United States District Court, D. Oregon
RICHARD N. BELL, Plaintiff,
MICHAEL J. DAVIS a/k/a JAMES MICHAEL DAVIS, an individual; BIGADO NETWORKS INCORPORATED, an Oregon corporation; MJ CONSULTING SERVICES, INC., an Oregon corporation operating under a/b/n EZ TICKET; and EZ TICKET, LLC, an Oregon limited liability company, Defendants.
J. McDonald, Slinde Nelson, Attorney for Plaintiff.
OPINION AND ORDER
J. IMMERGUT UNITED STATES DISTRICT JUDGE.
Richard N. Bell seeks default judgment against Defendants
Michael J. Davis, Bigado Networks Inc., MJ Consulting
Services, Inc., and EZ Ticket, LLC. ECF 12. Plaintiff brings
one claim of copyright infringement, claiming Defendants used
his copyrighted photograph on two websites without
authorization. ECF 1 at 10-11, ¶¶ 35-37, 12, ¶
37; see 17 U.S.C. § 501. Plaintiff also brings
a claim for alter ego liability against Defendant Davis and a
claim for vicarious liability against all Defendants for this
alleged infringement. ECF 1 at 7-8, ¶¶ 19-22,
13-14, ¶¶ 42-50. Defendants have not filed an
answer, opposed Plaintiff's motion, or otherwise appeared
in the litigation.
lawsuit is one of over 100 copyright lawsuits filed by
Plaintiff involving the same photograph of the Indianapolis
skyline (the “skyline photograph”). In a similar
lawsuit filed by Plaintiff in the Southern District of
Indiana, Bell v. Carmen Commercial Real Estate
Servs., a jury determined that Plaintiff failed to
establish that he owned a valid copyright in the skyline
photograph at issue in this case. No. 1:16-cv-01174-JRS-MPB
(S.D. Ind. Sept. 26, 2019). Given the decision in Bell v.
Carmen Commercial Real Estate Servs., this Court finds
that Plaintiff is precluded from relitigating whether he owns
a copyright interest in the skyline photograph. For this
reason, and the reasons that follow, this Court declines to
enter a default judgment.
Federal Rule of Civil Procedure 55(a), the clerk of the court
must enter an order of default if a party against whom
affirmative relief is sought fails to timely file an answer
or otherwise defend an action. Fed.R.Civ.P. 55(a). After
default has been entered against a defendant, a court may
enter default judgment against that defendant. See
Fed. R. Civ. P. 55(b)(2). Upon default, the well-pleaded
factual allegations in the complaint are taken as true,
excluding those related to damages. TeleVideo Sys., Inc.
v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (per
curiam). However, “facts which are not established by
the pleadings of the prevailing party, or claims which are
not well-pleaded, are not binding and cannot support the
judgment.” Danning v. Lavine, 572 F.2d 1386,
1388 (9th Cir. 1978) (citing Nishimatsu Constr. Co. v.
Houston Nat'l Bank, 515 F.2d 1200 (5th Cir. 1975)).
Whether to grant or deny a motion for default judgment is
within the court's discretion. Aldabe v. Aldabe,
616 F.2d 1089, 1092 (9th Cir. 1980). The Ninth Circuit has
provided the following factors, commonly referred to as the
Eitel factors, which may guide a district
court's consideration of whether to enter default
(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
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). The starting point of the court's analysis
“is the general rule that default judgments are
ordinarily disfavored.” Id. at 1472.
provides courts with “considerable leeway” as to
what may be required before an entry of default judgment.
TeleVideo Sys., 826 F.2d at 917; see Fed.
R. Civ. P. 55(b)(2). The court may conduct evidentiary
hearings to determine the amount of damages, establish the
truth of an allegation, or to investigate other matters.
Fed.R.Civ.P. 55(b)(2). The court may also hold hearings so
that a plaintiff may present a “prima facie case
showing entitlement to judgment.” See TeleVideo
Sys., 826 F.2d at 917.
