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Bodyguard Productions, Inc. v. Doe

United States District Court, D. Hawaii

February 21, 2019

BODYGUARD PRODUCTIONS, INC., Plaintiff,
v.
DOE 1 dba showboxappdownload.com; KEITH NORTON, Defendants.

          ORDER ADOPTING THE MAGISTRATE JUDGE'S FINDINGS AND RECOMMENDATION TO GRANT IN PART AND DENY IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST DEFENDANT KEITH NORTON

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         Before the Court is Plaintiff Bodyguard Productions, Inc's (“Plaintiff”) Written Objections to Magistrate Judge's Findings and Recommendations Granting in Part and Denying in Part Plaintiff's Motion for Default Judgment Against Defendant Keith Norton, filed December 17, 2018. Doc. No. 34. After careful consideration of the Magistrate Judge's Findings and Recommendation to Grant in Part and Deny in Part Plaintiff's Motion for Default Judgment Against Defendant Keith Norton (“F&R”), Doc. No. 33, the Objections, and the applicable law, the Court ADOPTS the F&R in its entirety for the reasons set forth below.

         BACKGROUND

         Plaintiff, the registered copyright owner of the motion picture “The Hitman's Bodyguard” (“the Work”), initiated this action against Defendants, alleging copyright infringement. Plaintiff alleges that Defendant Keith Norton (“Defendant”), a Maui resident, used the BitTorrent client software application Show Box to duplicate and distribute the Work. Compl. at ¶¶ 20-24.

         On August 27, 2018, Plaintiff filed a Rule 55(a) Request for Clerk to Enter Default Against Keith Norton. Doc. No. 16. The Clerk entered default against Defendant the next day. Doc. No. 17.

         On November 13, 2018, Plaintiff filed a Motion for Default Judgment Against Defendant Keith Norton. Doc. No. 28.

         On December 12, 2018, the Magistrate Judge issued his F&R, wherein he recommended that default judgment enter against Defendant. Doc. No. 33 at 5-8. He also recommended that the request for an order that Defendant destroy all copies of the Work and file-sharing software be granted; that Plaintiff be awarded $750 in statutory damages; and that Plaintiff be awarded $303 in costs. Id. at 10-11, 13. Relating to the present Objections, the Magistrate Judge determined that a permanent injunction is inappropriate because

Plaintiff provides no evidence that Defendant Norton currently possesses the infringed work, or any illegally downloaded works. Plaintiff provides no evidence that Defendant Norton currently possesses or uses any file-sharing software. Plaintiff has not provided evidence that Defendant Norton is committing an ongoing infringement. Therefore, Plaintiff has not established irreparable harm, lack of adequate remedies at law, or that the balance of hardships favors Plaintiff.

Id. at 10. In addition, the Magistrate Judge recommended an award of $250 in attorneys' fees, reduced from Plaintiff's $3, 962.50 request. Id. at 13.

         The present Objections followed. Defendant did not file a response to the Objections.

         LEGAL STANDARD

         Magistrate judges may be assigned to prepare findings and recommendations of pretrial matters dispositive of a claim or defense. Fed.R.Civ.P. 72(b)(1). Parties may object to a magistrate judge's findings and recommendation. Id.; Local Rule 74.2. “The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3); Local Rule 74.2; 28 U.S.C. § 636(b)(1). Under a de novo standard, there is no deference to the lower court's ruling; rather, the Court “freely consider[s] the matter anew, as if no decision had been rendered below.” Dawson v. Marshall, 561 F.3d 930, 933 (9th Cir. 2009) (alteration in original); Freeman v. DirecTV, Inc., 457 F.3d 1001, 1004 (9th Cir. 2006).

         DISCUSSION

         Plaintiff objects to two of the Magistrate Judge's findings: (1) that it is not entitled to a permanent injunction and (2) that its request for attorneys' fees and tax be limited to $250. The Court addresses each in turn.

         A. Plaintiff's Entitlement to a Permanent Injunction

         In its Motion for Default Judgment, Plaintiff requested a permanent injunction barring Defendant from directly and contributorily infringing Plaintiff's copyright in the Work and ordering Defendant to refrain from knowingly and willfully using the internet for copying or downloading the Work in the future. Doc. No. 28 at 14. Plaintiff argues that the Magistrate Judge improperly determined that it provided no evidence that Defendant currently possesses the work, any illegally downloaded work, the file-sharing software, or is committing ongoing infringement. Plaintiff asserts that it is entitled to a permanent injunction because (1) the infringement caused by the Show Box app is by its nature irreparable; (2) it was unable to determine if Defendant is continuing to infringe the Work because of his refusal to communicate; (3) there is a high likelihood that continuing violations of its copyright would occur if Defendant is not enjoined; (4) the default ...


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