United States District Court, D. Hawaii
FINDINGS AND RECOMMENDATION TO GRANT IN PARTY AND
DENY IN PART PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT
JUDGMENT AGAINST DEFENDANT FERDINAND PUMARAS
RICHARD L. PUGLISI UNITED STATES MAGISTRATE JUDGE
the Court is Plaintiff ME2 Production, Inc.'s Motion for
Entry of Default Judgment Against Defendant Ferdinand
Puamaras, filed on July 12, 2017 (“Motion”). ECF
No. 32. 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. 33. 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 Ferdinand
Puamaras. ECF No. 20 ¶¶ 55-69. According to
Plaintiff, Defendant, without Plaintiff's permission or
consent, duplicated and distributed “Mechanic:
Resurrection, ” a motion picture whose registered
copyright is owned by Plaintiff. ECF No. 20 ¶¶
7-54; ECF Nos. 20-1; 20-2; 20-3. Plaintiff alleges that
Defendant used a peer-to-peer file sharing protocol to
reproduce, distribute, display, or perform “Mechanic:
Ressurection.” Id. Plaintiff alleges that this
conduct has infringed Plaintiff's exclusive rights in
“Mechanic: Resurrection” in violation of 17
U.S.C. § 106(1) and (3)-(5). Id. ¶¶
11-15. 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 the
subscriber at the IP address where the alleged infringement
occurred “opened the account for the benefit of
Defendant Ferdinand Pumaras.” Id. ¶ 12.
Defendant was served on May 23, 2017. ECF No. 26. After
Defendant failed to appear, the Clerk of Court entered
default against Defendant on July 7, 2017. See ECF
No. 31. The present Motion followed seeking default judgment,
a permanent injunction, and attorneys' fees and costs.
ECF No. 32 at 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.
United Fin. 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 ...