United States District Court, W.D. Washington, Seattle
ORDER GRANTING IN PART LHF'S MOTIONS FOR DEFAULT
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff LHF Productions,
Inc.'s (“LHF”) Motion for Default Judgment
Against Lauren Burks (Dkt. #71), Motion for Default Judgment
against William Aely (Dkt. #73), Motion for Default Judgment
Against Tamika Greene (Dkt. #75), Motion for Default Judgment
Against Curtis Stout (Dkt. #77), Motion for Default Judgment
Against Donald Smith (Dkt. #79), Motion for Default Judgment
Against Lucy Gathu (Dkt. #81), Motion for Default Judgment
Against Douglas Cottrell (Dkt. #83), and Motion for Default
Judgment Against David Alvarez Jr. (Dkt. #85). Having
reviewed the relevant briefing and the remainder of the
record, LHF's motions for default judgment (Dkts. #71,
#73, #75, #77, #79, #81, #83, and #85) are GRANTED IN PART
for the reasons discussed below.
motions for default judgment are just a portion of more than
fifty default judgment motions filed by LHF in ten of sixteen
related cases before the Court. All sixteen cases assert the same
cause of action. LHF alleges that close to two hundred named
defendants unlawfully infringed its exclusive copyright to
the motion picture London Has Fallen, which it
developed and produced, by copying and distributing the film
over the Internet through a peer-to-peer network using the
BitTorrent protocol. Plaintiff uncovered the identities of
the alleged infringers after serving several internet service
providers (“ISP”s) with subpoenas issued by the
Court. Amended complaints identifying the alleged infringers
were subsequently filed.
Burks, Aely, Greene, Stout, Smith, Gathu, Cottrell, and
Alvarez (collectively “Defendants”) are named in
the same Amended Complaint because, given the unique
identifier associated with a particular digital copy of
London Has Fallen, along with the timeframe when the
internet protocol address associated with a named Defendant
accessed that unique identifier, LHF alleges the named
Defendants were all part of the same “swarm” of
users that reproduced, distributed, displayed, and/or
performed the copyrighted work. Dkt. #14 ¶¶ 10,
30-36, 41, 46. According to LHF, “[t]he temporal
proximity of the observed acts of each Defendant, together
with the known propensity of BitTorrent participants to
actively exchange files continuously for hours and even days,
makes it possible that Defendants either directly exchanged
the motion picture with each other, or did so through
intermediaries . . . .” Id. ¶ 36.
instant action, Defendants did not respond to LHF's
Amended Complaint. The Court entered default against
Defendants after they failed to respond to LHF's Amended
Complaint. See Dkts. #46, #47, #61, #62, #63, #64,
#69, and #70. LHF's motions for default judgment against
Defendants are now before the Court.
on this Court's Order of Default and pursuant to Rule
55(a), the Court has the authority to enter a default
judgment. Fed.R.Civ.P. 55(b). However, prior to entering
default judgment, the Court must determine whether the
well-pleaded allegations of a plaintiff's complaint
establish a defendant's liability. Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In
making this determination, courts must accept the
well-pleaded allegations of a complaint, except those related
to damage amounts, as established fact. Televideo Sys.,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987). If those facts establish liability the court may, but
has no obligation to, enter a default judgment against a
defendant. Alan Neuman Prods. Inc. v. Albright, 862
F.2d 1388, 1392 (9th Cir. 1988) (“Clearly, the decision
to enter a default judgment is discretionary.”).
Plaintiffs must provide the court with evidence to establish
the propriety of a particular sum of damages sought.
Televideo, 826 F.2d at 917-18.
allegations in LHF's Amended Complaint establish
Defendants' liability for copyright infringement. To
establish copyright infringement, LHF must demonstrate
ownership of a valid copyright and that Defendants copied
“constituent elements of the work that are
original.” L.A. Printex Indus., Inc. v.
Aeropostale, Inc., 676 F.3d 841, 846 (9th Cir. 2012)
(quoting Feist Publ'ns, Inc. v. Rural Tel. Serv.
Co., 499 U.S. 340, 361 (1991)). Here, LHF alleges it
owns the exclusive copyright to the motion picture London
Has Fallen. Dkt. #14 ¶¶ 5-9. LHF also alleges
that Defendants all participated in the same
“swarm” that unlawfully copied and/or distributed
the same digital copy of London Has Fallen.
Id. ¶¶ 10, 30-36, 41, 46. Because
Defendants did not respond to LHF's complaint, the Court
must accept the allegations in LHF's Amended Complaint as
true. See Fed. R. Civ. Proc. 8(b)(6). Accordingly,
LHF has established Defendants' liability.
Default Judgment is Warranted.
Court must next determine whether to exercise discretion to
enter a default judgment. Courts consider the following
factors in making this determination:
“(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, 782 F.2d at 1471-72.
majority of these factors weigh in favor of granting default
judgment against Defendants. LHF may be prejudiced without
the entry of default judgment as it will be left without a
legal remedy. See Landstar Ranger, Inc. v. Parth Enters,
Inc., 725 F.Supp.2d 916, 920 (C.D. Cal. 2010) (finding
plaintiff would suffer prejudice where denying default
judgment would leave plaintiff without remedy). LHF's
Amended Complaint is also sufficient, and Defendants did not
present any evidence or argument to the contrary.
Additionally, the Court finds there is a low probability that
default against Defendants was due to excusable neglect;
Defendants were given ample opportunity to respond to the
filings in this matter between the time they were served with
LHF's Amended Complaint and when LHF filed its motions
for default judgment. Finally, although there is a strong
policy favoring decisions on the merits, the Court may
consider Defendants' failure to respond to LHF's
Amended Complaint and its subsequent motions as an admission
that LHF's motions have merit. See Local Civil
Rule 7(b)(2) (“[I]f a party fails to file papers in
opposition to a motion, such failure may be considered by the
court as an admission that the motion has merit.”).
the Court acknowledges that a dispute concerning the material
facts alleged by LHF may arise. See Qotd Film Inv. Ltd.
v. Starr, No. C16-0371RSL, 2016 WL 5817027, at *2 (W.D.
Wash. Oct. 5, 2016) (acknowledging that dispute concerning
material facts may arise in BitTorrent infringement cases).
The Court also acknowledges that the amount at stake is not,
as LHF contends, modest - LHF seeks enhanced statutory
damages in the amount of $2, 500 along with between $2, 284
and $2, 400 in attorneys' fees, and between $93.53 and
$148.53 in costs, for each named Defendant in this matter.
See Dkts. #71 at 5-6, #72 ¶¶ 11-12, #73 at
5-6, #74 ¶¶ 11-12, #75 at 5-6, #76
¶¶11-12, #77 at 5-6, #78 ¶¶ 11-12, #79 at
5-6, #80 ¶¶ 11-12, #81 at 5-6, #82 ¶¶
11-12, #83 at 5-6, #84 ¶¶ 11-12, #85 at 5-6, and
#86 at ¶¶ 11-12. Notwithstanding these
considerations, the Eitel factors weigh in favor of
granting default judgment against Defendants.
Court next considers what relief to grant LHF. LHF seeks the
following three categories of relief from each defendant: (1)
permanent injunctive relief; (2) statutory damages; and (3)