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Criminal Productions, Inc. v. Jenkins

United States District Court, D. Nevada

March 29, 2018

CRIMINAL PRODUCTIONS, INC., Plaintiffs,
v.
MARIA JENKINS, et al., Defendants.

          ORDER

         Presently before the court is defendant Kimberly Crawford's motion to dismiss. (ECF No. 16). Plaintiff Criminal Productions, Inc. filed a response (ECF No. 24), to which defendant replied (ECF No. 25).

         Also before the court is plaintiff's motion for default judgment against defendants Joseph Smith and Raimond Perez. (ECF No. 49).

         Also before the court is defendant Tracy Cordoba's motion for attorney's fees. (ECF No. 51). Plaintiff filed a response (ECF No. 55), to which Cordoba replied (ECF No. 56).

         Also before the court is plaintiff's motion for a hearing regarding defendant's motion for attorney's fees. (ECF No. 57).

         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 27, 2017, plaintiff amended its complaint to personally name the identified defendants. (ECF No. 10). Defendant Smith was served on May 3, 2017, and defendant Perez was served on May 7, 2017.[1](ECF Nos. 19, 20). Neither Smith nor Perez have appeared in this action.

         II. Legal Standard

         a. Default judgment

         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).

         b. Attorney's fees and costs

         In copyright cases “the court may . . . award a reasonable attorney's fee to the prevailing party as part of the costs.” 17 U.S.C. § 505. The prevailing party may also recover costs related to prosecuting or defending the action. Id.

         III. Discussion

         As an initial matter, the court will deny defendant Crawford's motion to dismiss as moot. Plaintiff filed a notice of voluntary dismissal of defendant Crawford, (ECF No. 45), and the clerk's office subsequently terminated defendant Crawford from the litigation. Accordingly, defendant Crawford's motion to dismiss is moot.

         a. Plaintiff's motion for default judgment

         Plaintiff requests the court enter default judgment against defendants as follows: $15, 000 per defendant in statutory damages; a permanent injunction against each defendant; and attorney's fees and costs in the amount of $8, 547.50. (ECF No. 49).

         On July 26, 2017, plaintiff filed a motion for entry of clerk's default as to defendants Smith and Perez (ECF No. 28), and the clerk subsequently entered default, (ECF No. 29). 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. Defendants have 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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