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Inc. v. Ulloa

United States District Court, D. Nevada

April 3, 2018

ME2 PRODUCTIONS, INC., Plaintiff(s),
LORENA ULLOA, et al., Defendant(s).


         Presently before the court is plaintiff ME2 Productions, Inc.'s motion for default judgment against defendant Lorena Ulloa. (ECF No. 37).

         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 BitTorrent 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 16, 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 Ulloa. (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

         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 $4, 980. (ECF No. 37).

         On August 31, 2017, plaintiff filed a motion for entry of clerk's default as to defendant Ulloa (ECF No. 33), and on November 16, 2017, the clerk entered default, (ECF No. 36). 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. v. Pausa Records, Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (quoting Harris v. Emus Records Corp., 738 F.2d 1329, 1335 (9th Cir. 1984)).

         Given defendant's numerous opportunities to respond to plaintiff's demand letters or otherwise appear in the action, coupled with plaintiff's unopposed allegations that the court takes as true, the court holds defendant willfully infringed on plaintiff's copyright. However, similarly to another court in this district, [1] the court holds that an award of $15, 000 would severely overcompensate plaintiff and unduly punish defendant for the conduct at issue here. The court will exercise its discretion and award statutory damages in the amount of $1, 500. See Peer, 909 F.2d at 1336. This award will adequately protect ...

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