United States District Court, D. Hawaii
AMENDED  FINDINGS AND RECOMMENDATION TO
GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR
DEFAULT JUDGMENT AGAINST DEFENDANT REALVOICE LLC
Richard L. Puglisi, United States Magistrate Judge.
the Court is Plaintiff Vincent Khoury Tylor's Motion for
Default Judgment Against Defendant REALVOICE LLC, a Tennessee
Limited Liability Company, dba REALVOICE
("RealVoice"), filed on September 22, 2017
("Motion"). ECF No. 14. RealVoice was served with a
copy of the Motion, but did not file an opposition or
otherwise respond. See ECF No. 14-7. 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. 13. After careful consideration of the Motion, the
declarations, exhibits, and the record established in this
action, the Court FINDS AND RECOMMENDS that the Motion be
GRANTED IN PART and DENIED IN PART.
owns the copyrights to the following ten photographic works:
A-19 Snorkel Hawaii; O-01 Waikiki-Pink boat ORIGINAL VERSION;
A-20 Surfer at Twilight; A-01 Hammock NEW; B-18 Green Beach;
A-12-B LaniKai-girl; B-07 Akaka Falls Hor; Oahu Beachs01;
Venice Falls, Maui-1; and, Awapuhi Trail. The copyrights for
seven of these photographic works were registered in
Plaintiff's name with the United States Copyright Office
as VA 1-696-555, effective December 17, 2009, and
supplemented by form VA 1-432-741, effective June 20, 2011;
and, VA 1-759-562, effective January 29, 2011. ECF No. 1
¶ 14. The copyright to the three remaining photographic
works were assigned to Plaintiff and were registered with the
United States Copyright Office as VA 1-761-524, effective
February 8, 2011; VA 1-892-225, effective November 7, 2013;
and VA 1-892-225, which is pending registration. Id.
¶ 15. The Court refers to the ten photographic works
collectively as "Copyrighted Works." See
ECF Nos. 1-1, 1-2. Plaintiff licenses the Copyrighted Works
for commercial and other uses. ECF No. 1 ¶ 17.
used the Copyrighted Works on its commercial Facebook,
Pinterest, Instagram, and Google pages without
Plaintiff's authority or permission. Id. ¶
18. Plaintiff does not include in his Complaint any
allegations regarding the dates of the alleged infringement.
See id. Plaintiff's counsel sent a letter to
RealVoice regarding the infringement on February 7, 2017.
Idi. ¶ 19.
filed his Complaint against RealVoice on June 16, 2017,
alleging claims for copyright infringement and violations of
the Digital Millennium Copyright Act ("DMCA") based
on Defendant's use of the Copyrighted Works on their
website and their alteration of Plaintiff's copyright
management information on the Copyrighted Works. Id.
¶¶ 23-40. The Clerk entered default against
RealVoice pursuant to Rule 55(a) of the Federal Rules of
Civil Procedure on August 1, 2017. ECF No. 12. The present
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 established by
default." Cripps v. Life Ins. Co. of N. Am.,
980 F.2d 1261, 1267 (9th Cir. 1992) (citing Panning v.
Lavine, 572 F.2d 1386, 1388 (9th Cir. 1978)).
considering the merits of default judgment, the Court has an
affirmative obligation to determine whether or not it has
subject matter jurisdiction over this action and personal
jurisdiction over RealVoice. See In re Tuli, 172
F.3d 707, 712 (9th Cir. 1999) ("To avoid entering a
default judgment that can later be successfully attacked as
void, a court should determine whether it has the power,
i.e., the jurisdiction, to enter the judgment in the first
place."). First, the Court has subject matter
jurisdiction over Plaintiff's claims for copyright
infringement and violations of the PMCA. See 17
U.S.C. §§ 501, 1202; 28 U.S.C. §§ 1331,
1338(a). Second, the Court has personal jurisdiction over
RealVoice because it was served through its registered agent
on June 26, 2017. ECF No. 10; Fed.R.Civ.P. 4(h)(1)(B). The
Court finds that it has both subject matter and personal