United States District Court, W.D. Washington, Seattle
S. Zilly United States District Judge
MATTER comes before the Court on plaintiff Cobbler Nevada,
LLC's motion for default judgment, docket no. 72, against
defendant Kevin James. Having reviewed all papers filed in
support of plaintiff's motion, as well as the record in
this matter, the Court enters the following order.
case is one of twelve actions filed by plaintiff. Plaintiff
has obtained default judgments against 47 of the 234
defendants in these matters, in the total amount of $161,
059.70, representing $36, 000 in statutory damages, $118, 607
in attorney's fees, and $6, 452.70 in costs.
Plaintiff's claims against 186 defendants have been
dismissed by either notice or stipulation filed pursuant to
Federal Rule of Civil Procedure 41(a)(1)(A), presumably
because plaintiff resolved its disputes with such defendants.
The aggregate amount that plaintiff has received in
settlement has not been disclosed to the Court.
Plaintiff's claim against Kevin James is the only one
still remaining in these related proceedings.
other defendants against whom default was entered, Mr. James
filed an answer to the Amended Complaint, docket no. 19,
which accuses him of infringing plaintiff's copyright in
the motion picture “The Cobbler, ” starring Adam
Sandler, by downloading and sharing the film via the
BitTorrent network. See Verified Answer (docket no.
40). In his answer, which was filed on June 9, 2016, Mr.
James indicated, under oath, that he has never visited the
BitTorrent website, did not illegally download a movie, and
has not watched “The Cobbler.” Id. Mr.
James explained that, when he was first assigned the Internet
Protocol (“IP”) address at issue, his wireless
network (“Wi-Fi”) was not password protected, but
he added such security feature when he received notice about
unlawful downloads. Id. During the interim, various
neighbors, including individuals residing in three nearby
rental homes, would have been within range to use his Wi-Fi
and IP address. Id. Mr. James further stated that he
pays for cable and can watch movies for either no or minimal
charge, so he has no incentive to use BitTorrent to view such
content. Id. Finally, Mr. James advised that he had
recently suffered a stroke and was disabled. Id.
6, 2016, plaintiff's counsel telephonically requested an
extension of the deadline for filing a Joint Status Report,
and the deadline was continued to August 22, 2016. On July 8,
2016, the parties conducted the requisite Rule 26(f)
conference. See Pla.'s Status Report (docket no.
58). No Joint Status Report or Discovery Plan, however, was
ever submitted. See Fed.R.Civ.P. 26(f)(2) (requiring
that a Discovery Plan be filed within fourteen days after the
discovery conference). Instead, on August 22, 2016,
plaintiff's counsel sought and received yet another
extension of the deadline for filing a Joint Status Report.
In obtaining such continuance, plaintiff's counsel did
not disclose that he had served on Mr. James, on July 19,
2016, a set of 19 interrogatories and a set of 18 requests
for production. See Exs. A & B to Lowe Decl.
(docket no. 57-1).
James did not respond to plaintiff's discovery requests
and, on September 20, 2016, plaintiff's counsel filed
both (i) a motion to compel discovery, and (ii) a unilateral
Status Report, indicating that he had been unable to reach
Mr. James for purposes of conducting a Rule 37 conference.
See Pla.'s Mot. (docket no. 56); Status Report
(docket no. 58). The Court directed Mr. James to answer
plaintiff's interrogatories, but did not instruct him to
respond to plaintiff's requests for production. Minute
Order (docket no. 59). Mr. James still did not provide the
requested discovery, and in December 2016, plaintiff
unsuccessfully sought default judgment against Mr. James as a
sanction. See Pla.'s Mot. (docket no. 60);
see also Minute Order (docket no. 63).
February 2017, plaintiff asked the Court to issue an order to
show cause, and in March 2017, the Court did so. See
Minute Order (docket no. 65). Mr. James promptly responded,
under penalty of perjury, and repeated his assertion that he
had never viewed “The Cobbler” via BitTorrent or
otherwise. Def.'s Resp. (docket no. 67). Mr. James added
that he subscribes to iTunes Movies, Amazon Prime, and
Netflix, services through which movies (including “The
Cobbler”) can be instantaneously streamed, and thus, he
does not “waste time” downloading content.