Michael J. Davis is the operator and registered agent of the
entity defendants involved in this action-Bigado Networks,
Inc., MJ Consulting Services, Inc., and EZ Ticket, LLC. ECF 1
at 3-4, ¶¶ 8-12. Defendant Davis created two
websites for commercial online ticket brokering,
www.ez-ticket.com (“EZ-Ticket website”) and
website”). Id. at 4-6, ¶¶ 12-14. The
EZ-Ticket website is owned and operated by Defendant MJ
Consulting Services, Inc. Id. at 4, ¶ 13. The
AAC website is owned and operated by “EZ-Ticket.com,
LLC, ” a subsidiary of the parent company Bigado
Networks, Inc. Id. at 5, ¶ 14.
Richard N. Bell is a professional photographer. Id.
at 2, ¶ 6. Plaintiff contends that he took the skyline
photograph in or around 2000. ECF 1 at 3, ¶ 7. Eleven
years later, on August 4, 2011, Plaintiff further claims he
registered the skyline photograph with the United States
Copyright Office under registration number VA0001785115.
Id. Plaintiff uses the skyline photograph for
advertising and sells licenses for its use on his website,
www.richbellphoto.com. Id. at 7, ¶ 17; 8,
searches for unauthorized uses of his copyrighted works with
image tracing programs such as Google Images or Tineye. In
2017, while using one of those programs, Plaintiff discovered
the unauthorized use of the skyline photograph on Defendant
Davis's websites, www.ez-ticket.com and
www.americanairlinescenterdallastx.com. Id. at 9,
¶ 27. In November 2017, Plaintiff emailed a letter to
Defendants demanding that they remove the photograph and pay
$5, 000 in licensing fees to avoid legal action.
Id., Ex. 10, ECF 1-11. Defendants reportedly did not
send payment, remove the photograph, or respond to the notice
from Plaintiff. ECF 1 at 9-10, ¶ 30.
11, 2019, Plaintiff filed this complaint against Defendants
for copyright infringement. ECF 1. Plaintiff effected service
on Defendants on July 17, 2019. ECF 5; ECF 6; ECF 7; ECF 8.
Defendants failed to appear or respond to the complaint. At
the request of Plaintiff, Magistrate Judge Jolie A. Russo
issued an entry of default against all Defendants on August
12, 2019. ECF 11. Plaintiff then filed the motion currently
before this Court on September 11, 2019, requesting an entry
of default judgment against all Defendants. ECF 12. Plaintiff
seeks an award of $150, 000 in statutory damages under 17
U.S.C. § 504, attorney fees, costs, and injunctive
relief. Id. at 8-9.
has filed over 100 similar copyright infringement lawsuits
concerning the skyline photograph. ECF 19 at 1, ¶
To date, only three of these cases have gone to trial. ECF 19
at 1, ¶ 2. Most of the disputes resulted in pre-trial
resolution, many pursuant to default judgments. See
Id. The default judgments often resulted in statutory
damage awards of $2, 000 to $3, 000. See, e.g.,
Bell v. Barber, No. 3:18-cv-01491 DMS (BGS), 2019 WL
4467955, at *4 (S.D. Cal. Sept. 16, 2019) ($3, 000); Bell
v. Mattox, No. 1:18-cv-01677-SEB-DLP, 2019 WL 590147, at
*3 (S.D. Ind. Feb. 12, 2019) ($3, 000); Bell v. KG Am.
Real Estate Holdings, LLC, No. 1:15-cv-01423-JMS-DML,
2016 WL 7971721, at *5 (S.D. Ind. Sept. 16, 2016) ($2, 000);
Bell v. Am. Auto Transp., No 1:11-cv-00766-TWP-DKL,
2014 WL 2745757, at *1 (S.D. Ind. June 17, 2014) ($2, 500).
Plaintiff has succeeded, however, in receiving default
judgments awarding the statutory maximum of $150, 000 in some
cases. See, e.g., Bell v. A1 Luxury Limousine ...