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Inc. v. Soisoongnoen

United States District Court, D. Nevada

March 26, 2018

ME2 PRODUCTIONS, INC., Plaintiff(s),
v.
SHANNON SOISOONGNOEN, et al., Defendant(s).

          ORDER

         Presently before the court is plaintiff's first motion for default judgment against defendant Shannon Soisoongnoen.[1] (ECF No. 39).

         Also before the court is plaintiff's second motion for default judgment against defendant Shannon Soisoongnoen. (ECF No. 35).

         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 Bit Torrent 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 7, 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 Soisoongnoen. (ECF No. 40). On August 7, 2017, Plaintiff brought its motion for default judgment against defendant Soisoongnoen, who is yet to appear in this action. (ECF Nos. 35).

         On October 2, 2017, plaintiff filed a subsequent motion for default judgment that includes an upDated:torney's fee amount. (ECF No. 39). Otherwise, the second motion for default judgment is identical to the first motion filed on August 7, 2017 (ECF No. 35).

         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 plaintiff's initial motion for default judgment as moot (ECF No. 35), as plaintiff filed a subsequent motion for default judgment (ECF No. 39) that is identical to first, except for an updated attorney's fee figure.

         Additionally, while plaintiff's motions request the court enter default judgment against defendants Shannon Soisoongnoen, John Schwarz, Karin Fee, and Edgar Lozano Paez, Magistrate Judge Koppe recommended dismissal of all defendants except for Shannon Soisoongnoen. (ECF No. 23). As this court adopted Magistrate Judge Koppe's report and recommendation (ECF No. 40) subsequent to plaintiff's filings on November 7, 2017, the court will ignore the inclusion of John Schwarz, Karin Fee, and Edgar Lozano Paez by plaintiff in the instant motion. This order applies to Shannon Soisoongnoen only.

         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 $5, 470. (ECF No. 39).

         On August 4, 2017, plaintiff filed a motion for entry of clerk's default as to defendant Soisoongnoen (ECF No. 32), and the clerk subsequently entered default on August 7, 2017, (ECF No. 33). Therefore, plaintiff ...


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