United States District Court, E.D. California
ORDER GRANTING PLAINTIFF'S APPLICATION FOR ENTRY
OF DEFAULT JUDGMENT AGAINST DEFENDANTS (ECF NOS. 68,
pending before the Court is Plaintiff Terri Haynes
Roach's (“Plaintiff”) application for entry
of default judgment against Defendants Tate Publishing &
Enterprises, LLC, Tate Music Group, and Richard Tate
matter was set for oral argument on November 1, 2017. Cameron
Sehat appeared telephonically for Plaintiff. Defendants did
not appear at the hearing. Having considered the moving
papers, the Court's file, and the arguments at the
November 1, 2017 hearing, the Court issues the following
complaint in this action was filed on June 15, 2015. (ECF No.
1.) Plaintiff's complaint brings a single cause of action
against Defendants for copyright infringement. Plaintiff, an
individual residing in Fresno, California, is a fiction
writer who authored a work entitled “A Special
Gift” (“the book”). (Compl. ¶ 11.)
Plaintiff alleges that Defendants sold the book online to
various customers throughout the country. (Compl. ¶ 12.)
Plaintiff has not received compensation for these sales and
Defendants did not have permission to sell the book. (Compl.
action was stayed on August 28, 2015, for the parties to
engage in arbitration. (ECF No. 24.) On March 20, 2017, the
stay of the action was lifted after Defendants failed to pay
the arbitration costs preventing the arbitration from
proceeding forward. (ECF No. 51.) On April 19, 2017, defense
counsel's motion to withdraw as counsel in this action
was granted and Defendants Tate Publishing & Enterprises,
LLC, and Tate Music Group were ordered to retain counsel in
this matter and all defendants were to file an answer to the
complaint on or before May 22, 2017. Defendants did not
comply with the April 19, 2017 order.
12, 2017, default was entered against Defendants Richard Tate
and Tate Publishing & Enterprises, LLC. (ECF No 61.) On
June 15, 2017, default was entered against Defendant Tate
Music Group. (ECF No. 65.)
September 29, 2017, Plaintiff filed a motion for default
judgment against Defendants. (ECF No. 68.) On October 11,
2017, Plaintiff filed a certificate of service for the motion
for default judgment. (ECF No. 69.)
to Rule 55 of the Federal Rules of Civil Procedure, unless a
claim is for a sum certain or a sum that can be made certain
by computation, a party must apply to the court for a default
judgment. Fed.R.Civ.P. 55(b). Upon entry of default, the
complaint's factual allegations regarding liability are
taken as true. Geddes v. United Financial Group, 559
F.2d 557, 560 (9th Cir. 1977); Garamendi v. Henin,
683 F.3d 1069, 1080 (9th Cir. 2012). However, the
complaint's factual allegations relating to the amount of
damages are not taken as true. Geddes, 559 F.2d at
560. Accordingly, the amount of damages must be proven at an
evidentiary hearing or through other means. Microsoft
Corp. v. Nop, 549 F.Supp.2d 1233, 1236 (E.D. Cal. 2008).
“[N]ecessary facts not contained in the pleadings, and
claims which are legally insufficient, are not established by
default.” Cripps v. Life Ins. Co. of North
America, 980 F.2d 1261, 1267 (9th Cir. 1992). Pursuant
to Federal Rule of Civil Procedure 54(c), “[a] default
judgment must not differ in kind from, or exceed in amount,
what is demanded in the pleadings.”
of default judgment is not a matter of right and it is within
the discretion of the court whether default judgment should
be entered. Shanghai Automation Instrument Co. v.
Kuei, 194 F.Supp.2d 995, 999 (N.D. Cal. 2001); Eitel
v. McCool, 782 F.2d 1470, 1471 (9th Cir. 1986). The
Ninth Circuit has set forth the following factors for the
court to consider in exercising its discretion:
(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, 782 F.2d at 1471-72.
current application, Plaintiff seeks default judgment and
requests monetary damages, a permanent injunction,
attorneys' fees, and costs.
Subject Matter Jurisdiction
courts are courts of limited jurisdiction and their power to
adjudicate is limited to that granted by Congress. U.S v.
