United States District Court, S.D. California
RICHARD N. BELL, an individual, Plaintiff,
STEPHEN JAMES BARBER; JETSETZ, INC.; and DOES 1-100, ROE Corporations I-X, inclusive, Defendants.
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
Honorable Dana M. Sabraw United States District Judge.
before the Court is Plaintiff Richard N. Bell's motion
for default judgment. Defendants Stephen James Barber and
Jetsetz, Inc. did not file an opposition. For the following
reasons, Plaintiff's motion is granted.
Richard Bell is an attorney and professional photographer.
(Compl. ¶ 5.) Defendant Stephen Barber does business in
the Southern District of California and is the owner and
registered agent of Defendant Jetsetz, Inc. (Id.;
Mem. of P. & A. in Supp. of Mot. (“Mot.”) at
March 2000, Plaintiff took a photograph of the Indianapolis
Skyline (“Indianapolis Photo”) and published it
on the World Wide Web on August 29, 2000. (Compl.
¶¶ 6, 9.) On August 4, 2011, Plaintiff registered
the Indianapolis Photo with the United States Copyright
Office. (Id. ¶ 1; Ex. C.) Plaintiff uses the
photo to promote his photography business. (Compl. ¶
25, 2018, Plaintiff discovered through “Google
Images” that Defendants had published the Indianapolis
Photo on their travel website at
(Id. ¶ 17; Ex. B.) Defendants did not disclose
the source of the Indianapolis Photo and claimed in their
sub-page for user policy that Jetsetz, Inc. owns the
copyrights of all photographs displayed on their website.
(Compl. ¶¶ 18, 22; Jetsetz,
https://www.jetsetz.com/user-policy (last visited September
11, 2019) (“[A]ll content included on this Website,
including … photographs … are intellectual
property and copyrighted works of Jetsetz.com and/or its
third-party Suppliers.”).) Defendants did not pay for
or obtain proper authorization to use Plaintiff's
copyrighted photograph. (Id. ¶ 20, 23.)
on June 29, 2018, Plaintiff filed a complaint against
Defendants for copyright infringement,  and subsequently
effected service on Defendants. After Defendants failed to
respond to the complaint, Plaintiff filed a request for entry
of default, which the Clerk of Court granted on February 19,
2019. Because Defendants have failed to answer or defend this
case, Plaintiff now seeks an entry of default judgment
against Defendants. Specifically, Plaintiff seeks an award of
statutory damages of $150, 000 under 17 U.S.C. § 504,
costs in the amount of $687.14 under 17 U.S.C. § 505,
and injunctive and declaratory relief.
may grant a default judgment upon application of a party.
Fed.R.Civ.P. 55(b)(2). Granting or denying a default judgment
under Rule 55(b) is within the court's discretion.
Eitel v. McCool, 782 F.2d 1470, 1471 (9th Cir.
1986). In making this determination, a court considers the
following factors, commonly referred to as the Eitel
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.” Id. at 1471-72. When
weighing these factors, the well-pleaded factual allegations
of the complaint are taken as true, except for those
allegations relating to damages. See Fed. R. Civ. P.
8(b)(6); TeleVideo Sys., Inc. v. Heidenthal, 826
F.2d 915, 917-18 (9th Cir. 1987).
Possibility of Prejudice to the Plaintiff
the first Eitel factor, Plaintiff would suffer
prejudice absent default judgment because he would be denied
the right to judicial resolution of his claims and be without
other recourse for recovery. ...