Fathers & Daughters Nevada, LLC v. Doe-220.127.116.11 et al
Opinion and Order - Plaintiff's motion for default judgment (ECF 47 ) is GRANTED. Defendant is ordered to (1) pay Plaintiff statutory damages of $1,500; (2) cease all activities infringing on Plaintiff's rights in the motion picture Fathers & Daughters; and (3) destroy all unauthorized copies of Fathers & Daughters in the possession of Defendant. Signed on 12/19/2016 by Judge Michael H. Simon. (mja)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
FATHERS & DAUGHTERS NEVADA,
Case No. 6:16-cv-315-SI
OPINION AND ORDER
Michael H. Simon, District Judge.
Plaintiff Fathers & Daughters Nevada, LLC brings this action against Defendant Sabrina
Leonard. Plaintiff alleges that Defendant copied and distributed Plaintiff’s motion picture
Fathers & Daughters through a public BitTorrent network in violation of Plaintiff’s exclusive
rights under the Copyright Act. Before the Court is Plaintiff’s motion for entry of default
judgment under Federal Rule of Civil Procedure 55(b). For the following reasons, the Court
grants Plaintiff’s motion, and will enter a default judgment against Defendant in the amount of
$1,500, along with injunctive relief.
PAGE 1 – OPINION AND ORDER
Under Federal Rule of Civil Procedure 55(a), the Clerk of the Court is required to enter
an order of default if a party against whom affirmative relief is sought fails timely to answer or
otherwise defend an action. Fed. R. Civ. P. 55(a) (“When 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, the clerk must enter the party’s default.”). Upon the entry of default, the
Court accepts “the well-pleaded factual allegations” of the complaint “as true.” DIRECTV, Inc. v.
Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (quoting Cripps v. Life Ins. Co. of N. Am., 980
F.2d 1261, 1267 (9th Cir. 1992)); see also Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th
Cir. 1977). The court, however, does not accept as admitted facts that are not well-pleaded,
conclusions of law, or facts relating to the amount of damages. DIRECTV, 503 F.3d at 854;
Geddes, 559 F.2d at 560; see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702
(9th Cir. 2008) (“‘The general rule of law is that upon default the factual allegations of the
complaint, except those relating to the amount of damages, will be taken as true.’” (quoting
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987))).
After default has been entered against a defendant, a court may enter a default judgment
against that defendant. See Fed. R. Civ. P. 55(b). “The district court’s decision whether to enter a
default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980);
see also Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 2011) (noting that a district’s court
decision whether to enter a default judgment is reviewed for abuse of discretion). In Eitel v.
McCool, 782 F.2d 1470 (9th Cir. 1986), the Ninth Circuit set out factors to guide a district
court’s consideration of whether to enter a default judgment. See DIRECTV , 503 F.3d at 852
(noting that Eitel “set out factors to guide district court’s determination regarding the
appropriateness of granting a default judgment”).
PAGE 2 – OPINION AND ORDER
The Ninth Circuit in Eitel held:
Factors which may be considered by courts in exercising discretion
as to the entry of a default judgment include: (1) the possibility of
prejudice to the plaintiff, (2) the merits of plaintiff's substantive
claim, (3) the sufficiency of the complaint, (4) the sum of money at
stake in the action; (5) the possibility of a dispute concerning
material facts; (6) whether the default was due to excusable
neglect, and (7) the strong policy underlying the Federal Rules of
Civil Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72 (punctuation in original). The “starting point” of the court’s analysis,
however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.
Beginning in 2014, counsel for Plaintiff has filed hundreds of cases in this District
asserting that Doe defendants, originally identified only by their Internet Protocol (“IP”)
addresses, violated the Copyright Act by downloading movies on the internet using a peer-topeer BitTorrent file sharing protocol. On February 1, 2016, Plaintiff filed its complaint in this
case, identifying numerous defendants IP addresses as persons who illegally downloaded Fathers
& Daughters using the BitTorrent network. After the Court granted Plaintiff’s motion to
subpoena the defendants’ internet service provider, Plaintiff identified Joshua Kimber as the
subscriber associated with the infringing IP address 18.104.22.168. On March 21, 2015,
Defendant telephoned Plaintiff’s counsel, confirmed that she was the party who downloaded and
distributed Plaintiff’s motion picture, and confirmed her current address. After this telephone
conversation, Defendant ceased all communications with Plaintiff’s counsel.
