United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge.
Automata Productions, Inc. (“Automata”), Survivor
Productions, Inc., Before I Go Productions, Inc., LHF
Productions, Inc., PTG Nevada LLC, and Clear Skies Nevada,
LLC, bring this action against Defendant Stephane Henry
Bertinetti. Plaintiffs allege that Defendant copied and
distributed each of Plaintiffs' six motion pictures
through a public BitTorrent network in violation of
Plaintiffs' exclusive rights under the Copyright Act.
Before the Court is Plaintiffs' motion for entry of
default judgment under Federal Rule of Civil Procedure 55(b).
For the following reasons, the Court grants Plaintiffs'
motion, and will enter a default judgment against Defendant
in the amount of $4, 500, along with injunctive relief.
Federal Rule of Civil Procedure 55(a), the Clerk of the Court
is required to enter an order of default if a party against
whom affirmative relief is sought fails timely to answer or
otherwise defend an action. Fed.R.Civ.P. 55(a) (“When 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.”). Upon the entry of
default, the Court accepts “the well-pleaded factual
allegations” of the complaint “as true.”
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th
Cir. 2007) (quoting Cripps v. Life Ins. Co. of N.
Am., 980 F.2d 1261, 1267 (9th Cir. 1992)); see also
Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir.
1977). The court, however, does not accept as admitted facts
that are not well-pleaded, conclusions of law, or facts
relating to the amount of damages. DIRECTV, 503 F.3d
at 854; Geddes, 559 F.2d at 560; see also Derek
Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702
(9th Cir. 2008) (“‘The general rule of law is
that upon default the factual allegations of the complaint,
except those relating to the amount of damages, will be taken
as true.'” (quoting TeleVideo Sys., Inc. v.
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987))).
default has been entered against a defendant, a court may
enter a default judgment against that defendant. See
Fed. R. Civ. P. 55(b). “The district court's
decision whether to enter a default judgment is a
discretionary one.” Aldabe v. Aldabe, 616 F.2d
1089, 1092 (9th Cir. 1980); see also Dreith v. Nu Image,
Inc., 648 F.3d 779, 786 (9th Cir. 2011) (noting that a
district's court decision whether to enter a default
judgment is reviewed for abuse of discretion). In Eitel
v. McCool, 782 F.2d 1470 (9th Cir. 1986), the Ninth
Circuit set out factors to guide a district court's
consideration of whether to enter a default judgment. See
DIRECTV , 503 F.3d at 852 (noting that Eitel
“set out factors to guide district court's
determination regarding the appropriateness of granting a
Ninth Circuit in Eitel held:
Factors which may be considered by courts in exercising
discretion as to the entry of a default judgment include: (1)
the possibility of prejudice to the plaintiff, (2) the merits
of plaintiff's substantive claim, (3) the sufficiency of
the complaint, (4) the sum of money at stake in the action;
(5) the possibility of a dispute concerning material facts;
(6) whether the default was due to excusable neglect, and (7)
the strong policy underlying the Federal Rules of Civil
Procedure favoring decisions on the merits.
Eitel, 782 F.2d at 1471-72 (punctuation in
original). The “starting point” of the
court's analysis, however, “is the general rule
that default judgments are ordinarily disfavored.”
Id. at 1472.
in 2014, counsel for Plaintiffs has filed hundreds of cases
in this District asserting that Doe defendants, originally
identified only by their Internet Protocol (“IP”)
addresses, violated the Copyright Act by downloading movies
on the internet using a peer-to-peer BitTorrent file sharing
protocol. On June 14, 2016, Plaintiff Automata filed its
complaint in this case, identifying a doe defendant IP
address as a person who illegally downloaded Automata's
motion picture using the BitTorrent network, among many other
motion pictures. Plaintiff Automata then identified Stephane
Henry Bertinetti as the subscriber associated with the
infringing IP address 126.96.36.199. Mr. Bertinetti is a
citizen of France, purportedly residing in Portland, Oregon.
September 5, 2016, Plaintiff Automata filed an amended
complaint, naming Mr. Bertinetti as the defendant and joining
the additional plaintiffs. Mr. Bertinetti was served through
substitute service by leaving a copy of the Summons and
Amended Complaint at his purported residence with a person
over the age of 14 and by mailing a copy. After doing so, Mr.
Bertinetti's roommate reported that MR. Bertinetti had
left the country. Plaintiffs then moved the Court to deem
service proper, and the Court granted the motion.
moved for an order of default, and emailed Defendant a copy
of that motion. Although Defendant did not respond to the
motion or otherwise appear before the Court, he did respond
via email to Plaintiffs' counsel, asserting that he lived
in France. ECF 18-1. According to an online analytical
resource used by Plaintiffs, Defendant's email was sent
from the United States. ECF 18-3.
Court issued an Order of Default on November 28, 2016. On
January 2, 2017, Plaintiffs filed a motion for default
judgment. The Court then appointed pro bono counsel to
represent Defendant. Pro bono counsel sought termination of
the appointment because communication could not be