United States District Court, E.D. California
ALEXANDER L. WILD, Plaintiff,
DEAN PETERSON, Defendant.
KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE
pending before the court is plaintiff Alexander L. Wild d/b/a
Alex Wild Photography’s motion for entry of a default
judgment against defendant Dean Peterson d/b/a Certified Pest
Management, who is the only named defendant in this action.
(ECF No. 13.)Plaintiff’s motion was initially
filed on March 22, 2016. (Id.) On April 8, 2016,
after defendant failed to oppose plaintiff’s motion in
accordance with Local Rule 230, the court vacated the hearing
on the motion and requested supplemental briefing from
plaintiff. (ECF No. 15.) Subsequently, plaintiff timely filed
its supplemental briefing, and although provided with an
additional opportunity to oppose plaintiff’s motion and
supplemental briefing, defendant again failed to appear or
respond to plaintiff’s motion. (ECF No. 16.)
carefully considering the written briefing, the court’s
record, and the applicable law, the court GRANTS IN PART
plaintiff’s motion on the terms outlined in this order.
is a well-known insect photographer, who sells or licenses
his photographs to others wishing to make use of the
photographs for advertisements and pecuniary gain.
(See Complaint, ECF No. 1 [“Compl.”]
¶ 13.) Plaintiff took the original image at issue in
this action (the “Image”), has ownership of the
Image, and registered the Image with the United States
Copyright Office under Registration Number VAu699-806.
(Id. ¶¶ 14-16, Ex. 1.) According to
plaintiff, defendant willfully used, without
plaintiff’s consent, the Image on defendant’s
business website from March 15, 2015, through at least the
filing of the complaint, for commercial benefit in promoting
defendant’s pest control business. (Id.
on the above, plaintiff commenced this action alleging a
single claim of copyright infringement under 17 U.S.C.
§§ 501 et seq., against defendant on December 15,
2015. (ECF No. 1.) Plaintiff’s complaint seeks
statutory damages, injunctive relief, attorneys’ fees,
and costs. (Id.) After defendant was properly served
with process and failed to appear in the action, the Clerk of
Court, upon plaintiff’s request, entered
defendant’s default. (ECF Nos. 8-10.) The instant
motion for default judgment followed. (ECF No. 13.)
to Federal Rule of Civil Procedure 55, default may be entered
against a party against whom a judgment for affirmative
relief is sought who fails to plead or otherwise defend
against the action. See Fed.R.Civ.P. 55(a). However,
“[a] defendant’s default does not automatically
entitle the plaintiff to a court-ordered judgment.”
PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172,
1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792
F.2d 915, 924-25 (9th Cir. 1986)). Instead, the decision to
grant or deny an application for default judgment lies within
the district court’s sound discretion. Aldabe v.
Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making
this determination, the court considers the following
(1) the possibility of prejudice to the plaintiff, (2) the
merits of 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 decisions on the
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
general rule, once default is entered, well-pled factual
allegations in the operative complaint are taken as true,
except for those allegations relating to damages.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915,
917-18 (9th Cir. 1987) (per curiam) (citing Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977)
(per curiam)); accord Fair Housing of Marin v.
Combs, 285 F.3d 899, 906 (9th Cir. 2002). In addition,
although well-pled allegations in the complaint are admitted
by a defendant’s failure to respond, “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)); accord DIRECTV, Inc. v.
Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (stating
that a defendant does not admit facts that are not well-pled
or conclusions of law); Abney v. Alameida, 334
F.Supp.2d 1221, 1235 (S.D. Cal. 2004) (“[A] default
judgment may not be entered on a legally insufficient
claim”). A party’s default does not establish the
amount of damages. Geddes, 559 F.2d at 560.
of the Entry of Default Judgment under the Eitel Factors
Factor One: Possibility of Prejudice to Plaintiff
first Eitel factor considers whether the plaintiff
would suffer prejudice if default judgment is not entered,
and such potential prejudice to the plaintiff militates in
favor of granting a default judgment. See PepsiCo,
Inc., 238 F.Supp.2d at 1177. Here, plaintiff would face
prejudice if the court did not enter a default judgment,
because plaintiff would be without another recourse against
defendant. Accordingly, the first Eitel factor
favors the entry of a default judgment.
Factors Two and Three: The Merits of Plaintiff’s
Substantive Claim ...