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 Richard Acosta (Dkt. #60), Motion for Default
Judgment against Nathaniel Lewis (Dkt. #62), Motion for
Default Judgment Against Shawn Gauci (Dkt. #64), Motion for
Default Judgment Against Anatoliy Orlovskiy (Dkt. #66),
Motion for Default Judgment Against Zhana Prieb (Dkt. #68),
and Motion for Default Judgment Against Denise Evans (Dkt.
#70). Having reviewed the relevant briefing and the remainder
of the record, LHF's motions for default judgment (Dkts.
#60, #62, #64, #66, #68, and #70) 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.
Acosta, Lewis, Gauci, Orlovskiy, Prieb, and Evans
(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. #20 ¶¶ 10, 28-34, 39, 44.
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. ¶ 34.
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. #54, #55, #56, #57, #58, and
#59. 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. #20 ¶¶ 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. Dkt. #20
¶¶ 10, 28-34, 39, 44. 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 $2, 994 in
attorneys' fees, and between $146 and $211 in costs, for
each named Defendant in this matter. See Dkts. #60
at 5-6, #61 ¶¶ 11-12, #62 at 5-6, #63 ¶¶
11-12, #64 at 5-6, #65 ¶¶11-12, #66 at 5-6, #67
¶¶ 11-12, ...