Supragenix v. Garrity

Filing 35

MEMORANDUM DECISION and Order-Unless the court receives, within 14 days of the entry of this order, additional evidentiary materials providing a sufficient factual basis for an amount of damages to be entered, the court will enter the Proposed Default Judgment and Permanent Injunction (Dkt. No. 32-1) as submitted, but excluding paragraph D. The Default Judgment will include an award of attorney fees in the amount of $22,940. Signed by Judge Clark Waddoups on 3/23/16. (jmr)

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION

SUPRAGENIX LLC,
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER
Case No. 2:13-CV-142

JAMES GARRITY, et al.,
Defendants.

District Judge Clark Waddoups
Magistrate Judge Brooke Wells

This matter comes before the court on Plaintiff’s motion for entry of default judgment.
(Dkt. No. 32). In that motion, Plaintiff seeks, among other relief, judgment that it “recover from
the Defendants James Garrity and/or Tech R/X, LLC in the amount of one hundred fifty
thousand dollars ($150,000), plus post judgment interest pursuant to 28 U.S.C. 1961 as statutory
damages for willful copyright infringement by Defendants of Plaintiff’s copyrighted Works.”
(Dkt. No. 32-1, p. 2).
In response to Plaintiff’s motion, the court ordered supplemental briefing as to the issue
of statutory damages. Specifically, the court requested that Plaintiff address the court’s ability to
award statutory damages in the amount of $150,000 where a plaintiff is entitled to default
judgment as a sanction for discovery abuses but there has been no finding of willful
infringement. (Dkt. No. 33). Plaintiff submitted a supplemental brief in which it contends it has
established willful infringement because the facts alleged in the Amended Complaint
(Dkt. No. 5) should be deemed admitted and the court should deem as established any facts for
which discovery—in the form of interrogatories and requests for production of documents—was
sought and to which Defendants did not respond. (Dkt. No. 34). The court is not persuaded.

First, the court is not convinced that it must take the facts in the Amended Complaint as
true in this case. Here, the court has determined that Plaintiff is entitled default judgment as a
sanction for a discovery abuses, not for Defendant’s failure to answer the Amended Complaint.
Cf. Fed. R. Civ. P. 8(b)(6) (“An allegation—other than one relating to the amount of damages—
is admitted if a responsive pleading is required and the allegation is not denied.” (emphasis
added)).1 To the contrary, Defendants answered the Amended Complaint and specifically denied
any allegations that they infringed on Plaintiff’s copyright, willfully or otherwise. (Dkt. No. 10).
Significantly, Plaintiff cites no persuasive authority in support of its argument that it would be
appropriate to treat its allegations as deemed admitted under these circumstances. Cf. Salba
Corp. v. X Factor Holdings, LLC, No. 12-CV-01306-REB-KLM, 2015 WL 5676690, at *2 (D.
Colo. Sept. 28, 2015) (citing Rule 8, not Rule 37, in deeming as admitted allegations in a
complaint). Plaintiff’s failure to cite persuasive authority supporting its position “suggests either
that there is no authority to sustain its position or that it expects the court to do its research.”
Rapid Transit Lines, Inc. v. Wichita Developers, Inc., 435 F.2d 850, 852 (10th Cir. 1970).2
Second, the court does not find a sufficient basis to make a finding of willfulness when it
considers the potential evidence that would have been within the scope of Plaintiff’s discovery
requests. To the contrary, Plaintiffs do not cite any designated facts regarding willfulness that the
court should take as established, nor do they present any specific arguments or evidence that
Defendants should be precluded from offering because of their failure to participate in discovery.
See Fed. R. Civ. P. 37(b)(2)(A)(i),(ii) (providing that as a sanction for failure to obey a discovery
1

A court may strike an answer as a sanction, see Fed. R. Civ. P. 37(b)(2)(A)(iii), potentially permitting the
court to then accept a plaintiff’s well-pleaded allegations as true under Rule 8(b)(6). But Plaintiff has not requested
the court strike Defendants’ Answer. Thus, the court finds that Rule 8(b)(6) is inapplicable.
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The court notes that although Plaintiff argues that the Amended Complaint sets forth facts sufficient to
enter a finding of multiple instances of willful infringement, it fails to identify any specific allegations in the
Amended Complaint. (See Dkt. No. 34). The court is under no obligation to comb through the Amended Complaint
to find the facts necessary to support Plaintiff’s position regarding willfulness.

