United States District Court, D. Nevada
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).
before the court is plaintiff's motion for default
judgment against defendants Joseph Smith and Raimond Perez.
(ECF No. 49).
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).
before the court is plaintiff's motion for a hearing
regarding defendant's motion for attorney's fees.
(ECF No. 57).
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
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.(ECF Nos. 19, 20). Neither Smith nor Perez
have 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).
Attorney's fees and costs
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
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.
Plaintiff's motion for default judgment
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).
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.
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
second and third Eitel factors favor plaintiff in
this case. Plaintiff's complaint adequately alleges
plaintiff's copyright ...