United States District Court, W.D. Washington, Seattle
ORDER DIRECTING ENTRY OF DEFAULT JUDGMENT AGAINST
S. Lasnik, United States District Judge
matter comes before the Court on plaintiff UN4's motion
for default judgment against defendant Mortedha Al-Sultan.
Dkt. #132. Having reviewed the relevant briefing and the
remainder of the record, the Court finds as follows:
motion for default judgment is just one of the more than one
hundred default judgment motions filed by plaintiff's
counsel in twenty-six cases before the undersigned. All of
the cases assert essentially the same causes of action based
on remarkably similar allegations, although the motion
picture at issue, the owner of the copyright, and the
defendants vary. For purposes of this motion, UN4 alleges
that 60 individual defendants unlawfully infringed its
exclusive copyright to the motion picture Boyka
Undisputed 4, 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
Al-Sultan was initially sued in the same complaint as
twenty-two other individuals because, given the unique
identifier associated with a particular digital copy of
Boyka Undisputed 4 and the timeframe in which the
internet protocol address associated with each defendant
accessed that digital copy, UN4 alleges that all of the
defendants were all part of the same “swarm” of
users that reproduced, distributed, displayed, and/or
performed the copyrighted work. According to UN4, Al-Sultan
and his co-defendants directly or indirectly shared,
downloaded, and distributed a single unique copy of Boyka
Undisputed 4 that had been seeded to the torrent network
at some undefined point in the past.
initially responded to UN4's complaint (Dkt. # 49), but
subsequently failed to participate in the Rule 26(f)
conference or discovery. The Court issued an Order to Show
Cause why default should not be entered against Al-Sultan for
his failure to participate or respond to prior Court orders.
Dkt. #129. Default was entered against him on March 4, 2019.
Dkts. #131. UN4 now seeks judgment against Al-Sultan.
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 UN4's complaint establish Al-Sultan's
liability for direct copyright infringement. To establish
direct infringement, UN4 must demonstrate ownership of a
valid copyright and that Al-Sultan 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,
UN4 alleges it owns the exclusive copyright to the motion
picture Boyka Undisputed 4 and that Al-Sultan
participated in a “swarm” to unlawfully copy
and/or distribute the same unique copy of Boyka
Undisputed 4. These allegations were established by
entry of default against Al-Sultan. Accordingly, UN4 has
established his liability for direct copyright infringement.
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 Al-Sultan. UN4 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). UN4's
complaint sufficiently alleges a claim of direct copyright
infringement, and Al-Sultan did not present any evidence to
the contrary. Additionally, the Court finds there is a low
probability that default against Al-Sultan was due to
excusable neglect: defendant initially responded and was
given ample opportunity to participate in this matter but has
apparently chosen not to do so. ...