Sumner, 226 F.3d 1005, 1009 (9th Cir. 2000). Pursuant to
28 U.S.C. § 1331, federal courts have original over
“all civil actions arising under the Constitution,
laws, or treaties of the United States. “A case
‘arises under' federal law either where federal law
creates the cause of action or where the vindication of a
right under state law necessarily turns on some construction
of federal law.” Republican Party of Guam v.
Gutierrez, 277 F.3d 1086, 1088 (9th Cir. 2002) (internal
punctuation omitted) (quoting Franchise Tax Bd. v.
Construction Laborers Vacation Trust, 463 U.S. 1, 8-9
(1983) (citations omitted)). “[T]he presence or absence
of federal-question jurisdiction is governed by the
‘well-pleaded complaint rule, ' which provides that
federal jurisdiction exists only when a federal question is
presented on the face of the plaintiff's properly pleaded
complaint.” Republican Party of Guam, 277 F.3d
at 1089 (citations omitted).
brings this action alleging violations of 17 U.S.C. §
504(c)(2). As the claim in this action arises under federal
law, federal question jurisdiction exists.
Court previously determined that Plaintiff has alleged
sufficient facts in the complaint to make a prima facie
showing of personal jurisdiction. (ECF No. 24.)
Service of Process
of the Federal Rules of Civil Procedure sets forth the
requirements for the manner of service on an individual.
Federal Rule of Civil Procedure 12(b)(5) states that a party
may assert the defense of insufficient service of process by
Rule of Civil Procedure 12(h) states that A party waives any
defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described
in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment
allowed by Rule 15(A)(1) as a matter of course.
Fed. R. Civ. P. 12(h).
Rule of Civil Procedure 12(g)(2) states that “[e]xcept
as provided in Rule 12(h)(2) or (3), a party that make a
motion under this rule must not make another motion under
this rule raising a defense or objection that was available
to the party but omitted from its earlier motion.”
Defendants filed a motion to dismiss and did not raise the
defense of insufficient service of process. Therefore, the
Court finds that even if Defendants were insufficiently
served, they waived any defense of insufficient service of
process. See Fed.R.Civ.P. 12(h).
The Eitel Factors Weigh in Favor of Default
discussed below, consideration of the Eitel factors
weigh in favor of granting default judgment in this instance
Possibility of Prejudice to Plaintiff
first factor weighs in favor of entry of default judgment. If
default judgment is not entered, Plaintiff is effectively
denied a remedy for the violations alleged in this action
unless Defendants appear again. While Defendants did
initially appear, Defendants have subsequently not complied
with the Court's orders and have stopped defending this
action. Defendants may never appear again to defend this
action. Therefore, this factor weighs heavily in favor of
granting default judgment.
The Merits of Plaintiff's Substantive Claims and
Sufficiency of Complaint
court is to evaluate the merits of the substantive claims
alleged in the complaint as well as the sufficiency of the
complaint itself. In doing so, the court looks to the
complaint to determine if the allegations contained within
are sufficient to state a claim for the relief sought.
Danning v. Lavine, 572 F.2d 1386, 1388 (9th Cir.
1978). “[F]acts which are not established by the
pleadings of the prevailing party, or claims which are not
well-pleaded, are not binding and cannot support the
judgment.” Alan Neuman Prods., Inc. v.
Albright, 862 F.2d 1388, 1392 (9th Cir. 1988) (finding
it error to award default judgment where the complaint was
insufficient to state a claim).
brings a claim of copyright infringement under 17 U.S.C.
§ 501, which allows the owner of a copyright to
institute an action against an infringer of that copyright.
To state a claim of copyright infringement, a plaintiff must
prove “ownership of a copyright and a copying of
protectable expression beyond the scope of a license.”
MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d
511, 517 (9th Cir. 1993) (internal quotation marks omitted)
(quoting S.O.S., Inc. v. Payday, Inc., 886 F.2d
1081, 1085 (9th Cir. 1989)). “To prove a claim of
direct copyright infringement, a plaintiff must show that he
owns the copyright and that the defendant himself violated
one or more of the plaintiff's exclusive rights under the
Copyright Act.” Ellison v. Robertson, 357 F.3d
1072, 1076 (9th Cir. 2004).
Copyright Act defines “copies” as:
material objects, other than phonorecords, in which a work is
fixed by any method now known or later developed, and from
which the work can be perceived, reproduced, or otherwise
communicated, either ...