United States District Court, D. Oregon
OPINION AND ORDER
Michael H. Simon United States District Judge.
Clear Skies Nevada, LLC (“Clear Skies”), brings
this action against Defendant John Evan Fritter
(“Defendant” or “Fritter”). Plaintiff
alleges that Defendant copied and distributed Plaintiff's
motion picture, Good Kill, through a public
BitTorrent network in violation of Plaintiff's exclusive
rights under the Copyright Act. Before the Court is
Plaintiff's motion for entry of default judgment under
Federal Rule of Civil Procedure 55(b). For the following
reasons, the Court grants Plaintiff's motion, and will
enter a default judgment against Defendant in the amount of
$1, 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 Plaintiff 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 July 5, 2016, Plaintiff filed its complaint in
this case, identifying a doe defendant IP address as a person
who illegally downloaded Good Kill using the
BitTorrent network, among many other motion pictures.
Plaintiff then identified Fritter as the subscriber
associated with the infringing IP address 18.104.22.168.
September 6, 2016, Plaintiff filed an amended complaint,
naming Fritter as the defendant. Fritter was personally
served with the Summons and amended complaint. He failed to
appear, and on November 21, 2016, the Court entered an order
of default against Fritter.
Plaintiff filed its motion for entry of a default judgment
against Defendant, the Court appointed pro bono counsel to
advise Defendant. Appointed counsel has advised the Court
that despite diligent efforts, counsel has been unable to
communicate with Fritter.
Defendant being served with this action, receiving
communications from Plaintiff's counsel, receiving
communications from the Court, and receiving communications
from appointed pro bono counsel, infringing activity
continues to be monitored at the IP address associated with
Defendant. A review of the IP address ...