Fathers & Daughters Nevada, LLC v. Doe-50.53.255.62

Filing 62

ORDER - The Court liberally construes Defendants' motion to dismiss (ECF 55 ) as a motion to set aside the entry of default. This motion is GRANTED. The entry of default (ECF 49 ) is set aside. Plaintiffs' motion for default judgm ent (ECF 52 ) is DENIED AS MOOT. Defendant has made some statements in his motion to dismiss that appear to be denials and affirmative defenses asserted against Plaintiffs' Amended Complaint. Defendant must, however, file a new document in resp onse to Plaintiff's Amended Complaint (ECF 28 ) either an Answer or a motion (such as a motion to dismiss), that complies with the Federal Rules of Civil Procedure. If Defendant does not file such a document, then Plaintiffs will again be able to seek an entry of default. The deadline for Defendant to file such a document is December 8, 2017. Signed on 11/7/2017 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

FATHERS & DAUGHTERS NEVADA,
LLC, et. al,

Case No. 3:16-cv-1645-SI
ORDER

Plaintiffs,
v.
JAMES EDWARD BECKMANN,
Defendant.
Michael H. Simon, District Judge.
On September 18, 2017, the Court entered an order of default against Defendant James
Edward Beckmann for failure to answer or otherwise plead to the complaint. ECF 49. Although
Mr. Beckmann had filed several notices and other filings with the Court, none, even liberally
construed, had answered or otherwise responded to the Amended Complaint. On October 5,
2017, Plaintiffs filed a motion for default judgment. ECF 52. On October 11, 2017, Defendant
Beckmann filed a “Notice of Void Judgment,” which the Court construed as a response in
opposition to the motion for default judgment. ECF 54. On October 17, 2017, Defendant
Beckmann filed a motion to dismiss this case, along with several additional notices. ECF 55-58.

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A court must liberally construe the filings of a pro se litigant. See Hebbe v. Pliler, 627
F.3d 338, 342 (9th Cir. 2010); Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998). Until
Defendant filed his Motion to Dismiss, his filings contained arguments irrelevant to the claims in
this case—e.g., arguments that the Carl D. Crowell is using a pseudonym, arguments that the
undersigned Judge is using a pseudonym, arguments that Defendant refuses to accept the
jurisdiction of the Court, threats that use of Defendant’s name or any orders against him will
result in millions of dollars in judgments in his favor and against Mr. Crowell and the
undersigned Judge. Although Defendant’s Motion to Dismiss contains several of these same
arguments, construing it liberally, it also asserts that that Plaintiffs do not have sufficient
evidence that Mr. Beckmann is the person who infringed on Plaintiffs’ rights, that their evidence
is hearsay, that they fail to state a claim on which relief can be granted, that there is no witness
with firsthand knowledge regarding the alleged infringement, that there is no evidence that can
fairly trace the conduct of Mr. Beckmann to the alleged injury of Plaintiffs, and that there is no
evidence that it was not a third party who infringed on Plaintiffs’ rights, particularly because this
case involves an “open internet site.” The Court construes Defendant’s “motion to dismiss”
(ECF 55) as a motion to set aside the Court’s entry of default.
The Court may set aside an entry of default “for good cause.” Fed. R. Civ. P. 55(c).
Whether to set aside the entry of default is within the Court’s discretion, and “a district court’s
discretion is especially broad when, as in this case, it is entry of default that is being set aside,
rather than a default judgment.” Brady v. United States, 211 F.3d 499, 504 (9th Cir. 2000)
(quotation marks omitted). In the Ninth Circuit, the “rules for determining when a default should
be set aside are solicitous towards movants, especially those whose actions leading to the default
were taken without the benefit of legal representation.” United States v. Signed Pers. Check No.

