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Teller v. Dogge

United States District Court, D. Nevada

September 30, 2014

TELLER. an individual, Plaintiff(s),
v.
GERARD DOGGE (p/k/a Gerard Bakardy), an individual, Defendant(s)

JAMES C. MAHAN, District Judge.

Presently before the court is plaintiff Teller's motions for default judgment (doc. #228) and permanent injunction (doc. #229) against pro se defendant Dogge. Defendant filed a response (doc. #230), and plaintiff filed a reply (doc. #231).

I. Background The instant action is a suit by plaintiff, a world-renowned magician, against defendant, a

Dutch performer who created two YouTube videos in which he performed a magic trick strikingly similar to one of plaintiff's signature illusions, and offered to sell "A Double illusion for the price of One'!!" ( See doc. #1). Defendant also marketed for sale a rose flower prop of his own design.

The illusion, "Shadows, " has been an integral part of Teller's act for over three decades.[1] Defendant's similar illusion is called "The Rose and Her Shadow." To allow individuals to locate his videos using YouTube's search functions, defendant tagged the videos with keywords including "Penn" and "Teller."[2]

Plaintiff brought claims for copyright infringement under the Copyright Act and unfair competition under the Lanham Act. ( See doc. #1). The case has persisted for more than two years, due in part to defendant's refusal to cooperate in the litigation process and failure to comply with court orders.

On March 20, 2014, this court granted Teller's motion for summary judgment on the issue of liability for copyright infringement. (Doc. #184). Construing defendant's pro se arguments liberally, the court held, however, that defendant Dogge raised a genuine issue of fact as to whether he willfully infringed upon Teller's copyright. ( See id. ). Therefore, the court denied summary judgment on the issue of damages for copyright infringement. ( See id. ) The court also denied summary judgment on Teller's unfair competition claim. ( See id. ).

On July 9, 2014, the court adopted the magistrate judge's report and recommendation to impose sanctions under Federal Rules of Civil Procedure 16 and 37 on defendant for failing to participate in required pretrial procedures and refusing to physically attend trial. ( See doc. # 225). Plaintiff now seeks default judgment on his willful infringement and unfair competition claims against defendant. Plaintiff also seeks permanent injunctive relief and attorneys' fees and costs.

II. Discussion

A. Default Judgment

Default judgment is appropriate "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..." Fed.R.Civ.P. 55(a). Federal Rule of Civil Procedure 55(b)(2) provides that "a court may enter a default judgment after the party seeking default applies to the clerk of the court as required by subsection (a) of this rule." Fed.R.Civ.P. 55(b)(2).

Obtaining a default judgment entails two steps: "first, the party seeking a default judgment must file a motion for entry of default with the clerk of a district court by demonstrating that the opposing party has failed to answer or otherwise respond to the complaint, and, second, once the clerk has entered a default, the moving party may then seek entry of a default judgment against the defaulting party." See UMG Recordings, Inc. v. Stewart, 461 F.Supp.2d 837, 840 (S.D. Ill. 2006). Where a party has not been properly served, there is no basis for a court to enter default judgment. See Fairly v. Potter, 2003 WL 402261, *4 (N.D. Cal. 2003).

Plaintiff has properly complied with Rule 55. ( See docs. #226, 228). Plaintiff now asks the court to enter default judgment against defendant under Federal Rule of Civil Procedure 55(b)(2).

The choice whether to enter a default judgment lies within the discretion of the trial court. Aldabe v. Aldabe, 616 F.3d 1089, 1092 (9th Cir. 1980). In the determination of whether to grant a default judgment, the trial court should consider the seven factors articulated in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). These factors are: (1) the possibility of prejudice to plaintiff, (2) the merits of the claims, (3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility of a dispute concerning material facts, (6) whether default was due to excusable neglect, and (7) the policy favoring a decision on the merits. Id. In applying these Eitel factors, "factual allegations of the complaint, except those relating to the amount of damages, will be taken as true." Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); see Fed.R.Civ.P. 8(d).

