United States District Court, W.D. Washington Seattle.
ORDER GRANTING IN PART ME2's MOTIONS FOR DEFAULT
S. Lasnik United States District Judge.
matter comes before the Court on plaintiff ME2 Productions,
Inc.'s motions for default judgment against defendants
Brook Guzman (Dkt. #50), Dennis Semikin (Dkt. #52), Olivia
Bowser-Richard (Dkt. #54), Teresa Solomon (Dkt. #56), and
Randy Ely (Dkt. #58). Having reviewed the relevant briefing
and the remainder of the record, ME2's motions for
default judgment are GRANTED IN PART and DENIED IN PART.
five motions for default judgment that are the subject of
this Order are just a portion of the more than eighty default
judgment motions ME2 has filed in nineteen cases pending in
All of the cases assert the same causes of action. ME2
alleges that hundreds of individual defendants unlawfully
infringed its exclusive copyright to the motion picture
Mechanic: Resurrection, 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 served internet service providers
(“ISP”s) with subpoenas in order to identify the
alleged infringers. Amended complaints identifying defendants
by name were subsequently filed.
Guzman, Semikin, Bowser-Richard, Solomon, and Ely
(collectively “Defendants”) are named in the same
complaint because, given the unique identifier associated
with a particular digital copy of Mechanic:
Resurrection and the timeframe in which the internet
protocol address associated with each Defendant accessed that
digital copy, ME2 alleges the named Defendants were all part
of the same “swarm” of users that reproduced,
distributed, displayed, and/or performed the copyrighted
work. According to ME2, Defendants directly or indirectly
shared, downloaded, and distributed a single unique copy of
Mechanic: Resurrection that had been seeded to the
torrent network at some undefined point in the past.
did not respond to ME2's complaint. The Clerk of Court
therefore entered default against Defendants at ¶
2's request. See Dkts. #40-44. ME2 now seeks
judgment against each Defendant.
Rule of Civil Procedure 55(b) authorizes a court to grant
default judgment. Prior to entering judgment in
defendant's absence, the Court must determine whether the
allegations of a plaintiff's complaint establish his or
her liability. Eitel v. McCool, 782 F.2d 1470,
1471-72 (9th Cir. 1986). The court must accept all well-pled
allegations of the complaint as established fact, except
allegations related to the amount of damages. TeleVideo
Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987). Where the alleged facts establish a defendant's
liability, the court has discretion, not an obligation, to
enter default judgment. Alan Neuman Productions, Inc. v.
Albright, 862 F.2d 1388, 1392 (9th Cir. 1988). If
plaintiff seeks an award of damages, it must provide the
Court with evidence to establish the amount. TeleVideo
Sys., 826 F.2d at 917-18.
allegations in ME2's complaint establish Defendants'
liability for direct copyright infringement. To establish
direct infringement, ME2 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,
ME2 alleges it owns the exclusive copyright to the motion
picture Mechanic: Resurrection and that Defendants
participated in a “swarm” to unlawfully copy
and/or distribute the same unique copy of Mechanic:
Resurrection. These allegations were established by
entry of default against Defendants. Accordingly, ME2 has
established Defendants' liability for direct copyright
Default Judgment is Warranted.
established liability, plaintiff must also show that default
judgment is warranted. Courts often apply the factors listed
in Eitel, 782 F.2d at 1471-72, to make this
determination. Those factors are:
“(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
majority of these factors weigh in favor of granting default
judgment against Defendants. ME2 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). ME2's
complaint sufficiently alleges a claim of direct copyright
infringement, 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 ME2's complaint and when ME2 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 ME2's
requests for default and default judgment as admissions that
the motions have merit. LCR 7(b)(2).
Court acknowledges that a dispute concerning the material
facts alleged by ME2, including the identity of the alleged
infringers, could arise in this case. The Court also
acknowledges that the amount at stake may be significant
depending on the means of each Defendant. ME2 seeks enhanced
statutory damages in the amount of at least $1, 500 along
with attorneys' fees in excess of $1, 600 and costs in
excess of $150 from each individual Defendant.
Notwithstanding these considerations, the Eitel
factors weigh in favor of granting default judgment against
requests entry of a default judgment against each Defendant
providing the following three categories of relief: (1)
permanent injunctive relief; (2) statutory damages; and (3)