On May 19, 2016, Plaintiff filed a motion to sever all defendants except for
Doe 22.214.171.124. On May 26, 2016, Plaintiff filed an amended complaint, naming Sabrina
Leonard as the defendant. On June 30, 2016, the Court appointed pro bono counsel to represent
PAGE 3 – OPINION AND ORDER
Defendant. Defendant did not respond to several letters and telephone calls from appointed
counsel and on August 22, 2016, counsel requested the appointment be terminated.
On September 15, 2016, Defendant was personally served with process. The Court issued
an Order of Default on October 25, 2016. On November 15, 2016, Plaintiff filed a motion for
default judgment. Plaintiff seeks statutory damages in the amount of at least $1,500.
To establish a claim of copyright infringement, a “plaintiff must show ownership of the
copyright and copying by the defendant.” Fox Broad. Co. v. Dish Network L.L.C., 747
F.3d 1060, 1066-67 (9th Cir. 2013) (quotation marks omitted). The factual allegations of
Plaintiff’s Amended Complaint, which the Court accepts as true upon default, establish these
elements. Accordingly, a judgment of default is appropriate in this case. See Glacier Films
(USA), Inc. v. Tenorio, 2016 WL 3766465, at *2 (D. Or. June 22, 2016); Voltage Pictures, LLC
v. Martinez, 2015 WL 4772856, at *2 (D. Or. Aug. 11, 2015).
Under the Copyright Act, a plaintiff may elect an award of statutory damages “in a sum
of not less than $750 or more than $30,000” per infringement, in lieu of an award representing
actual damages. 17 U.S.C. § 504(c)(1). If a court finds the infringement to be willful, “the court
in its discretion may increase the award of statutory damages to a sum of not more than
$150,000.” 17 U.S.C. § 504(c)(2). The court has broad discretion in setting the amount of
statutory damages. See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham,
Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (“If statutory damages are elected, the court has wide
discretion in determining the amount of statutory damages to be awarded, constrained only by
the specified maxima and minima.”) (quotation marks and alteration omitted).
Plaintiff concedes that the amount of economic damages suffered as a result of
Defendant’s infringing activity is highly speculative and incalculable. Thus Plaintiff seeks only
PAGE 4 – OPINION AND ORDER
statutory damages. Plaintiff argues that Defendant’s conduct was willful and that because she has
refused to participate in the legal process, statutory damages of at least $1,500 are warranted.
The Court agrees.
Defendant verbally admitted to Plaintiff’s counsel that Defendant engaged in the
infringing activity. The Court appointed pro bono counsel to help Defendant, and she was
nonresponsive to appointed counsel. Defendant was personally served with process, and then
refused to participate in this proceeding. There is no indication that Defendant changed her
address or did not receive correspondence from the Court, pro bono counsel, and opposing
counsel. Under these circumstances, the Court finds that the appropriate statutory damage award
is $1,500. Cf. Automata Prods., Inc. v. Spicher, 2016 WL 4621198 (D. Or. Sept. 6, 2016)
(awarding statutory damages of $1,500 where the defendant expressly admitted to the infringing
behavior, was personally served, refused to participate in the lawsuit, and the plaintiff provided
evidence of ongoing infringing conduct).
Plaintiff also seeks injunctive relief preventing Defendant from future infringing activity
against Plaintiff’s motion picture Fathers & Daughters. The Court agrees that this case merits
injunctive relief under 17 U.S.C. §§ 502 and 503. Under these sections, the Court may “grant
temporary and final injunctions on such terms as it may deem reasonable to prevent or restrain
infringement of a copyright.” § 502(a). The Court may also “order the destruction or other
reasonable disposition of all copies or phonorecords found to have been made or used in
violation of the copyright owner’s exclusive rights.” § 503(b). Accordingly, the Court orders a
permanent injunction enjoining Defendant from directly, indirectly, or contributorily infringing
on Plaintiff’s rights, including without limitation by using the internet to reproduce or copy
Plaintiff’s motion picture Fathers & Daughters, to distribute Fathers & Daughters, or to make
PAGE 5 – OPINION AND ORDER
Fathers & Daughters available for distribution to the public except pursuant to a lawful license
or with the express authority of Plaintiff. The Court also orders Defendant to destroy all
unauthorized copies of Fathers & Daughters.
Plaintiff’s motion for default judgment (ECF 47) is GRANTED. Defendant is ordered to
(1) pay Plaintiff statutory damages of $1,500; (2) cease all activities infringing on Plaintiff’s
rights in the motion picture Fathers & Daughters; and (3) destroy all unauthorized copies of
Fathers & Daughters in the possession of Defendant.
IT IS SO ORDERED.
DATED this 19th day of December, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge
PAGE 6 – OPINION AND ORDER
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