Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Af Holdings LLC v. Trevor Noordman

February 1, 2013

AF HOLDINGS LLC, PLAINTIFF,
v.
TREVOR NOORDMAN, DEFENDANT.



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

ORDER

Presently pending before the undersigned is plaintiff's motion for default judgment, filed on January 7, 2013, and originally noticed for hearing on February 7, 2013. (Dkt. No. 18.)*fn1 On January 14, 2013, defendant, who is proceeding without counsel, filed a response to plaintiff's motion for default judgment. (Dkt. No. 24.) In light of defendant's pro se status, the court liberally construed defendant's response as a request to set aside the clerk's entry of default, and required plaintiff to file either a statement of non-opposition to defendant's request or an opposition brief clarifying why such relief would not be appropriate in light of applicable Ninth Circuit precedent. (Dkt. No. 25.) On January 30, 2013, plaintiff filed a timely opposition to defendant's request to set aside the entry of default. (Dkt. No. 28.)

After considering the parties' filings and appropriate portions of the record, and for the reasons stated below, the court grants defendant's request to set aside the clerk's entry of default and denies plaintiff's motion for default judgment as moot.*fn2

BACKGROUND

In this action, plaintiff alleges that defendant Trevor Noordman infringed on plaintiff's copyrighted video entitled Popular Demand (the "Video") by using an online peer-to-peer media distribution system, a "BitTorrent" file sharing protocol, to reproduce and distribute the Video to numerous, unidentified third parties. (See generally First Amended Complaint, Dkt. No. 11, ¶¶ 1, 3-4.) Plaintiff asserts claims of copyright infringement and contributory infringement in regards to its copyrighted Video. (Dkt. No. 11.) Plaintiff filed its original complaint on June 20, 2012, naming John Doe as the defendant. (Dkt. No. 1.) After the court granted plaintiff's request for expedited discovery upon internet service providers, plaintiff was allegedly able to discover defendant's identity through defendant's IP address of 98.242.5.13 and file a first amended complaint substituting the name "Trevor Noordman" in place of "John Doe." (Dkt. Nos. 1, 6, 7, 11.)

A proof of service of summons indicates that defendant was personally served with process on December 3, 2012. (Dkt. No. 16-2.) On January 2, 2013, plaintiff requested that the Clerk of Court enter defendant's default, which the Clerk subsequently entered on January 7, 2013. (Dkt. Nos. 16, 17.) That same day, on January 7, 2013, plaintiff filed the instant motion for default judgment and served a copy of the motion on defendant via first-class mail. (Dkt. No. 18.) Plaintiff seeks a judgment for at least $150,000 in statutory damages plus $2,865 in attorneys' fees and costs, for a total of $152,865. (Id.)

One week later, on January 14, 2013, defendant filed his response to the motion for default judgment, which, as noted above, the court liberally construes as a request to set aside the clerk's entry of default. (Dkt. No. 24.) In particular, defendant's response stated:

I was recently informed that there was a request to enter default in my case. I wanted to report that I had no idea what court this case was filed in, and I also responded to the servings I received from [plaintiff's counsel] Brett L. Gibbs 15 days after I received it (Dec, 3rd) given the 21 day limit. I responded via e-mail to Brett L.

Gibbs and asked him what court the case would be heard in because the papers served to me had no court name aside from "Eastern District." Mr. Gibbs quickly responded that it was in the Sacramento division. I continued to ask him if any other trial, or court dates were arranged and was given no response. In this letter is the e-mail conversation between me and Mr. Gibbs. I was informed by a woman via the courts main office phone number to write this letter and send it to the address. (Dkt. No. 24 at 1.) The e-mail chain attached to defendant's filing shows that, after defendant was served with process on December 3, 2012, defendant contacted plaintiff's counsel on December 18, 2012, indicating that defendant "wanted to respond to your guys summonings for a civil case" and inquiring whether the case was venued in Fresno, Sacramento, or Redding. (Id. at 2.) After plaintiff's counsel responded that the case was venued in the Sacramento division, defendant again contacted plaintiff's counsel on December 21, 2012 to inquire when defendant should expect to receive trial dates from the court. (Id.)

DISCUSSION

Federal Rule of Civil Procedure 55 governs the entry of default by the clerk and the subsequent entry of default judgment by either the clerk or the district court. In relevant part, Rule 55(a) provides:

(a) Entering a Default. When a party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend, and that failure is shown by affidavit or otherwise, the clerk must enter the party's default.

Fed. R. Civ. P. 55(a).*fn3

Federal Rule of Civil Procedure 55(c) provides that "[t]he court may set aside an entry of default for good cause...." The party seeking relief from the entry of default bears the burden of showing good cause to set aside the entry of default. See Franchise Holding II, LLC v. Huntington Rests. Group, Inc., 375 F.3d 922, 926 (9th Cir. 2004). A court considers three factors in determining whether good cause exists: "(1) whether [the party seeking to set aside the default] engaged in culpable conduct that led to the default; (2) whether [it] had [no] meritorious defense; or (3) whether reopening the default judgment would prejudice the other party." United States v. Signed Personal ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.