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Criminal Productions, Inc. v. Turchin

United States District Court, D. Oregon

March 14, 2017

CRIMINAL PRODUCTIONS, INC., and LHF PRODUCTIONS, INC., Plaintiffs,
v.
ANDREY TURCHIN, Defendant.

          OPINION AND ORDER

          Michael H. Simon United States District Judge.

         Plaintiffs 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 injunctive relief.

         STANDARDS

         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.

         BACKGROUND

         In July 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.

         On 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.

         On 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.

         Plaintiffs moved for an order of default. The Court issued an Order of Default on January 17, 2017. On February 19, 2017, ...


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