United States District Court, D. Nevada
before the court is defendant Cruz Santiago's motion to
dismiss. (ECF No. 23). Plaintiff ME2 Productions, Inc. filed
a response (ECF No. 25). Defendant has not filed a reply, and
the time for doing so has since passed.
before the court is plaintiff's motion for default
judgment against defendant Martha Leiva. (ECF No. 36).
one of several similar cases originally filed by plaintiff
against numerous unidentified Doe defendants for infringing
its copyright in the film “Mechanic 2:
Resurrection” by using BitTorrent software. For a more
detailed explanation of the background to these cases,
see ME2 Productions, Inc. v. Bayu, no
2:17-cv-00724-JCM-NJK, 2017 WL 5165487 (D. Nev. Nov. 7,
November 15, 2017, the court adopted in part Magistrate Judge
Koppe's report and recommendation that all but the
first-named plaintiff be severed and dismissed from the case,
thereby dismissing all defendants except for defendant Leiva.
(ECF No. 34). Thereafter, plaintiff brought its motion for
default judgment against defendant Leiva, who is yet to
appear in this action. (ECF No. 36).
a default judgment is a two-step process. Eitel v.
McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). First,
“[w]hen 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, the clerk
must enter the party's default.” 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.”
choice whether to enter a default judgment lies within the
discretion of the court. Aldabe v. Aldabe, 616 F.3d
1089, 1092 (9th Cir. 1980). In the determination of whether
to grant a default judgment, the court should consider the
seven factors set forth in Eitel: (1) the
possibility of prejudice to plaintiff if default judgment is
not entered; (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. 782 F.2d at
1471-72. In applying the Eitel factors, “the
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 also Fed. R. Civ. P. 8(d).
initial matter, the court will deny defendant Santiago's
motion to dismiss as moot. On November 15, 2017, the court
entered an order adopting in part Magistrate Judge
Koppe's report and recommendation that all but the first
named defendant (Leiva) be severed and dismissed from this
lawsuit. (ECF No. 34). Therefore, as defendant Santiago is no
longer a party to this litigation, his motion to dismiss is
requests the court enter default judgment against defendant
as follows: $15, 000 in statutory damages; a permanent
injunction against defendant; and attorney's fees and
costs in the amount of $4, 867.50. (ECF No. 36).
22, 2017, plaintiff filed a motion for entry of clerk's
default as to defendant Leiva (ECF No. 30), and on November
22, 2017, the clerk entered default, (ECF No. 35). Therefore,
plaintiff has satisfied subsection (a) of Federal Rule of
Civil Procedure 55.
first Eitel factor weighs in favor of default
judgment in this case. Defendant has failed to respond or
appear in the case, which prejudices plaintiff's ability
to pursue its claims on the merits and seek recovery of
damages. See PepsiCo, Inc. v. Cal. Sec. Cans, 238
F.Supp.2d 1172, 1177 (C.D. Cal 2002) (“Potential
prejudice to Plaintiffs favors granting a default judgment.
If Plaintiffs' motion for default judgment is not
granted, Plaintiffs will likely be without other recourse for
second and third Eitel factors favor plaintiff in
this case. Plaintiff's complaint adequately alleges
plaintiff's copyright ...