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Trentadue v. Lamonte

United States District Court, D. Oregon

March 6, 2019

CARL JOSEPH TRENTADUE (aka CARLO TRENTA), Plaintiff,
v.
JOHN DONALD LAMONTE, an individual, CREATIVE SOUNDS, LTD, a corporation, DOES 1 through 100, inclusive, Defendants.

          FINDINGS AND RECOMMENDATION

          BECKERMAN, MAGISTRATE JUDGE.

         Carl Joseph Trentadue (“Plaintiff”) brings this action against Defendants John Donald Lamonte (“Lamonte”), Creative Sounds, Ltd. (“Creative Sounds”), and Does 1 through 100, alleging claims for copyright infringement under the Copyright Act. Plaintiff now moves, pursuant to Fed.R.Civ.P. 55(b), for entry of default judgment against Lamonte and Creative Sounds (together, “Defendants”). The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons that follow, the district judge should grant Plaintiff's motion for default judgment (ECF No. 21).

         BACKGROUND

         Plaintiff is the registered copyright holder of copyrights for the music compositions and sound recordings of the following seven songs: “Mechanical Liz, ” “Habit Rabbit, ” “Tough Boy's A Punk (aka Tough Boy), ” “I'm Not Your Pushing Broom, ” “Credit Card, ” “Next Door Girl, ” and “Next Girl Door (Disco music version)” (collectively, the “Copyrighted Works”). (Compl. ¶ 2; Compl. Schedule A.) Plaintiff registered the copyrights for these works in 1979 and 1980, and recorded them on a vinyl album entitled “Carlo Trenta and The Demons” in 1981. (Decl. of Carl Joseph Trentadue in Supp. of Mot. for Gen. J. by Def. (“Trentadue Decl.”) ¶ 4; Compl. Schedule A.) Five thousand copies of the album were distributed in record stores in a seven-state area between 1981 and 1982. (Trentadue Decl. ¶ 5.)

         In July 2017, a Connecticut record store owner contacted Plaintiff to inform him that Creative Sounds had, years prior, released an album entitled “Billy Joel with Attila/The Hassles Rollin' Home” (“Rollin' Home”) that contained Plaintiff's Copyrighted Works.[1] (Trentadue Decl. ¶ 6, Ex. 6.) The record store owner informed Plaintiff that “Rollin Home” had been on the market since at least 1992, when he first purchased the album on compact disc, and that he had later come across it in vinyl record and cassette tape formats. (Trentadue Decl. Ex. 6.) The store owner told Plaintiff that the songs numbered 9-14 on “Rollin Home” were identical to Plaintiff's Copyrighted Works, although the song titles had been changed.[2] (Id.) Plaintiff was previously unaware of the existence of any duplications or other versions of his Copyrighted Works. (Id.) The store owner mailed Plaintiff a “Rollin Home” compact disc and, upon receipt, Plaintiff confirmed that the album contained his Copyrighted Works. (Id., Trentadue Decl. ¶ 7.) Plaintiff later discovered that “Rollin Home” is still being sold on several websites, as well as retail stores in Portland, Oregon. (Trentadue Decl. ¶¶ 8-9.)

         Plaintiff filed this action on August 17, 2018, alleging that Defendants infringed Plaintiff's copyrights on the seven Copyrighted Works in violation of the Copyright Act, 17 U.S.C. §§ 101-1332. (Compl. ¶ 15.) On August 23, 2018, Plaintiff served the complaint on Defendants, via a process server, at Lamonte's home in Sedona, Arizona. (ECF Nos. 8-9.) Defendants did not timely file an answer and, after serving a notice of default, Plaintiff moved for entry of default, which the clerk entered on October 11, 2018. (ECF Nos. 12, 14, 15.)

         Plaintiff now seeks a default judgment permanently enjoining Defendants from engaging in infringing activity and awarding statutory damages of $1, 050, 000, reflecting the maximum statutory damages of $150, 000 for each of Plaintiff's seven Copyrighted Works. (Pl.'s Mot. for Def. J. ¶ 6.)

         ANALYSIS

         I. STANDARD OF REVIEW

         Pursuant to Fed.R.Civ.P. 55(a), the clerk of court is required to enter an order of default if a party against whom affirmative relief is sought has failed timely to plead or otherwise defend an action. See 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.”). “The general rule is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977) (citations omitted); see also City of N.Y. v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 128 (2d Cir. 2011) (“The entry of a default, while establishing liability, ‘is not an admission of damages.'”) (citation omitted).

         Fed. R. Civ. P. 55 “provides that after the clerk's entry of default against a defendant, a court may enter default judgment against that defendant.” FirstBank P.R. v. Jaymo Props., LLC, 379 Fed.Appx. 166, 170 (3d Cir. 2010). “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). In exercising this discretion, district courts in the Ninth Circuit consider the factors articulated in Eitel v. McCool, 782 F.2d 1470 (9th Cir.1986). See J&J Sport Prods., Inc. v. Salas, No. 13-cv- 05553, 2015 WL 3429153, at *2 (N.D. Cal. May 27, 2015). The Eitel factors are: (1) the possibility of prejudice to Plaintiff; (2) the merits of Plaintiff's substantive claims; (3) the sufficiency of the operative complaint; (4) the sum of money at stake in the litigation; (5) the possibility of 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. The “starting point” of the district court's analysis, however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.

         II. DISCUSSION

         A. Default Judgment

         The Court finds that the Eitel factors weigh in favor of entering ...


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