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Automata Productions, Inc. v. Bertinetti

United States District Court, D. Oregon

March 14, 2017

AUTOMATA PRODUCTIONS, INC., et al., Plaintiffs,


          Michael H. Simon United States District Judge.

         Plaintiffs 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.


         Under 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))).

         After 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 default judgment”).

         The 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.


         Beginning 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 Mr. Bertinetti is a citizen of France, purportedly residing in Portland, Oregon.

         On 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.

         Plaintiffs 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.

         The 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 ...

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