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order, the court may “direct that the matters embraced in the order or other designated facts be
taken as established for purposes of the action, as the prevailing party claims” or “prohibit[] the
disobedient party from supporting or opposing designated claims or defenses, or from
introducing designated matters in evidence” (emphasis added)). And Plaintiff’s discovery
requests are not sufficiently targeted at evidence that would permit the court to make a finding of
willfulness, even if the court treats as established those facts that would fall within their scope.
For instance, Plaintiff’s interrogatories ask for disclosure of the identities of individuals
who have been involved in the creation of, or have ownership interest in, the allegedly infringing
products and websites (Interrogatories Nos. 1–4, 6), Defendants’ monthly sales (Interrogatory
No. 5), the basis for Defendant’s affirmative defenses (Interrogatory No. 7), and the identities of
the persons who assisted in the preparation of the interrogatory responses (Interrogatory No. 8).
(Dkt. No. 16-2). The court fails to see how any information related to these requests would be
probative evidence of willfulness.3 Plaintiff’s requests for production are similarly insufficient.
For example, Plaintiff broadly requests “documents and things” that support Defendants’
contention that they do not infringe on Plaintiff’s copyrights (Request for Production No. 1), all
documents related to any opinion of counsel related to possible copyright infringement (Request
for Production No. 18), all advertisements or marketing plans of the allegedly infringing product
and the identities of individuals involved in its advertisement or marketing (Request for
Production Nos. 20–21, 32), and documentation relating to various allegedly infringing websites
(Request for Production Nos. 22, 36–39). (Dkt. No. 16-3). There is nothing to suggest responses
to these requests would have revealed evidence of willfulness. Indeed, beyond providing a string
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The court is puzzled by Plaintiff’s citation to Interrogatory No. 9 in support of its argument that
Defendants acted willfully. (See Dkt. No. 34, p. 3 (“Plaintiff’s discovery requests included requests specifically
related to the multiple instances of copyright infringement by Defendants, including Interrogatory No. 9 (Docket
No. 16, Attachment 2).”). The court has reviewed Dkt. No. 16-2, which does not contain an Interrogatory No. 9. It
contains only Interrogatories Nos. 1 through 8 identified above. As explained, these interrogatories do not support a
finding of willful infringement.

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citation to these requests for production, Plaintiff does not explain how any of these requests are
relevant to this issue.
For these reasons, the court finds that Plaintiff has not met its burden to show willful
infringement. Accordingly, the court declines to award Plaintiff $150,000 in statutory damages.
See 17 U.S.C. § 504(c)(2) (“In a case where the copyright owner sustains the burden of proving,
and the court finds, that infringement was committed willfully, the court in its discretion may
increase the award of statutory damages to a sum of not more than $150,000.”). Should Plaintiff
wish to pursue actual damages or other damages as proscribed by statute, see § 504(a)–(b),
(c)(1), the court remains receptive to an evidentiary submission supporting such a damage award.
Unless the court receives, within 14 days of the entry of this order, additional evidentiary
materials providing a sufficient factual basis for an amount of damages to be entered, the court
will enter the Proposed Default Judgment and Permanent Injunction (Dkt. No. 32-1) as
submitted, but excluding paragraph D. The Default Judgment will include an award of attorney
fees in the amount of $22,940.
SO ORDERED this 23rd of March, 2016.
BY THE COURT:
______________________________
Clark Waddoups
United States District Court Judge

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