The first Eitel factor weighs in favor of granting plaintiff's motion for default judgment. Plaintiff will be prejudiced because he will not be allowed to litigate his claims. See Adobe Sys. Inc. v. Marmeletos, 2009 WL 1034143 at *3 (N.D. Cal. Apr. 16, 2009). Defendant's response cites no legal authority. The majority of defendant's "legal argument" is dedicated to soliloquys on issues irrelevant to the case, such as how the United States court system is inferior to the system in his native country. Defendant shows no respect for this court and no intention of attending trial, complying with any court orders, or cooperating in any way to help resolve the case. Therefore, if plaintiff's motion for default judgment is not granted, plaintiff "will likely be without other recourse for recovery." PepsiCo, Inc. v. Cal. Security Cans, 283 F.Supp.2d 1127, 1177 (C.D. Cal. 2002).

The second and third Eitel factors weigh in favor of default judgment. Plaintiff's complaint states plausible claims for relief for willful copyright infringement and unfair competition. ( See doc. #1). Further, plaintiff's complaint is well pleaded as it identifies defendant, enumerates plaintiff's rights under the Lanham and Copyright Acts, describes the steps defendant took to infringe upon these rights, and sets forth causes of action for defendant's conduct. ( See id. )

Under the fourth Eitel factor, the court considers the amount of money at stake in relation to the seriousness of defendant's conduct. See Cal. Security Cans, 238 F.Supp.2d at 1176. "This requires that the court assess whether the recovery sought is proportional to the harm caused by defendant's conduct." Trs. of Plumbers & Pipefitters Union Local 525 Health & Welfare Trust & Plan v. T.E.N. Mech. Corp., No. 2:10-cv-02258-RLH-NJK, 2013 WL 1249600 (D. Nev. March 27, 2013) (quoting Landstar Ranger, Inc. v. Parth Enter., Inc., 725 F.Supp.2d 916, 921 (N.D. Cal. 2010)). The sum of money sought is large: more than $1.1 million.[3] ( See doc. #228). The relief sought is appropriate under 17 U.S.C. §§ 504-05[4] and 15 U.S.C § 1117[5] and the amount is commensurate with the seriousness of defendant's deliberate misconduct. Because plaintiff demonstrates a basis for his requested monetary relief, this factor weighs in favor of granting default judgment.

The fifth Eitel factor also favors default judgment. "Once the court clerk enters a default, the well-pleaded factual allegations of the complaint are taken as true, except for those allegations relating to damages." Geddes, 559 F.2d at 560. Given the sufficiency of the complaint, including evidence of plaintiff's copyright registration, known celebrity persona, defendant's willful infringement, and defendant's default, "no genuine dispute of material facts would preclude granting [plaintiff's] motion." Cal. Security Cans, 238 F.Supp.2d at 1177.

Applying the sixth factor, the court cannot conclude that defendant's default is due to excusable neglect. Despite defendant's best efforts to avoid service of process, which necessitated plaintiff's filing of an emergency motion to extend time for service, and a motion for service by publication, plaintiff properly served defendant with summons and the complaint. Defendant's efforts to evade service, and failures to respond, to appear in person, and to litigate this case cannot be attributable to excusable neglect. United States v. High Country Broad. Co., Inc., 3 F.3d 1244, 1245 (9th Cir. 1993) (holding that it was "perfectly appropriate" for the district court to enter default judgment against a corporation that failed to appear in the action through licensed counsel). This factor weighs in favor of default judgment.

The final Eitel factor weighs against default judgment. "Cases should be decided upon their merits whenever reasonably possible." Eitel, 782 F.2d at 1472. But the mere existence of Rule 55(b) "indicates that this preference, standing alone, is not dispositive." Cal. Sec. Cans, 238 F.Supp. at 1177 (citation omitted). Moreover, defendant's failure to comply with court ...


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