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730 of Yubran S. Mesle, 615 F.3d 1085, 1089 (9th Cir. 2010). To determine “good cause,” a
court must consider the following factors: (1) whether the moving party engaged in culpable
conduct that led to the default; (2) whether the moving party has a meritorious defense; and
(3) whether setting aside the entry of default would prejudice the plaintiff. Id. at 1091; see also
Franchise Holding II, LLC v. Huntington Rests. Grp., Inc., 375 F.3d 922, 926 (9th Cir. 2004).
“This standard, which is the same as is used to determine whether a default judgment should be
set aside under Rule 60(b), is disjunctive, such that a finding that any one of these factors is true
is sufficient reason for the district court to refuse to set aside the default.” Mesle, 615 F.3d
at 1091. Courts must also, however, keep in mind that “judgment by default is a drastic step
appropriate only in extreme circumstances; a case should, whenever possible, be decided on the
merits.” Id. (quoting Falk v. Allen, 739 F.2d 461, 463 (9th Cir.1984)).
Accordingly, the Court informed Plaintiffs that the Court will interpret Defendant’s
motion to dismiss as a motion to set aside the default for good cause and asked Plaintiffs to file a
response addressing the factors identified in Mesle. Plaintiffs filed their response (ECF 59). The
Court analyzes the factors below.
1. Culpable Conduct
“[A] defendant’s conduct is culpable if he has received actual or constructive notice of
the filing of the action and intentionally failed to answer.” Mesle, 615 F.3d at 1092 (emphasis
and alteration in original) (quotation marks omitted). The Court finds that Defendant engaged in
culpable conduct that led to the default being entered against him. Defendant has clearly received
notice—he has filed numerous filings with the Court. But in each of his filings, including the
motion to dismiss the Court is liberally construing here, Defendant refuses to accept the Court’s
jurisdiction, refuses to specifically answer the complaint, and refuses to engage in the litigation
process. Defendant repeatedly threatens Court personnel, including the undersigned Judge and
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the U.S. Marshals, and opposing counsel with lawsuits and liens. Defendant has intentionally
failed to answer.
2. Meritorious Defense
The burden on this element is of a “minimal nature.” Id. at 1094. As the Ninth Circuit in
Mesle explained:
A defendant seeking to vacate a default judgment must present
specific facts that would constitute a defense. But the burden on a
party seeking to vacate a default judgment is not extraordinarily
heavy. All that is necessary to satisfy the “meritorious defense”
requirement is to allege sufficient facts that, if true, would
constitute a defense: the question whether the factual allegation [i]s
true is not to be determined by the court when it decides the
motion to set aside the default. Rather, that question “would be the
subject of the later litigation.”
Id. (quotation marks and citations omitted) (alteration in original).
The Court was expecting that Plaintiffs would provide a response to the relevant facts and
arguments raised in Defendant’s filing relating to this prong of the test. Instead, Plaintiffs
focused only on the irrelevant and sometimes incomprehensible arguments and assertions made
by Defendant in his filing. Plaintiffs ignore the facts and assertions raised by Defendant that
Plaintiffs do not have sufficient evidence that Defendant is the person who infringed on
Plaintiffs’ rights, that their evidence is hearsay, that Plaintiffs fail to establish a claim upon
which relief may be granted, that there is no witness with firsthand knowledge regarding the
alleged infringement, that there is no evidence that can fairly trace the conduct of Defendant to
the alleged injury of Plaintiffs, and that there is no evidence that it was not a third party who
infringed on Plaintiffs’ rights, particularly because this case involves an “open internet site.”
Defendant made all of these assertions under oath.
This factor is a close call. Many of Defendant’s assertions are generalized arguments or
conclusions and not specific facts that would constitute a defense. Defendant does not expressly
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deny downloading or otherwise infringing on Plaintiffs’ motion pictures.1 But Defendant does
assert that his internet site was “open” and that Plaintiffs have no evidence that it was not a third
party, rather than Defendant, who infringed on their copyrighted material. If true, this would
constitute a defense to Plaintiffs’ claims. Defendant also asserts that there is no evidence that can
fairly trace his conduct to Plaintiffs alleged injury. If true, this also might constitute a defense to
Plaintiffs’ claims. Although these allegations are not very extensive, the Ninth Circuit’s focus on
the “minimal nature” of this prong tips the scale in favor of Defendant. Accordingly, this prong
supports setting aside the default.
3. Prejudice
Generally, a plaintiff will not be prejudiced by the setting aside of an entry of default
because a party is not prejudiced by having to litigate a case on the merits. Here, however, the
Court finds that Plaintiffs will be prejudiced. This is because Defendant likely will not litigate
this case on the merits. Defendant has repeatedly stated that he does not accept the jurisdiction of
the Court. This means that it is likely that Defendant will not file an answer or otherwise respond
to Plaintiffs’ Amended Complaint when given yet another opportunity to do so and after another
delay and additional attorney fees, Plaintiffs will again be seeking default. Regardless, because
the three-factor test is in the disjunctive and the Court has found that the second factor supports
setting aside the default, the Court will set aside the default.

1

Plaintiffs argue that Defendant has indicated culpability by conditionally accepting their
claim of infringement in earlier filings with the Court (e.g., ECF 42 at 3). A careful reading of
this “conditional acceptance,” however, shows that Defendant only accepted on the condition
that Plaintiffs have an eye-witness with firsthand knowledge and other very specific items of
proof and without those items of proof, then Plaintiffs are purportedly agreeing to pay Defendant
$1,000,000 plus fees and to drop this lawsuit. Accordingly, the Court does not find that these
“conditional” acceptances indicate any admission or acceptance of responsibility by Defendant.
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CONCLUSION
The Court liberally construes Defendants’ motion to dismiss (ECF 55) as a motion to set
aside the entry of default. This motion is GRANTED. The entry of default (ECF 49) is set aside.
Plaintiffs’ motion for default judgment (ECF 52) is DENIED AS MOOT. Defendant has made
some statements in his motion to dismiss that appear to be denials and affirmative defenses
asserted against Plaintiffs’ Amended Complaint. Defendant must, however, file a new document
in response to Plaintiff’s Amended Complaint (ECF 28)—either an Answer or a motion (such as
a motion to dismiss), that complies with the Federal Rules of Civil Procedure. If Defendant does
not file such a document, then Plaintiffs will again be able to seek an entry of default. The
deadline for Defendant to file such a document is December 8, 2017.
IT IS SO ORDERED.
DATED this 7th day of November, 2017.

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

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