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Criminal Productions, Inc. v. Saldivar

United States District Court, D. Nevada

March 26, 2018

CRIMINAL PRODUCTIONS, INC., Plaintiffs,
v.
GABRIELLA SALDIVAR, Defendants.

          ORDER

         Presently before the court is plaintiff Criminal Productions, Inc.'s motion for default judgment against defendant Gabriela Saldivar. (ECF No. 18).

         I. Facts

         Plaintiff produced the motion picture “Criminal.” (ECF No. 1). Upon discovering that the motion picture had been unlawfully disseminated over BitTorrent networks and shared amongst numerous users, plaintiff took steps to protect its intellectual property. Id. Plaintiff engaged the services of a forensic investigator, MaverickEye, to identify the most serious infringers. Id. Plaintiff separated these infringers into small groups of ten to thirty people who shared the same digital file over the same peer-to-peer file sharing network. Id. Prior to filing suit, plaintiff consulted an independent third-party consultant to verify the accuracy of the information. Id.

         Plaintiff filed the present case against sixteen Doe defendants, originally identified by their IP addresses. Id. After conducting discovery to obtain names and contact information for the IP addresses, plaintiff sent demand letters to the identified defendants. Id. On March 2, 2017, plaintiff amended its complaint to personally name the identified defendants. (ECF No. 7). Defendant Saldivar was served on May 1, 2017. (ECF No. 10). Saldivar has not appeared in this action.

         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

         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 $3, 367.50. (ECF No. 18).

         On June 23, 2017, plaintiff filed a motion for entry of clerk's default as to defendant Saldivar (ECF No. 14), and on June 26, 2017, the clerk entered default, (ECF No. 15). 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 infringement claims. See Eitel, 782 F.2d at 1471.

         The fourth Eitel factor, which compares the amount of money at stake to the seriousness of defendant's conduct, supports a default judgment in favor of plaintiff. “If the sum of money at issue is reasonably proportionate to the harm caused by the defendant's actions, then default judgment is warranted.” Landstar Ranger, Inc. v. Parth Enter., Inc., 725 F.Supp.2d 916, 921 (N.D. Cal. 2010).

         For statutory damages, plaintiff requests $15, 000 under 17 U.S.C. § 504(c). The statute sets a $750 minimum and $30, 000 maximum award for damages in copyright infringement cases. 17 U.S.C. § 504(c)(1). The maximum increases to $150, 000 when the infringement was willful. 17 U.S.C. § 504(c)(2). Courts have “wide discretion in determining the amount of statutory damages to be awarded, constrained only by the specified maxima and minima.” Peer Int'l Corp. ...


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