Cell Film Holdings, LLC v. Doe-76.115.222.248

Filing 43

ORDER - The Court ADOPTS Judge Beckerman's Findings and Recommendation, ECF 39 . Plaintiffs' motion for default judgment (ECF 36 ) is GRANTED. A judgment will be entered against Defendant, permanently enjoining him from infringing Plaintiff's rights in the movie Cell and awarding $750 in statutory damages to Plaintiff. Signed on 11/21/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CELL FILM HOLDINGS, LLC,
Plaintiff,

Case No. 3:16-1387-SB
ORDER

v.
MAURICE A. NEWCOMB, SR.,
Defendant.
Michael H. Simon, District Judge.
United States Magistrate Judge Stacie F. Beckerman issued Findings and
Recommendation in this case on October 12, 2017. ECF 39. Judge Beckerman recommended
that Plaintiffs’ motion for default judgment be granted and a default judgment be entered in the
amount of statutory damages of $750 for each Plaintiff. Plaintiff timely filed objections. Plaintiff
objects that damages should be higher than the statutory minimum of $750.
Under the Federal Magistrates Act (“Act”), the court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C.
§ 636(b)(1). If a party files objections to a magistrate’s findings and recommendations, “the court
shall make a de novo determination of those portions of the report or specified proposed findings
or recommendations to which objection is made.” Id.; Fed. R. Civ. P. 72(b)(3).
If no party objects, the Act does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act],
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intended to require a district judge to review a magistrate’s report to which no objections are
filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding
that the court must review de novo magistrate’s findings and recommendations if objection is
made, “but not otherwise”).
Although review is not required in the absence of objections, the Act “does not preclude
further review by the district judge[] sua sponte . . . under a de novo or any other standard.”
Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed. R. Civ. P. 72(b)
recommend that “[w]hen no timely objection is filed,” the court review the magistrate’s findings
and recommendations for “clear error on the face of the record.”
The Court has reviewed de novo the issue objected-to by Plaintiff—whether damages
should be greater than $750. Plaintiff argues that Defendant had continued to use BitTorrent
even after receiving notices that such conduct violated the law, including receiving email notices
from Comcast and being served with his deposition subpoena under Rule 45 of the Federal Rules
of Civil Procedure and the summons and Amended Complaint in this action. Judge Beckerman
found that there is no evidence that the emails sent from Comcast, to Defendant’s Comcast email
address, were received by Defendant. The Court agrees that Plaintiff has failed to show that the
Comcast email is Defendant’s primary (or even a monitored) email address or that Defendant
actually received those emails. With respect to service of the summons and complaint, this
happens in every case, and nearly every BitTorrent case involves service of a deposition
subpoena under Rule 45. Under Plaintiff’s theory, enhanced damages would thus be required in
every case if Plaintiff’s unchallenged monitoring mechanism identify ongoing BitTorrent activity
associated with the IP address. For the reasons discussed by Judge Beckerman regarding the

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level of culpability and when enhanced damages are appropriate, the Court does not find
enhanced damages under such circumstances to be appropriate.
For the portion of the Findings and Recommendation to which no party made objections,
the Court follows the recommendation of the Advisory Committee and reviews Judge
Beckerman’s Findings and Recommendation for clear error on the face of the record. No such
error is apparent.
CONCLUSION
The Court ADOPTS Judge Beckerman’s Findings and Recommendation, ECF 39.
Plaintiffs’ motion for default judgment (ECF 36) is GRANTED. A judgment will be entered
against Defendant, permanently enjoining him from infringing Plaintiff’s rights in the movie Cell
and awarding $750 in statutory damages to Plaintiff.
IT IS SO ORDERED.
DATED this 21st day of November, 2017.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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