Oppenheimer et al v. Holt et al
Filing
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ORDER granting Plaintiff's 13 Motion for Default Judgment against Brian Holt. Signed by District Judge Martin Reidinger on 05/04/2015. (klb) Modified text on 5/4/2015 (klb).
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:14-cv-000208-MR-DLH
DAVID OPPENHEIMER and
)
PERFORMANCE IMPRESSIONS, LLC, )
)
Plaintiffs,
)
)
vs.
)
)
BRIAN HOLT and
)
THREE OAKS GROUP,
)
)
Defendants.
)
_______________________________ )
ORDER
THIS MATTER is before the Court on the Plaintiffs’ Motion for Default
Judgment Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure
[Doc. 13].
I.
FACTUAL AND PROCEDURAL BACKGROUND
The Plaintiffs filed a Complaint on August 12, 2014 against the
Defendants for copyright infringement.
[Doc. 1].
The Plaintiff David
Oppenheimer places his photographic work online for sale. [Doc. 1 at 3].
The Plaintiffs allege that the Defendants infringed the copyright of a
photograph created by the Plaintiffs, “without Plaintiffs’ knowledge or
consent, and placed the photograph on at least one commercial internet web
site operated by Defendants.” [Doc. 1 at 1]. Further, the Plaintiffs allege that
the “Defendants’ acts of infringement are willful, intentional, purposeful, in
disregard of, and done with indifference to Plaintiffs’ rights.” [Doc. 1 at 4].
The Plaintiffs claim that the Defendants never had any permission to use the
photograph, and claim that they demanded the Defendants to remove the
photograph from their web site www.ashevillenative.com in July 2013. [Doc.
1 at 4]. They assert, however, that the “Defendants ignored the demand
letter, and continued to display the Photograph for some unknown period of
time.” [Doc. 1 at 3-4]. Thus, the Plaintiffs seek damages under the federal
Copyright Act, 17 U.S.C. § 101, et seq. [Doc. 1 at 1]. Particularly, the
Plaintiffs seek “the maximum compensatory damages allowed by federal
law, including pre-judgment and post-judgment interest,” as well as “the
Plaintiffs’ costs and attorneys’ fees, pursuant to 17 U.S.C. § 505.” [Doc. 1 at
5]. On February 4, 2015, the Plaintiffs filed a Notice of Voluntary Dismissal
without prejudice regarding Three Oaks Group. [Doc. 8]. Thus, this current
action is only proceeding against Defendant Brian Holt.
The Plaintiffs served their Summons and Complaint on Defendant
Brian Holt (“Defendant”) on December 4, 2014, “[a]fter numerous attempts.”
[Doc. 13-1]. The Summons noted:
Within 21 days after service of this summons on you
. . . you must serve on the plaintiff an answer to the
attached complaint or a motion under Rule 12 of the
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Federal Rules of Civil Procedure. The answer or
motion must be served on the plaintiff or plaintiff’s
attorney . . . If you fail to respond, judgment by
default will be entered against you for the relief
demanded in the complaint. You also must file your
answer or motion with the court.
[Doc. 6 at 1].
The Defendant did not file an answer or appear in the
prescribed 20-day time period. Further, the Defendant did not move for an
extension of time or appear after the expiration of the statutory time period.
Thus, on February 6, 2015, the Plaintiffs filed a Motion for Entry of Default
against the Defendant, [Doc. 9], and the Clerk of Court entered default on
that same day [Doc. 11]. The Plaintiffs then filed the present motion at issue,
the Motion for Default Judgment Pursuant to Rule 55(b) of the Federal Rules
of Civil Procedure. [Doc. 13]. The Plaintiffs are seeking statutory damages
in the amount of $30,000.00, costs in the amount of $1,460.00, and
attorneys’ fees in the amount of $3,535.00. [Id.].
II.
DISCUSSION
“To obtain a default judgment, a party must first seek an entry of default
under Federal Rule of Civil Procedure 55(a).”
Hayhurst v. Liberty Int'l
Underwriters, No. 5:08cv5347, 2009 U.S. Dist. LEXIS 5347, at *2 (N.D.W.Va.
Jan. 29, 2009); see Eagle Fire, Inc. v. Eagle Integrated Controls, Inc., No.
3:06cv264, 2006 U.S. Dist. LEXIS 41054, at * 14 (E.D. Va. June 20, 2006)
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(“The entry of default is a procedural prerequisite to the entry of a default
judgment.”). Rule 55(a) states that the clerk must enter default “[w]hen a
party against whom a judgment for affirmative relief is sought has failed to
plead or otherwise defend, and that failure is shown by affidavit or otherwise.”
