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Just Be Inc. v. Brisendine

United States District Court, D. Oregon

May 3, 2019

JUST BE INC., an Oregon corporation doing business as COMPOUND GALLERY, Plaintiff,
MAX BRISENDINE, an individual, Defendant.



         Plaintiff Just Be, Inc. (“Just Be”), doing business as Compound Gallery, brings this action against Defendant Max Brisendine (“Brisendine”), alleging a violation of the Computer Fraud and Abuse Act (“CFAA”) and Oregon's Unlawful Trade Practices Act. (Compl. ¶¶ 31-36.) Just Be now moves, pursuant to Fed.R.Civ.P. 55(b), for entry of default judgment. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1331. For the reasons that follow, the district judge should grant Just Be's motion for default judgment.


         Just Be is a corporation that owns a retail shop in Portland, Oregon, specializing in street fashion, pop culture, and modern art. (Compl. ¶ 8.) As part of Just Be's effort to market its shop and products, it maintains various social media accounts, including an Instagram account ( (Compl. ¶¶ 9-10.) On November 22, 2017, Just Be hired Brisendine as a social media photography intern. (Compl. ¶ 16.) Brisendine's duties included generating content for Just Be's social media accounts, including Instagram. (Id.) At no time was Brisendine authorized to access Just Be's Instagram account. (Compl. ¶ 24.) On December 10, 2017, Just Be terminated Brisendine's internship. (Compl. ¶ 17.)

         On January 6, 2018, Just Be discovered that it was unable to access its Instagram account using its login credentials. (Compl. ¶ 18.) During the process of trying to recover its access, Just Be learned that the login credentials had been changed so that the codes for recovering the account would be sent to Brisendine's phone number. (Compl. ¶¶ 21-22, 25.) Just Be was able to regain access to its account on January 9, 2018, three days later. (Compl. ¶ 20.) When Just Be regained access to its account, it discovered that 606 days of daily Instagram posts had been deleted and could not be recovered. (Compl. ¶¶ 11, 26.) Just Be had paid its employees and contractors $13, 635 to create this content. (Pl.'s Mot. for Def. J. at 4.) Just Be also spent $500 in staff time attempting to recover the deleted content. (Id.)

         Just Be filed this action on March 30, 2018. On May 12, 2018, Just Be served Brisendine via a process server, after attempting and failing to effect service via U.S. Mail. (ECF Nos. 5-6.) Brisendine did not timely file an answer and, after providing Brisendine notice of default on July 10, 2018, Just Be moved for entry of default, which the Clerk entered on July 27, 2018. (ECF Nos. 6-7.)

         Just Be now seeks entry of default judgment on its CFAA claim, and a $14, 135 damage award, reflecting the value of the lost Instagram content and the costs associated with its attempted recovery efforts. (Pl.'s Mot. for Def. J. at 4.)


         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. SeeFed. 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 the plaintiff; (2) the merits of the 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.


         A. Default Judgment

         The Court finds that the Eitel factors weigh in favor of entering default judgment in this case.

         First, Just Be will suffer prejudice if the Court declines to enter default judgment because Brisendine's failure to respond to the lawsuit has left Just Be with no alternative means for relief. SeePhilip Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499 (C.D. Cal. 2003) (noting that the “[p]laintiff would suffer prejudice if the default judgment is not entered because [the ...

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