United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT IN PARTY AND
DENY IN PART PLAINTIFF COOK PRODUCTION LLC'S MOTION FOR
ENTRY OF DEFAULT JUDGMENT AGAINST DEFENDANT ALEX
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff Cook Production, LLC's Motion for
Entry of Default Judgment Against Defendant Alex Stewart,
filed on July 7, 2017 (“Motion”). ECF No. 26. The
Court found the Motion suitable for disposition without a
hearing pursuant to Rule 7.2(d) of the Local Rules of
Practice of the United States District Court for the District
of Hawaii. ECF No. 27. After careful consideration of the
Motion, the declaration, exhibits, and the record established
in this action, the Court FINDS AND RECOMMENDS that the
Motion be GRANTED IN PART AND DENIED IN PART.
complaint alleges violations for direct copyright
infringement and contributory copyright infringement pursuant
to 17 U.S.C. § 101, et seq., against Defendant Alex
Stewart. ECF No. 18 ¶¶ 51-64. According to
Plaintiff, Defendant, without Plaintiff's permission or
consent, duplicated and distributed “Mr. Church,
” a motion picture whose registered copyright is owned
by Plaintiff. ECF No. 18 ¶¶ 6-50; ECF Nos. 18-1;
18-2; 18-3. Plaintiff alleges that Defendant used a
peer-to-peer file sharing protocol to reproduce, distribute,
display, or perform “Mr. Church.” Id.
Plaintiff alleges that this conduct has infringed
Plaintiff's exclusive rights in “Mr. Church”
in violation of 17 U.S.C. § 106(1) and (3)-(5).
Id. ¶¶ 9-15. Through early discovery,
Plaintiff has been able to identify the subscriber to the
Internet Service Provider (ISP) for the IP address used on
the date of the alleged infringement. Id. Plaintiff
alleges that “[t]he named subscriber stated that his
son [Defendant] Alex Stewart was likley responsible”
for the alleged infringement. Id. ¶ 12. A copy
of the summons was left at Defendant's residence with
Lawrence Stewart on March 28, 2017. ECF No. 22. After
Defendant failed to appear, the Clerk of Court entered
default against Defendant on June 21, 2017. See ECF
No. 25. The present Motion followed seeking default judgment,
a permanent injunction, and attorneys' fees and costs.
ECF No. 26 at 1-2.
judgment may be entered for the plaintiff if the defendant
has defaulted by failing to appear and the plaintiff's
claim is for a “sum certain or for a sum which can by
computation be made certain[.]” Fed.R.Civ.P. 55(b)(1),
(2). The granting or denial of a motion for default judgment
is within the discretion of the court. Haw.
Carpenters' Trust Funds v. Stone, 794 F.2d 508,
511-12 (9th Cir. 1986). Entry of default does not entitle the
non-defaulting party to a default judgment as a matter of
right. Valley Oak Credit Union v. Villegas, 132 B.R.
742, 746 (9th Cir. 1991). Default judgments are ordinarily
disfavored, and cases should be decided on their merits if
reasonably possible. Eitel v. McCool, 782 F.2d 1470,
1472 (9th Cir. 1986). The court should consider the following
factors in deciding whether to grant a motion for default
(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.
Id. at 1471-72.
default “the factual allegations of the complaint,
except those relating to the amount of damages, will be taken
as true.” TeleVideo Sys., Inc. v. Heidenthal,
826 F.2d 915, 917-18 (9th Cir. 1987) (quoting Geddes v.
UnitedFin. Group, 559 F.2d 557, 560 (9th Cir.
1977)). The allegations in the complaint regarding liability
are deemed true, but the plaintiff must establish the relief
to which it is entitled. Fair Hous. of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). Also,
“necessary facts not contained in the pleadings, and
claims which are legally insufficient, are not ...