Fed.R.Civ.P. 55(a). After the clerk enters default, the party may seek a
default judgment under Rule 55(b)(1) or (2), depending on the nature of the
relief sought. Rule 55(b) “authorizes the entry of a default judgment when a
defendant fails ‘to plead or otherwise defend’ in accordance with the Rules.”
United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). By his default,
the Defendant has admitted the Plaintiff’s well-pleaded factual allegations in
his Complaint. Ryan v. Homecomings Fin. Network, 253 F. 3d 778, 780 (4th
Cir. 2001).
The Copyright Act provides that a plaintiff may seek statutory damages
not less than $750 or more than $30,000 in an amount the Court deems just.
See 17 U.S.C. § 504(c)(1). District courts hold “wide discretion” in setting
the amount of statutory damages under the Copyright Act. 17 U.S.C. §
504(c). Although the Fourth Circuit has not specifically described how the
statutory damages should be determined, the Second Circuit has provided
guidance regarding factors to be considered, as follows:
(1) the infringer’s state of mind;
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(2)
(3)
(4)
(5)
the expenses saved, and profits earned, by the infringer;
the revenue lost by the copyright holder;
the deterrent effect on the infringer and third parties;
the infringer’s cooperation in providing evidence concerning the
value of the infringing material; and
(6) the conduct and attitude of the parties.
Bryant v. Media Right Prods., Inc., 603 F.3d 135, 144 (2d Cir. 2010).
Here, the Plaintiffs seek the maximum statutory damage allowance of
$30,000.00 under the Copyright Act. The Plaintiffs have alleged that the
Defendant publicly displayed the Plaintiffs’ photograph without any
permission. [Doc. 1 at 3]. Further, the Plaintiffs have alleged that the
Defendant ignored the demand letter on July 26, 2013 and continued to
display the photograph “for some unknown period of time.” [Id. at 4]. The
Plaintiffs also alleged that the “Defendants’ acts of infringement are willful,
intentional, purposeful, in disregard of, and done with indifference to
Plaintiffs’ rights.” [Id. at 4]. These allegations relate to the first and sixth
factors of the infringer’s state of mind and the conduct and attitude of the
parties. These allegations, however, provide little help to the Court. Since
the duration of the infringement was “an unknown period of time,” it is
impossible for the Court to determine whether this factor should weigh in
favor of a higher or lower damage amount.
As for the allegation of
Defendant’s “willful, intentional, purposeful” infringement, these are
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conclusory allegations for which Plaintiffs have presented no support. It is
only the “well pleaded” allegations that are deemed admitted. Therefore, this
is likewise of no assistance in setting the amount of damages. The Plaintiffs
have not provided evidence regarding the second and third factors of the
expenses saved and profits earned by the infringer, or the revenue lost by
the copyright holder. Further, the Plaintiffs have not indicated how the fourth
factor applies here; that is, they have not delineated how statutory damages
they seek would have a deterrent effect on the infringer and third parties.
Finally, the fact that the Defendant did not respond to the Summons in this
case may relevant to the fifth factor of the infringer’s cooperation in providing
evidence concerning the value of the infringing material. But such is the
nature of default. The Plaintiffs’ Complaint has set forth few details regarding
the nature of the infringement in this case. The burden of proof as t damages
is pm the Plaintiffs, and they have not persuaded the Court that the
Defendant’s conduct in this case warrants a statutory award greater than
$750.00 in damages.
Further, the Copyright Act gives the Court discretion to award
reasonable attorneys’ fees and costs to the prevailing party. See 17 U.S.C.
§ 505. Here, the Plaintiffs claim that they incurred costs totaling $1,460.00
and attorneys’ fees totaling $3,535.00. The Court finds that the amount of
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the Plaintiffs’ request for attorneys’ fees and costs is reasonable in light of
the time and expenses associated with prosecuting this claim. [Doc. 13-1].
The Court finds that in deciding this application for default judgment,
including determining the amount of damages, there is no need for an
evidentiary hearing. The Plaintiffs’ uncontested pleadings provide a basis
for a proper decision in this case.
V.
CONCLUSION
For the foregoing reasons, the Court will grant the Plaintiffs’ Motion for
Default Judgment Pursuant to Rule 55(b) of the Federal Rules of Civil
Procedure. [Doc. 13].
IT IS, THEREFORE ORDERED that the Plaintiff’s Motion for Default
Judgment Pursuant to Rule 55(b) of the Federal Rules of Civil Procedure is
GRANTED, and that the Plaintiffs have and recover of the Defendant
damages in the amount of SEVEN HUNDRED FIFTY DOLLARS ($750.00),
and attorneys’ fees and costs in the amount of FOUR THOUSAND, NINE
HUNDRED NINETY-FIVE DOLLARS ($4,995.00).
IT IS SO ORDERED.
Signed: May 4, 2015
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