United States District Court, D. Hawaii
ME2 PRODUCTIONS, INC., et al. Plaintiffs,
TRAVIS PAGADUAN, Defendant.
FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY
IN PART PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT AGAINST
DEFENDANT TRAVIS PAGADUAN
Kenneth J. Mansfield, United States Magistrate Judge.
October 12, 2017, Plaintiffs ME2 Productions, Inc., Venice
PI, LLC, and LHF Productions, Inc. (collectively,
“Plaintiffs”) filed their Motion for Default
Judgment Against Defendant Travis Pagaduan
(“Motion”). See ECF No. 33. Defendant
Travis Pagaduan did not file an opposition to the Motion.
Court held a hearing on the Motion on November 21, 2017.
See ECF No. 40. Kerry S. Culpepper, Esq., appeared
on behalf of Plaintiffs. Defendant Travis Pagaduan did not
appear at the hearing. See Id. After carefully
considering the Motion, arguments of counsel, and the record
in this case, the Court FINDS and RECOMMENDS that the
district court GRANT IN PART AND DENY IN PART the Motion as
set forth below.
March 24, 2017, Plaintiff ME2 Productions, Inc.
(“ME2”) filed the Complaint against 20 doe
defendants, asserting claims for copyright infringement and
contributory copyright infringement in violation of 17 U.S.C.
§ 101, et seq (“Copyright Act”).
See ECF No. 1. Through early discovery, Plaintiffs
obtained the identity of several doe defendants. See
ECF No. 9; ECF No. 16 at ¶¶ 25, 33, 41. For
example, Plaintiffs identified doe defendant 18 as Defendant
Travis Pagaduan (“Defendant”). ECF No. 16 at
¶ 33. Thus, on September 1, 2017, Plaintiffs filed the
First Amended Complaint, naming Defendant, as well as
Defendants George Lucas, Kevin Okazaki, and nine doe
defendants. See ECF No. 16.
allege that (1) ME2 owns the copyright for the film,
“Mechanic: Resurrection, ” (2) Plaintiff Venice
PI, LLC (“Venice”) owns the copyright for the
film, “Once Upon a Time in Venice, ” and (3)
Plaintiff LHF Productions, Inc. (“LHF”) owns the
copyright for the film, “London Has Fallen.”
See Id. at ¶¶ 8, 12, 16. The Court
collectively refers to the three subject films as, the
“Works.” Plaintiffs allege that that Defendant
used the BitTorrent, a peer-to-peer file-sharing protocol, to
reproduce, distribute, display, or perform the Works in
violation of the Copyright Act. See Id. at
¶¶ 89-92. Plaintiffs also allege that Defendant
previously used the BitTorrent protocol to infringe on
LFH's copyrights as to “London Has Fallen, ”
which was the subject of a separate lawsuit, LHF
Productions, Inc. v. Pagaduan, CV 16-00437 JMS-RLP
(“LHF I”). Id. at ¶ 35.
served Defendant on September 7, 2017. See ECF No.
22. After Defendant failed to appear or otherwise respond to
the First Amended Complaint, the Clerk of Court entered
default against Defendant on October 5, 2017. See
ECF No. 29. Plaintiffs filed the instant Motion on October
judgment may be entered for the plaintiff if the defendant
has defaulted by failing to appear or otherwise defend
against the plaintiff's complaint, 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(a), (b). Whether to grant or deny a motion
for default judgment is within the discretion of the court.
Haw. Carpenteres' 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. In re Villegas, 132 B.R. 742, 746
(B.A.P. 9th Cir. 1991). Default judgments are ordinarily
disfavored, and cases should be decided on the merits if
reasonably possible. Eitel v. McCool, 782 F.2d 1470,
1472 (9th Cir. 1986). Courts may consider the following
factors in deciding a motion for default judgment
(collectively, “Eitel factors”):
(1) the possibility of prejudice to the plaintiff, (2) the
merits of the 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 decision on the
Eitel, 782 F.2d at 1471-72 (citation omitted).
deciding a motion for default judgment, “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.
Grp., 559 F.2d 557, 560 (9th Cir. 1977)). Although
allegations in the complaint regarding liability are taken as
true, 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 Danning v. Lavine, 572
F.2d 1386, 1388 (9th Cir. 1978)).
considering the merits of the Motion, the Court has an
affirmative obligation to determine whether it has subject
matter jurisdiction over this action and personal
jurisdiction over Defendant. 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
Court finds that it has subject matter jurisdiction over the
claims in Plaintiffs' First Amended Complaint pursuant to
28 U.S.C. §§ 1331, 1338, and the Copyright Act. The
Court also finds that it has personal jurisdiction over
Defendant based on Plaintiffs' allegation that Defendant
is a resident of the State of Hawai'i and the fact that
Defendant was served on September 7, 2017, at his residence
in Hawai'i. See ECF No. 16 at ¶¶ 4,
 20; ECF No.
