United States District Court, D. Hawaii
ORDER ADOPTING IN PART AND REJECTING IN PART THE
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART
PLAINTIFF COOK PRODUCTIONS, LLC'S MOTION FOR ENTRY OF
DEFAULT JUDGMENT AGAINST DEFENDANT ALEX STEWART
C. KAY ' SR. UNITED STATES DISTRICT
reasons set forth below, the Court adopts in part and rejects
in part the Findings and Recommendation to Grant in Part and
Deny in Part Plaintiff Cook Productions, LLC's Motion for
Entry of Default Judgment Against Defendant Alex Stewart, ECF
No. 29, issued by Magistrate Richard L. Puglisi on August 22,
January 25, 2017, Plaintiff Cook Productions, LLC
(“Plaintiff”) filed a complaint against 15
unknown Doe defendants alleging claims for direct and
contributory copyright infringement. Compl., ECF No. 1.
Plaintiff is the owner of a copyrighted motion picture
entitled “Mr. Church”
(“Work”). Id. ¶ 10; First Am.
Compl. ¶ 17, ECF No. 18. Plaintiff alleges that each
defendant used BitTorrent, a peer-to-peer file sharing
protocol, to reproduce, distribute, display or perform the
copyrighted Work at issue in violation of 17 U.S.C. §
106(1), (3)-(5). First Am. Compl. ¶¶ 22-65, ECF No.
filed a First Amended Complaint on May 5, 2017 naming Alex
Stewart specifically as a defendant. Id.
¶¶ 5, 9-15. Through early discovery, Plaintiff
appears to have been able to identify Mr. Stewart based on
the Internet Protocol address (“IP address”) at
which the alleged infringement was observed. Id.
¶¶ 5, 9-12. Plaintiff alleges that activity at that
IP address shows that 12 titles, including the copyrighted
Work at issue, were consistently downloaded and/or
distributed. Id. ¶ 10. Plaintiff also alleges
that the subscriber of that IP address, Lawrence Stewart,
stated that his son, defendant Alex Stewart, “was
likely responsible for this activity.” Id.
of the summons was left at Mr. Stewart's residence with
his father on March 28, 2017. ECF No. 22. On June 16, 2017
Plaintiff's counsel spoke with Mr. Stewart's father,
who stated that he had given the documents to his son
“quite a while ago.” Declaration of Counsel
¶ 5, ECF No. 24-1. After Mr. Stewart failed to appear,
the Clerk of Court entered default against him on June 21,
2017, pursuant to Plaintiff's request. ECF Nos. 24-25. On
July 7, 2017, Plaintiff filed the instant motion for default
judgment against Mr. Stewart seeking statutory damages,
injunctive relief, and attorneys' fees. Motion at 1-2,
ECF No. 26 (“Motion”). Mr. Stewart did not oppose
August 22, 2017, Judge Puglisi entered Findings and
Recommendation to Grant in Part and Deny in Part
Plaintiff's Motion. ECF No. 29 (“F&R”).
After determining the Court had subject matter jurisdiction
and personal jurisdiction, Judge Puglisi recommended that
default judgment be entered in Plaintiff's favor against
Mr. Stewart. Id. at 4-9. However, he recommended
denying Plaintiff's requests for a permanent injunction
and for an order requiring Mr. Stewart to destroy all illegal
copies of the Work and the software used for the alleged
infringement. Id. at 10-12, 16. Judge Puglisi also
recommended awarding statutory damages, but only in the
amount of $750, rather than the $7, 500 requested.
Id. at 12-13, 17. Finally, Judge Puglisi recommended
denying Plaintiff's request for attorneys' fees.
Id. at 14-17.
filed objections to the F&R on August 25, 2017. ECF No.
30 (“Obj.”). Mr. Stewart did not file a response
to the objections.
district court may accept those portions of the findings and
recommendation that are not objected to if it is satisfied
that there is no clear error on the face of the record.
United States v. Bright, Civ. No. 07-00311 ACK-KSC,
2009 WL 5064355, at *3 (D. Haw. Dec. 23, 2009); Stow v.
Murashige, 288 F.Supp.2d 1122, 1127 (D. Haw. 2003). If a
party objects to a magistrate judge's findings or
recommendation, the district court must review de novo those
portions to which the objections are made and “may
accept, reject, or modify, in whole or in part, the findings
or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C); see also United States v.
Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (“[T]he district court must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” (emphasis
de novo standard, a district court “review[s] the
matter anew, the same as if it had not been heard before, and
as if no decision previously had been rendered.”
Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th
Cir. 2006). The district court need not hold a de novo
hearing; however, it is the court's obligation to arrive
at its own independent conclusion about those portions of the
magistrate judge's findings or recommendation to which a
party objects. United States v. Remsing, 874 F.2d
614, 618 (9th Cir. 1989).
within the district court's discretion to “receive
further evidence, recall witnesses, or recommit the matter to
the magistrate judge with instructions.” Local Rule
74.2. Pursuant to Local Rule 74.2, this Court “may
consider the record developed before the magistrate judge,
” but the Court must make its “own determination
on the basis of that record.”
parties have not objected to Judge Puglisi's finding that
Plaintiff is entitled to default judgment against Mr. Stewart
or to the award of only $750 in statutory damages to
Plaintiff. See generally F&R; Obj. The Court
does not find clear error in the F&R regarding these
findings and adopts them for the reasons stated therein.
objects to three findings in the F&R: (1) that Plaintiff
is not entitled to a permanent injunction; (2) that the
request for an order that Mr. Stewart destroy all copies of
the infringing work and file-sharing software be denied; and
(3) that Plaintiff's request for an award of
attorneys' fees be denied. Obj. at 2. The Court agrees
with Plaintiff's objections and accordingly ADOPTS IN
PART and REJECTS IN PART Magistrate Judge Puglisi's
Findings and Recommendation.
Plaintiff Correctly Asserts That It Is Entitled to a
Permanent Injunction and Order
Copyright Act authorizes a court to “grant temporary
and final injunctions on such terms as it may deem reasonable
to prevent or restrain infringement of a copyright.” 17
U.S.C. § 502(a). In addition, the Act authorizes a court
to “order the destruction or other reasonable
disposition” of all copies of the copyrighted work
“found to have been made or used in violation of the
copyright owner's ...