United States District Court, D. Oregon
JUST BE INC., an Oregon corporation doing business as COMPOUND GALLERY, Plaintiff,
MAX BRISENDINE, an individual, Defendant.
FINDINGS AND RECOMMENDATION
F. BECKERMAN UNITED STATES MAGISTRATE JUDGE
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.
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
(www.instagram.com/compoundgallery). (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.)
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.)
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.)
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.)
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).
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
Court finds that the Eitel factors weigh in favor of
entering default judgment in this case.
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 ...