Wild v. Peterson

          ORDER

          KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         Presently 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.)^[1]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.)

         After 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.

         BACKGROUND

         Plaintiff 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. ¶¶ 17-21.)

         Based 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.)

         LEGAL STANDARD

         Pursuant 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 factors:

(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 merits.

Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).

         As a 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.

         DISCUSSION

         Appropriateness of the Entry of Default Judgment under the Eitel Factors

         1. Factor One: Possibility of Prejudice to Plaintiff

         The 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.

         2. Factors Two and Three: The Merits of Plaintiff’s Substantive Claim ...