United States District Court, D. Nevada
before the court is plaintiff Criminal Productions,
Inc.'s motion for default judgment against defendant
Gabriela Saldivar. (ECF No. 18).
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.
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.
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).
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).
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.
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 infringement claims. See
Eitel, 782 F.2d at 1471.
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.
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. ...