United States District Court, D. Oregon
FATHERS & DAUGHTERS NEVADA, LLC, and QOTD FILM INVESTMENT, LTD., Plaintiffs,
JESSE BENJAMIN BROWN, Defendant.
OPINION AND ORDER
Michael H. Simon United States District Judge.
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.
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 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.
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.
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.
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
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