United States District Court, D. Nevada
before the court is plaintiff ME2 Productions, Inc.'s
motion for default judgment against defendant Brian Davis.
(ECF No. 35).
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,
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 Davis.
(ECF No. 33).
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 $4, 717.50. (ECF No. 35).
23, 2017, plaintiff filed a motion for entry of clerk's
default as to defendant Davis (ECF No. 30), and on November
7, 2017, the clerk entered default, (ECF No. 34). 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
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