United States District Court, D. Oregon
CRIMINAL PRODUCTIONS, INC., and LHF PRODUCTIONS, INC., Plaintiffs,
ANDREY TURCHIN, Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
Criminal Productions, Inc. (“Criminal
Productions”) and LHF Productions, Inc.
(“LHF”) bring this action against Defendant
Andrey Turchin (“Turchin” or
“Defendant”). Plaintiffs allege that Defendant
copied and distributed Plaintiffs' motion pictures
Criminal and London Has Fallen,
respectively, 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 $5, 000, along with
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.
2016, Turchin entered into a stipulated consent judgment in
the case of Glacier Films (USA), Inc., et al v. Andrey
Turchin, 3:15-cv-1817-SB. In that case, for purposes of
resolving the dispute, he stipulated to the allegations of
liability, including that he willfully downloaded the motion
picture American Heist through the BitTorrent
network with the intent to cause harm. Turchin agreed to pay
$750 in statutory damages. He also consented to a permanent
injunction “from using the Internet to reproduce, copy
or publish the motion picture American Heist . . .
[and] to immediately delete any unlicensed copy of the motion
picture American Heist in his possession or
control.” Case No. 3:15-cv-1817-SB, ECF 43 at 3.
August 23, 2016, Plaintiff Criminal Productions filed its
complaint in this case, identifying a doe defendant IP
address as a person who illegally downloaded Criminal
Production's motion picture using the BitTorrent network,
among many other motion pictures. Plaintiff Criminal
Productions then identified Turchin as the subscriber
associated with the infringing IP address. After identifying
that this case may be related to the Glacier Films
case, which was on appeal on for which Turchin has counsel,
the Court appointed pro bono counsel to represent Turchin.
Counsel spoke on the telephone with Turchin and informed him
that counsel was appointed to assist Turchin without cost,
but Turchin refused further communications with counsel.
Counsel then moved to withdraw and the Court terminated the
appointment of pro bono counsel.
December 11, 2016, Plaintiff Criminal Productions filed an
amended complaint, naming Turchin as the defendant and
joining LHF as an additional plaintiff. Turchin 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.
moved for an order of default. The Court issued an Order of
Default on January 17, 2017. On February 19, 2017, ...