sell, dispose of, license, lease, transfer, display, advertise,
reproduce, develop, or manufacture any works derived or copied from Plaintiff’s copyrights or to
participate or assist in any such activity;
That Robinson and Ad Edge and their respective directors, officers, agents, servants,
employees, and all other persons in active concert, cooperation, privity or participation with them
shall take down all infringing content and source code from any and all websites that they develop,
own or operate or assist in the development, ownership of operation of, including, but not limited
to PartnershipRegistry.com, dbaRegistry.us, and TaxIDRegistry.us;
That Robinson and Ad Edge and their respective directors, officers, agents, servants,
employees, and all other persons in active concert, cooperation, privity or participation with
them shall destroy all works and websites, including but not limited to any located at
PartnershipRegistry.com, dbaRegistry.us and TaxIDRegistry.us, that infringe upon any of
Plaintiff’s copyrights;
That Plaintiff shall recover from Robinson and Ad Edge, jointly and severally, statutory
damages in the amount of $30,000; and
That Plaintiff is entitled to reasonable attorneys’ fees and expenses and to reasonable costs.
This matter is hereby fully adjudicated as to all Parties.
IT IS SO ORDERED.

Dated: March 30, 2012
S/ Julie A. Robinson
JULIE A. ROBINSON
UNITED STATES DISTRICT JUDGE
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