ME2 Productions v. Does 1-22

Filing 81

MEMORANDUM DECISION AND ORDER granting in part and denying in part 74 Motion for Default Judgment: any motion for attorney's fees must be filed within 14 days after the default judgment's entry. Signed by Judge David Nuffer on 1/11/21 (alt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH
ME2 PRODUCTIONS, INC.
Plaintiff,
v.
JAMES BROWER, et al.,
Defendants.

MEMORANDUM DECISION
AND ORDER GRANTING IN PART
AND DENYING IN PART MOTION
FOR DEFAULT JUDGMENT
Case No. 2:17-cv-00200-DN
District Judge David Nuffer

Plaintiff ME2 Productions, Inc. filed a motion for entry of default judgment, a permanent
injunction, and an award of attorney’s fees against Defendants Angela Rivera (“Rivera”),
Stephanie Washington (“Washington”), and James Brower (“Brower”) (the “Motion”). 1
Specifically, Plaintiff seeks an award of $10,000 in statutory damages against each Defendant; a
permanent injunction enjoining each Defendant from directly or indirectly infringing Plaintiff’s
copyright in the motion picture Mechanic: Resurrection; and an award of costs and attorney’s
fees. 2
An order granting the Motion as to Rivera and Washington was previously entered. 3 The
motion was denied without prejudice as to Brower because the Clerk’s Entry of Default
Certificate that was mailed to him was returned as undeliverable. 4 Plaintiff was instructed in the

Plaintiff’s Motion for Default Judgment, Permanent Injunction and Attorney’s Fees as to Certain Defendants
(“Motion”), docket no. 74, filed August 6, 2020.

1

2

Id. at 2.

Memorandum Decision and Order Granting in Part and Denying in Part Motion for Default Judgment, docket no.
79, filed Dec. 4, 2020.

3

4

Id.

order to verify a current address for Brower and file a Notice of Change of Address on or before
December 17, 2020. 5 Plaintiff did not file a Notice of Change of Address by the identified date.
The Court has reconsidered the portion of the December 4 Order requiring Plaintiff to
find Brower’s new address. It is not Plaintiff’s burden to update a defendant’s address whenever
that party moves. Brower was served with the complaint, failed to appear and respond, and
default has entered. Brower, having been properly served, cannot escape entry of default
judgment by moving.
Plaintiff’s counsel in this case is the same as the plaintiff’s counsel in LHF Productions,
Inc. v. Gonzales et al., No. 2:17-cv-00103-DN (D. Utah). A complaint 6 and motion for default
judgment 7 were filed in Gonzales, which are substantively identical to those filed in this case. 8
The only relevant differences are: the named Plaintiff; the copyrighted work; the named
Defendants; and the Defendants against whom default judgment is sought.
On October 28, 2020, a Memorandum Decision and Order Granting in Part and Denying
in Part Motion for Default Judgment was entered in Gonzales (“Gonzales Memorandum
Decision and Order”). 9 Because this case and Gonzales are substantively identical, the Gonzales
Memorandum Decisions and Order’s analysis, findings of fact, and conclusions of law 10 are
adopted in total and apply to Plaintiff’s Motion in this case.

5

Id.

6

Amended Complaint for Copyright Infringement and Jury Demand, ECF No. 81 in Gonzales, filed June 20, 2019.

Plaintiff’s Motion for Default Judgment Permanent Injunction and Attorney’s Fees as to Certain Defendants, ECF
No. 96, filed June 29, 2020.

7

Amended Complaint for Copyright Infringement and Jury Demand, docket no. 68, filed June 17, 2019; Motion,
docket no. 74, filed August 6, 2020.

8

9

ECF No. 101 in Gonzales, filed Oct. 28, 2020 (“Gonzales Memorandum Decision and Order”).

10

Id. at 2-25.

2

Brower was served 11 with Plaintiff’s Complaint; failed to timely appear and respond; and
the Clerk has entered his default. 12 Additionally, the factual allegations of Plaintiff’s Complaint,
which are deemed admitted, 13 demonstrate that Brower is liable for willfully infringing 14
Plaintiff’s copyright in the motion picture Mechanic: Resurrection through use of BitTorrent
protocols over the Internet.
Therefore, Plaintiff is entitled to entry of a default judgment against Brower, which
includes an award of statutory damages 15 and a permanent injunction 16 enjoining Brower from
directly or indirectly infringing Plaintiff’s copyright. Plaintiff is also entitled to an award of its
costs and reasonable attorney’s fees. 17 But because an award of $750 in statutory damages
against Brower is just under the circumstances, 18 rather than the $10,000 requested, Plaintiff’s
Motion 19 is GRANTED in part and DENIED in part as to Brower.
This Order does not modify the December 4 Order, other than as stated above.
ORDER
IT IS HEREBY ORDERED that Plaintiff’s Motion 20 is GRANTED in part and DENIED
in part.

11

Affidavit of Service, docket no. 70, filed June 9, 2020.

Entry of Default Pursuant to FRCP 55(a) as to Certain Defendants, docket no. 73, filed July 31, 2020. The
certificate of default for Defendant James Brower was mailed to him and returned as undeliverable.

12

13

Tripodi v. Welch, 810 F.3d 761, 764-65 (10th Cir. 2016).

14

17 U.S.C. §§ 411(a), 501; La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177-1180 (10th Cir. 2009).

15

17 U.S.C. § 504(c).

16

Id. § 502(a).

17

Id. § 505.

18

Gonzales Memorandum Decision and Order at 4-25.

19

Motion, docket no. 74, filed August 6, 2020.

20

Motion, docket no. 74, filed August 6, 2020.

3

Default judgment shall enter in favor of Plaintiff and against Defendant James Brower.
The default judgment shall include an award to Plaintiff of $750 in statutory damages and a
permanent injunction enjoining Defendant James Brower from directly or indirectly infringing
Plaintiff’s copyright in the motion picture Mechanic: Resurrection. Plaintiff is also entitled to an
award of its costs and reasonable attorney’s fees, the amount of which shall be determined by
subsequent motion.
IT IS FURTHER ORDERED that any motion for attorney’s fees must be filed within 14
days after the default judgement’s entry.
Signed January 11, 2021.
BY THE COURT
________________________________________
David Nuffer
United States District Judge

4