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Tylor v. Realvoice LLC

United States District Court, D. Hawaii

October 20, 2017

VINCENT KHOURY TYLOR, Plaintiff,
v.
REALVOICE LLC; JOHN DOES 1-10; JANE DOES 1-10; DOE CORPORATIONS 1-10; DOE PARTNERSHIPS 1-10; AND DOE ASSOCIATIONS 1-10, Defendants.

          AMENDED [1] FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT REALVOICE LLC [2]

          Richard L. Puglisi, United States Magistrate Judge.

         Before 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.

         BACKGROUND

         Plaintiff 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.

         RealVoice 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.

         Plaintiff 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 Motion followed.

         ANALYSIS

         Default 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 judgment:

(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.

         On 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)).

         A. Jurisdiction

         Before 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 jurisdiction.

         B. E ...


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