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Af Holdings LLC v. Parry Buck

January 3, 2013

AF HOLDINGS LLC, PLAINTIFF,
v.
PARRY BUCK, DEFENDANT.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

ORDER

In general, plaintiff AF Holdings LLC ("plaintiff") alleges that defendant Parry Buck ("defendant") infringed on plaintiff's copyrighted video entitled Popular Demand (the "Video").*fn1 (See generally First Am. Compl. ¶¶ 1, 3-4.)

Presently before the court is defendant's Motion to Set Aside Clerk's Entry of Default ("Motion to Set Aside") (Mot. to Set Aside, Dkt. No. 23), filed in response to plaintiff's Motion for Default Judgment (Mot. for Default J., Dkt. No. 20).*fn2 Defendant filed an "Addendum" in support of his Motion to Set Aside. (Addendum, Dkt. No. 28). Defendant also filed correspondence from his medical provider (the "Letter") in support of his Motion to Set Aside. (Letter, Dkt. No. 29.) Plaintiff filed an opposition to the Motion to Set Aside (Opp'n, Dkt. No. 27) and an opposition to the Addendum (Opp'n to Addendum, Dkt. No. 30).

The undersigned has considered the papers and the appropriate portions of the record and, for the reasons stated below, the undersigned orders that defendant's Motion to Set Aside is granted, and that, accordingly, plaintiff's Motion for Default Judgment is denied.

I. BACKGROUND A. Procedural History

Plaintiff filed its original complaint on April 23, 2012, naming John Doe as the defendant. (Compl., Dkt. No. 1.)

After requesting expedited discovery upon third party internet service providers, plaintiff was allegedly able to discover plaintiff's identity through his IP address of 76.125.61.233. Upon such discovery, plaintiff filed a First Amended Complaint, substituting the name "Parry Buck" in place of "John Doe." (First Am. Compl., Dkt. No. 10 ¶ 4.)

Defendant was personally served with process on October 12, 2012. (Proof of Service, Dkt. No. 15.)

On November 12, 2012, plaintiff requested that default be entered by the Clerk of Court against defendant. (Req. for Entry of Default, Dkt. No. 17.) On November 13, 2012, the Clerk of the Court entered defendant's default. (Clerk's Cert. of Entry of Default, Dkt. No. 18.) In entering default, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendant was duly served with process yet failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Id.)

On November 16, 2012, plaintiff filed its motion for default judgment against defendant and served a copy of the motion on defendant via first class mail. (Proof of Service, Mot. for Default J. at 10.) The matter was set for hearing on December 20, 2012.

On December 7, 2012, defendant filed his Motion to Set Aside. (Mot. to Set Aside, Dkt. No. 23.) Plaintiff opposed the motion. (Opp'n, Dkt. No. 27.) Given these filings, the undersigned vacated the hearing date for the Motion for Default Judgment.*fn3

B. Summary Of Plaintiff's Allegations

Plaintiff asserts claims of copyright infringement, contributory infringement, and negligence in regards to its copyrighted Video. (See generally First Am. Compl.) Plaintiff alleges that it is the "exclusive holder of the relevant rights" with respect to the Video.*fn4 (Id. ¶ 2.)

Plaintiff alleges that defendant used an online peer-to-peer media distribution system, a "BitTorrent" file sharing protocol, to download the Video and then distribute the Video to numerous, unidentified third ...


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