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Fathers & Daughters Nevada, LLC v. Brown

United States District Court, D. Oregon

June 1, 2017



          Michael H. Simon United States District Judge.

         Plaintiffs Fathers & Daughters Nevada, LLC (“F&D”) and QOTD Film Investment, LTD (“QOTD”). bring this action against Defendant Jess Benjamin Brown. Plaintiffs allege that Defendant copied and distributed each of Plaintiffs' 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 $1, 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 May 26, 2016, Plaintiff F&D filed its complaint in this case, identifying a doe defendant IP address as a person who illegally downloaded F&D's motion picture Fathers & Daughters using the BitTorrent network, among many other motion pictures. Plaintiff F&D then identified the subscriber associated with the infringing IP address, and that subscriber identified Mr. Brown, who at the time was an occupant's of the subscriber's household, as the infringing party.

         On September 7, 2016, Plaintiff F&D filed an amended complaint, naming Mr. Brown as the defendant and joining the additional plaintiff QOTD. Defendant appeared through counsel and waived service, although he did not answer or otherwise respond to the Amended Complaint. Plaintiffs moved for an order of default. The Court issued an Order of Default on December 9, 2016. On May 7, 2017, Plaintiffs filed a motion for default judgment.

         Although Defendant has not answered or otherwise defended this litigation, he did appear through counsel to respond to the motion for default judgment and argue that minimum statutory damages are appropriate in this case. He also identified for the Court that although he had not been active in the litigation before the Court, he had been communicating with Plaintiffs through counsel and had made various settlement offers, all of which were rejected by Plaintiffs.


         To establish a claim of copyright infringement, a “plaintiff must show ownership of the copyright and copying by the defendant.” Fox Broad. Co. v. Dish Network L.L.C., 747 F.3d 1060, 1066-67 (9th Cir. 2013) (quotation marks omitted). The factual allegations of Plaintiffs' Amended Complaint, which the Court accepts as true upon default, establish these elements. Accordingly, a judgment of default is appropriate in this case. See Glacier Films (USA), Inc. v. ...

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