ME2 Productions, Inc. v. John and Jane Does

Filing 38

ORDER granting in part and denying in part 35 Motion for Default Judgment. Plaintiff shall prepare and file an appropriate judgment for the court's signature consistent with the foregoing within twenty-one (21) days of the entry of this order. Signed by Judge James C. Mahan on 4/12/2018. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 DISTRICT OF NEVADA 6 *** 7 ME2 PRODUCTIONS, INC., 8 9 10 Case No. 2:17-CV-667 JCM (NJK) Plaintiff(s), ORDER v. SANDRA SANCHEZ, et al., 11 Defendant(s). 12 13 14 Presently before the court is plaintiff ME2 Productions, Inc.’s motion for default judgment against defendant Sandra Sanchez. (ECF No. 35). 15 I. 16 This is one of several similar cases originally filed by plaintiff against numerous 17 unidentified Doe defendants for infringing its copyright in the film “Mechanic 2: Resurrection” by 18 using BitTorrent software. For a more detailed explanation of the background to these cases, see 19 ME2 Productions, Inc. v. Bayu, no 2:17-cv-00724-JCM-NJK, 2017 WL 5165487 (D. Nev. Nov. 20 7, 2017). Facts 21 On November 15, 2017, the court adopted in part Magistrate Judge Koppe’s report and 22 recommendation that all but the first-named plaintiff be severed and dismissed from the case, 23 thereby dismissing all defendants except for defendant Sanchez. (ECF No. 37). 24 II. 25 Obtaining a default judgment is a two-step process. Eitel v. McCool, 782 F.2d 1470, 1471 26 (9th Cir. 1986). First, “[w]hen a party against whom a judgment for affirmative relief is sought 27 has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the 28 clerk must enter the party’s default.” Fed. R. Civ. P. 55(a). Federal Rule of Civil Procedure James C. Mahan U.S. District Judge Legal Standard 1 55(b)(2) provides that “a court may enter a default judgment after the party seeking default applies 2 to the clerk of the court as required by subsection (a) of this rule.” 3 The choice whether to enter a default judgment lies within the discretion of the court. 4 Aldabe v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In the determination of whether to grant 5 a default judgment, the court should consider the seven factors set forth in Eitel: (1) the possibility 6 of prejudice to plaintiff if default judgment is not entered; (2) the merits of the claims; (3) the 7 sufficiency of the complaint; (4) the amount of money at stake; (5) the possibility of a dispute 8 concerning material facts; (6) whether default was due to excusable neglect; and (7) the policy 9 favoring a decision on the merits. 782 F.2d at 1471–72. In applying the Eitel factors, “the factual 10 allegations of the complaint, except those relating to the amount of damages, will be taken as true.” 11 Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); see also Fed. R. Civ. P. 8(d). 12 III. Discussion 13 Plaintiff requests the court enter default judgment against defendant as follows: $15,000 in 14 statutory damages; a permanent injunction against defendant; and attorney’s fees and costs in the 15 amount of $5,048.75. (ECF No. 35). 16 On August 30, 2017, plaintiff filed a motion for entry of clerk’s default as to defendant 17 Sanchez (ECF No. 33), and on August 31, 2017, the clerk entered default, (ECF No. 34). 18 Therefore, plaintiff has satisfied subsection (a) of Federal Rule of Civil Procedure 55. 19 The first Eitel factor weighs in favor of default judgment in this case. Defendant has failed 20 to respond or appear in the case, which prejudices plaintiff’s ability to pursue its claims on the 21 merits and seek recovery of damages. See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 22 1177 (C.D. Cal 2002) (“Potential prejudice to Plaintiffs favors granting a default judgment. If 23 Plaintiffs’ motion for default judgment is not granted, Plaintiffs will likely be without other 24 recourse for recovery.”). 