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Bell v. Davis

United States District Court, D. Oregon

December 31, 2019

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.

          Ashley J. McDonald, Slinde Nelson, Attorney for Plaintiff.



         Plaintiff 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.

         This 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.


         Under 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 judgment:

(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 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.

         Rule 55 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.


         Defendant 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, (“EZ-Ticket website”) and (“AAC 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 “, LLC, ” a subsidiary of the parent company Bigado Networks, Inc. Id. at 5, ¶ 14.

         Plaintiff 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, Id. at 7, ¶ 17; 8, ¶ 25.

         Plaintiff 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, and 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.

         On June 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.

         Plaintiff has filed over 100 similar copyright infringement lawsuits concerning the skyline photograph. ECF 19 at 1, ¶ 2.[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 ...

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