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Inc v. Lau

United States District Court, D. Hawaii

March 16, 2018

ME2 Productions, Inc. Plaintiff,
v.
Kammy Lau et al., Defendants.

          FINDINGS AND RECOMMENDATION TO PARTIALLY GRANT PLAINTIFF'S THIRD MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT KAMMY LAU

          Kevin S.C. Chang United States Magistrate Judge.

         Plaintiff ME2 PRODUCTIONS, INC's (hereafter: “Plaintiff”), Third Motion for Default Judgment Against Defendant KAMMY LAU (“Defendant”), filed herein on December 7, 2017, [Doc. #56], having come on for hearing before the Court, the Honorable Kevin S.C. Chang, Magistrate Judge presiding, with Kerry S. Culpepper appearing for Plaintiff and there being no appearance and no written submission by or on behalf of the Defendant, the Court, after full consideration of Plaintiff's motion and the entire record herein, RECOMMENDS that the motion be GRANTED in part.

         This is an action for permanent injunctive relief and damages against Defendant for copyright infringement in violation of the United States Copyright Act, 17 U.S.C. 101 §§ et. seq.

         This Court has subject matter jurisdiction over this action pursuant to 17 U.S.C. §§ 101, et. seq., 28 U.S.C. § 1331, and 28 U.S.C. § 1338. Venue is proper in this District pursuant to 28 U.S.C. § 1391(b) and (c) and 28 U.S.C. § 1400(a).

         Plaintiff is a Nevada corporation that owns the copyright for the motion picture Mechanic: Resurrection (hereafter: the “Work”) under registration number PA 1-998-057. [Doc. # 47, ¶¶ 6, 8 and 23, Doc. # 47-2].

         Plaintiff commenced this action by filing its Complaint on April 5, 2017 against 20 Doe individuals [Doc. # 1] after discovering that Defendant had illegally downloaded the Work using the BitTorrent protocol. [Id. ¶ ¶ 11-39].

         BitTorrent is an interactive “peer-to-peer” (“P2P”) file transfer technology protocol whereby users can: (a) make media files (including entire movies) stored on each user's computer available for copying by other users or peers; (b) search for files that are stored on other users' computers; and (c) transfer exact copies of those files from one computer to another via the Internet. [Id. ¶ ¶ 27-39].

         Thereafter, Plaintiff ascertained the true identities of the individuals who illegally downloaded and distributed the Work by subpoenaing Hawaiian Telcom, the Internet Service Provider of Defendant. [Doc. # 11].

         Plaintiff's Complaint was then amended to specifically identify the Defendant. [Doc. # 30]. Plaintiff effected service on Defendant with a summons on September 3, 2017, making her answer due on September 24, 2017. See Fed.R.Civ.P. 12(a)(1)(A). [Doc. #32].

         Defendant is the individual at IP address 72.234.113.150 who infringed the Plaintiff's copyrighted Work and seeded and distributed the work on 2016-11-23 00:42:01 (UTC).

         Using the BitTorrent client application “Popcorn Time”, Defendant illegally republished and distributed copies of the Plaintiff's copyrighted work through the use of the unique hash number to an unknown number of other individuals over the Internet. This contention is undisputed.

         When Defendant failed to appear, plead, or otherwise defend, Plaintiff filed a Rule 55(a) request for the entry of default on October 3, 2017 [Doc. # 37], which was promptly granted by the Court. [Docs. # 38, 39].

         On October 30, 2017, this Court granted Plaintiff's motion for leave to file a Second Amended Complaint to merely correct the spelling of Defendant's name. [Doc. #46].

         Plaintiff filed the Second Amended Complaint on October 30, 2017. [Doc. #47]. A copy of the second amended complaint was sent to Defendant's last known address on November 9, 2017 [Doc. #48] making her answer due on November 23, 2017. See Fed.R.Civ.P. 15(a)(3). [Doc. #53].

         When Defendant once again failed to appear, plead, or otherwise defend, Plaintiff filed a Rule 55(a) request for the entry of default on December 5, 2017 [Id.], which was promptly granted by the Court. [Doc. #54].

         The Complaint alleges claims for copyright infringements, in violation of the United States Copyright Act, 17 U.S.C. § 101 et. seq., for ...


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