25 26 The second and third Eitel factors favor plaintiff in this case. Plaintiff’s complaint adequately alleges plaintiff’s copyright infringement claims. See Eitel, 782 F.2d at 1471. 27 The fourth Eitel factor, which compares the amount of money at stake to the seriousness 28 of defendant’s conduct, supports a default judgment in favor of plaintiff. “If the sum of money at James C. Mahan U.S. District Judge -2- 1 issue is reasonably proportionate to the harm caused by the defendant’s actions, then default 2 judgment is warranted.” Landstar Ranger, Inc. v. Parth Enter., Inc., 725 F. Supp. 2d 916, 921 3 (N.D. Cal. 2010). 4 For statutory damages, plaintiff requests $15,000 under 17 U.S.C. § 504(c). The statute 5 sets a $750 minimum and $30,000 maximum award for damages in copyright infringement cases. 6 17 U.S.C. § 504(c)(1). The maximum increases to $150,000 when the infringement was willful. 7 17 U.S.C. § 504(c)(2). Courts have “wide discretion in determining the amount of statutory 8 damages to be awarded, constrained only by the specified maxima and minima.” Peer Int'l Corp. 9 v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (quoting Harris v. Emus Records 10 Corp., 738 F.2d 1329, 1335 (9th Cir. 1984)). 11 Given defendant’s numerous opportunities to respond to plaintiff’s demand letters or 12 otherwise appear in the action, coupled with plaintiff’s unopposed allegations that the court takes 13 as true, the court holds defendant willfully infringed on plaintiff’s copyright. However, similarly 14 to another court in this district,1 the court holds that an award of $15,000 would severely 15 overcompensate plaintiff and unduly punish defendant for the conduct at issue here. The court 16 will exercise its discretion and award statutory damages in the amount of $1,500. See Peer, 909 17 F.2d at 1336. This award will adequately protect plaintiff’s copyrights without constituting 18 excessive punishment. See LHF Productions, Inc. v. Buenafe, no. 2:16-cv-01804-JAD-NJK, 2017 19 WL 4797523, at *4 (D. Nev. Oct. 24, 2017). 20 The Copyright Act allows courts to award the recovery of full costs and reasonable 21 attorney’s fees to the prevailing party. 17 U.S.C. § 505. Plaintiff moves for $4,248.752 in 22 attorney’s fees and $800 in costs, for a total of $5,048.75. 23 24 Therefore, the total sum of money at stake is $6,548.75. Thus, the fourth factor favors an entry of default judgment in that total amount. See Eitel, 782 F.2d at 1471. 25 26 27 28 James C. Mahan U.S. District Judge 1 In LHF Productions, Inc. v. Buenafe, no. 2:16-cv-01804-JAD-NJK, 2017 WL 4797523 (D. Nev. Oct. 24, 2017), Judge Dorsey awarded plaintiff $1,500 in statutory damages on a legally identical fact pattern. 2 Plaintiff used a lodestar calculation of $375 an hour multiplied by 11.33 hours reasonably spent litigating this case, which equals $4,248.75. -3- 1 The fifth Eitel factor, the possibility of a dispute concerning material facts, favors plaintiff. 2 Here, there is no dispute concerning the material facts of the case. Plaintiff has adequately pleaded 3 copyright infringement claims. Further, “[o]nce the clerk enters a default, the well-pleaded factual 4 allegations of the complaint are taken as true, except for those allegations relating to damages.” 5 O’Brien v. United States of America, no 2:07-cv-00986-GMN-GWF, 2010 WL 3636171, at *1 (D. 6 Nev. Sept. 9, 2010). Therefore, the court must accept all well-pleaded factual allegations in 7 plaintiff’s complaint as true. Considering the well-pleaded factual allegations, there are no 8 disputes of material fact regarding defendant’s infringing conduct. Accordingly, the fifth Eitel 9 factor favors plaintiff. See Eitel, 782 F.2d at 1471–72. 10 The sixth Eitel factor considers excusable neglect. 