Id. Finally, Mr. James characterized plaintiff's
counsel's approach as harassing, complaining about
repeated calls and indicating that he was served with summons
shortly after being carried into his home following a six-day
hospital visit. Id. Mr. James did not, however,
provide any explanation for failing to comply with the
Court's prior order or answer plaintiff's
2017, the Court encouraged Mr. James to request that counsel
be appointed for him for the limited purpose of participating
in an alternative dispute resolution procedure, and advised
him that if he failed to do so, the Court would decide
plaintiff's renewed motion for discovery sanctions, to
which Mr. James had not responded. See Minute Order
(docket no. 70). Mr. James took no action, and the Court
entered default against him. Order (docket no. 71). Plaintiff
now requests a default judgment that includes an injunction
to prevent continued infringement, statutory damages in the
amount of $2, 500, attorney's fees in the amount of $3,
555, and costs in the amount of $188.57.
authorizes the Court to impose sanctions for failing to obey
an order to provide discovery. Fed.R.Civ.P. 37(b)(2). Such
sanctions may include striking a pleading or rendering
default judgment against the disobedient party. Id.
Before adopting such severe measures, however, the Court must
consider a number of factors, including the availability of
less drastic sanctions. See, e.g.,
Hester v. Vision Airlines, Inc., 687 F.3d 1162, 1169
(9th Cir. 2012). The Court must also be mindful of the public
policy favoring disposition of cases on their merits. See
id. Default judgment is a harsh penalty, which may be
imposed only in extreme circumstances, and it must be
justified by willfulness, bad faith, or fault on the part of
the party being sanctioned. See id.; see also
Nat'l Hockey League v. Metro. Hockey Club, Inc., 427
U.S. 639, 640 (1976).
reviewed the record in this matter, the Court is not
persuaded that default judgment against Mr. James is
warranted. Mr. James has filed a responsive pleading, which
has not itself been stricken pursuant to Rule
37(b)(2)(A)(iii), that disputes the crux of plaintiff's
claim for copyright infringement. Mr. James has told both
plaintiff and the Court, under oath, that he did not download
or view plaintiff's film “The Cobbler, ” and
that others, including neighboring renters, might have used
his IP address during the period when his Wi-Fi was not
password protected. With perhaps one exception, the
interrogatories that plaintiff's counsel served on Mr.
James would not have elicited much, if any, additional useful
information. The exception is Interrogatory No. 10, which
asked Mr. James to identify any neighbors within 200 feet of
his residence. See Ex. A to Lowe Decl. (docket no.
57-1). To the extent Mr. James knows the renters who reside
in the houses next to his, the requested information might
have assisted plaintiff in naming a substitute defendant or
defendants. Plaintiff, however, could also have easily
obtained the addresses of nearby homes and communicated
directly with their residents.
Court declines to find the requisite willfulness, bad faith,
or fault on the part of Mr. James. Mr. James's failure to
respond to plaintiff's discovery requests can be
attributed to both his poor health and a reasonable belief
that he had already answered the relevant questions by filing
materials with the Court, which he had signed under oath
before a Notary Public. Moreover, the Court is troubled by
plaintiff's counsel's approach concerning discovery
in this matter. After conducting a Rule 26(f) conference,
plaintiff's counsel did not submit a Discovery Plan to
the Court before propounding interrogatories and requests for
production, did not inform the Court that discovery was
ongoing when he sought an extension of the deadline for
filing a Joint Status Report, and did not submit the
unilateral Status Report until a motion to compel discovery
was already pending before the Court. Having been thereby
limited in its ability to monitor and manage this litigation,
the Court is reluctant to make Mr. James shoulder the
enormous burden that plaintiff suggests he should.
Court has considered the possibility of imposing a monetary
penalty of $980, representing attorney's fees relating to
plaintiff's successful motions to compel and for an order
to show cause (2.8 hours at $350 per hour), see Lowe
Decl. at ¶ 7 (docket no. 73), but has opted not to
sanction Mr. James. Although the Court does not condone
disregard of its instruction to answer plaintiff's
interrogatories, the Court acknowledges that the discovery
requests were not “proportional to the needs of the
case, ” Fed.R.Civ.P. 26(b), and should have been
narrowed before Mr. James was ordered to respond. The Court
further observes that the parties are far from being on equal
footing, and that plaintiff's counsel has attempted to
exploit this disparity by serving onerous discovery requests
and attempting to establish liability via discovery sanctions
as opposed to evidence of any wrongdoing. To the extent that
plaintiff has incurred attorney's fees in pursuing