Searching over 5,500,000 cases.

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.

Roach v. Tate Publishing & Enterprises

United States District Court, E.D. California

November 2, 2017



         Currently 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 (collectively, “Defendants”).[1]

         This 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 order.



         The 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. ¶ 13.)

         The 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.

         On June 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.)

         On 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.)



         Pursuant 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.”

         Entry 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.



         In the current application, Plaintiff seeks default judgment and requests monetary damages, a permanent injunction, attorneys' fees, and costs.

         A. Jurisdiction

         1. Subject Matter Jurisdiction

         Federal 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).

         Plaintiff 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.

         2. Personal Jurisdiction

         The Court previously determined that Plaintiff has alleged sufficient facts in the complaint to make a prima facie showing of personal jurisdiction. (ECF No. 24.)

         3. Service of Process

         Rule 4 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 motion.

         Federal 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).

         Federal 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.”

         Here, 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).

         B. The Eitel Factors Weigh in Favor of Default Judgment

         As discussed below, consideration of the Eitel factors weigh in favor of granting default judgment in this instance against Defendants.

         1. Possibility of Prejudice to Plaintiff

         The 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.

         2. The Merits of Plaintiff's Substantive Claims and Sufficiency of Complaint

         The 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).

         Plaintiff 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).

         The 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 ...

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.