782 F.2d at 1472. The factor favors 11 entry of default judgment when the defendant has been properly served or plaintiff shows that 12 defendant is aware of the lawsuit and failed to answer. Meadows v. Dominican Republic, 817 F.2d 13 517, 521 (9th Cir. 1987). Here, plaintiff properly served defendant, who has failed to answer or 14 otherwise appear. Accordingly, the court holds that plaintiff has demonstrated defendant’s failure 15 to appear is not the result of excusable neglect. See id. The sixth Eitel factor favors default 16 judgment in this case. See Eitel, 782 F.2d at 1472. 17 The seventh Eitel factor considers the strong policy favoring case disposition on the merits. 18 Id. While public policy generally favors disposition on the merits, default judgment is proper 19 when a defendant deliberately chooses not to defend the case. PepsiCo, Inc., 238 F. Supp. 2d at 20 1177. Defendant’s conduct in this case has made it impractical, if not impossible, to adjudicate 21 this case on the merits. Accordingly, default judgment is appropriate. See Eitel, 782 F.2d at 1472; 22 PepsiCo, Inc., 238 F. Supp. 2d at 1177. 23 After considering the foregoing, the court finds good cause to grant plaintiff’s motion for 24 default judgment. Moreover, plaintiff has properly complied with Rule 55. Therefore, the court 25 will grant plaintiff’s motion for default judgment. 26 Plaintiff requests a permanent injunction against defendant “enjoining [her] from directly 27 or indirectly infringing Plaintiff’s rights as to the Plaintiff’s motion picture, including without 28 James C. Mahan U.S. District Judge -4- 1 limitation using the Internet to reproduce, to distribute, to copy, or to publish the motion picture.” 2 (ECF No. 35 at 14). 3 The Copyright Act allows courts to “grant temporary and final injunctions on such terms 4 as it may deem reasonable to prevent or restrain infringement of a copyright.” 17 U.S.C. § 502(a). 5 The Supreme Court held in eBay Inc. v. MercExchange, L.L.C. that a plaintiff must satisfy a four- 6 factor test to receive a permanent injunction in a patent-infringement case. 547 U.S. 388, 391 7 (2006). Plaintiff must demonstrate: “(1) that it has suffered an irreparable injury; (2) that remedies 8 available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, 9 considering the balance of hardships between the plaintiff and defendant, a remedy in equity is 10 warranted; and (4) that the public interest would not be disserved by a permanent injunction.” Id. 11 This test also applies to copyright-infringement cases. Flexible Lifeline Systems, Inc. v. Precision 12 Lift, Inc., 654 F.3d 989, 995–96 (9th Cir. 2011). 13 Plaintiff argues that “[m]onetary damages alone are simply inadequate” because “absent 14 injunctive relief to force the deletion of each torrent file from the Defendant’s computers ... 15 infringement will continue unabated in exponential fashion.” (ECF No. 35 at 12). The court holds 16 that the monetary judgment in this case is sufficient to compensate plaintiff for any infringement 17 injury and likely to sufficiently deter defendant from infringing plaintiff’s copyright, so plaintiff 18 fails to satisfy the second factor of the permanent-injunction test. See MercExchange, 547 U.S. at 19 391. Accordingly, the court will deny plaintiff’s request for injunctive relief. 20 IV. 21 Accordingly, 22 IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that plaintiff’s motion for 23 default judgment (ECF No. 35) be, and the same hereby is, GRANTED in part and DENIED in 24 part, consistent with the foregoing. 25 ... 26 ... 27 ... 28 ... James C. Mahan U.S. District Judge Conclusion -5- 1 IT IS FURTHER ORDERED that plaintiff shall prepare and file an appropriate judgment 2 for the court’s signature consistent with the foregoing within twenty-one (21) days of the entry of 3 this order. 4 5 6 DATED April 12, 2018. __________________________________________ UNITED STATES DISTRICT JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 James C. Mahan U.S. District Judge -6-

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