22. Accordingly, the Court turns to the merits of the Motion.
its determination that jurisdiction is proper, the Court next
analyzes whether default judgment is appropriate under the
Possibility of Prejudice to Plaintiffs
first Eitel factor considers whether Plaintiffs
would suffer prejudice if default judgment is not entered.
See PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d
1172, 1177 (C.D. Cal. 2002). Here, absent entry of default
judgment, Plaintiffs would be without recourse for recovery.
Accordingly, the first Eitel factor favors entry of
Merits of Plaintiffs' Substantive Claims
the second Eitel factor, the Court considers the
merits of Plaintiffs' substantive claims. As noted above,
the allegations in the complaint are taken as true for
purposes of determining liability. See TeleVideo Sys.,
Inc., 826 F.2d at 917-18; Fair Hous. of Martin,
285 F.3d at 906. Taking Plaintiffs' allegations in the
First Amended Complaint as true, the Court finds that
Plaintiffs have established that they are entitled to default
judgment against Defendant on all claims.
have made a prima facie showing of copyright infringement and
contributory copyright infringement by Defendant. A plaintiff
asserting a copyright infringement claim must prove
“(1) ownership of the copyright; and (2) infringement -
that the defendant copied protected elements of the
plaintiff's work.” Three Boys Music Corp. v.
Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Regarding
Plaintiffs' claim for copyright infringement, Plaintiffs
allege: (1) they own and have registered their respective
copyrighted films, i.e., the Works; (2) Defendant
reproduced and distributed the copyrighted works without
Plaintiffs' authorization; and (3) Defendants'
actions damaged Plaintiffs. See ECF No. 16 at
Plaintiffs' claim for contributory copyright
infringement, the Ninth Circuit has recognized that
“[o]ne who, with knowledge of the infringing activity,
induces, causes or materially contributes to the infringing
conduct of another may be liable as a
‘contributory' [copyright] infringer.”
Ellison v. Robertson, 357 F.3d 1072, 1076 (9th Cir.
2004) (quotation marks and citation omitted) (emphasis and
brackets in original). The Ninth Circuit has
“interpreted the knowledge requirement for contributory
copyright infringement to include both those with actual
knowledge and those who have reason to know of
direct infringement. Id. (citation omitted). Here,
Plaintiffs allege that, by participating in the BitTorrent
protocol, Defendant caused or materially contributed to the
direct infringement of Plaintiffs' copyright by other
defendants. See Id. at ¶¶ 99-100.
Plaintiffs also allege that Defendant knew or should have
known that other BitTorrent users were directly infringing on
Plaintiffs' Works. See Id. at ¶ 101. The
Court finds that, although Plaintiffs' allegations are
minimal, they are nevertheless sufficient to state a claim
for contributory copyright infringement. See Ellison v.
Robertson, 357 F.3d 1072, 1076 (9th Cir. 2004).
Accordingly, the merits of Plaintiffs' substantive claims
weigh in favor of default judgment.
Sufficiency of the First Amended Complaint
reasons discussed above, the Court finds that the allegations
in the First Amended Complaint are sufficiently pled.
Accordingly, the sufficiency of the First Amended Complaint
weighs in favor of default judgment.
Sum of Money at Stake
the fourth Eitel factor, Court “must consider
the amount of money at stake in relation to the seriousness
of the Defendant's conduct.” PepsiCo,
Inc., 238 F.Supp.2d at 1176 (citing Eitel, 782
F.2d at 1472). Under the Copyright Act, a plaintiff may elect
to seek actual damages attributable to the infringement or
statutory damages of “not less than $750 or more than
$30, 000.” 17 U.S.C. § 504(b), (c). In the Motion,
Plaintiffs seek statutory damages in the total amount of $7,
500, as well as $2, 913.21 for attorneys' fees and costs.
See ECF No. 33 at 2. Except for the minimal amount
of money Plaintiffs lost and Defendant saved by not
purchasing or renting the infringed Works, Plaintiffs did not
suffer economic loss nor did Defendant profit from the
infringement. The Court finds that Plaintiffs' request is
extreme compared to the conduct alleged. Accordingly, this
factor weighs against default judgment.
Possibility of Dispute Concerning Material Facts
Court finds that the fifth factor, regarding the possibility
of dispute concerning material factors, weighs in favor of
default judgment. As noted above, the Court takes the
well-pled allegations of the First Amended Complaint as true,
except those relating to the amount of damages. TeleVideo
Sys., Inc., 826 F.2d at 917-18. Despite being given a
fair opportunity to defend against Plaintiffs' claims,
Defendant has not done so. Although Plaintiffs personally
served Defendant with the First Amended Complaint, Defendant
has failed to make an appearance in this action or otherwise