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Inc v. Santiago

United States District Court, D. Nevada

March 26, 2018

ME2 PRODUCTIONS, INC., Plaintiffs,
v.
CRUZ SANTIAGO, Defendants.

          ORDER

         Presently 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.

         Also before the court is plaintiff's motion for default judgment against defendant Martha Leiva. (ECF No. 36).

         I. Facts

         This is 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, 2017).

         On 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).

         II. Legal Standard

         Obtaining 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.”

         The 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).

         III. Discussion

         As an 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 moot.

         Plaintiff 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).

         On June 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.

         The 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 recovery.”).

         The second and third Eitel factors favor plaintiff in this case. Plaintiff's complaint adequately alleges plaintiff's copyright ...


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