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Bell v. Barber

United States District Court, S.D. California

September 16, 2019

RICHARD N. BELL, an individual, Plaintiff,
v.
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.

         Pending 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.

         I.

         BACKGROUND

         Plaintiff 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 2.)

         In 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. ¶ 12.)

         On May 25, 2018, Plaintiff discovered through “Google Images” that Defendants had published the Indianapolis Photo on their travel website at http://www.jetsetz.com/uploads/destinations/jetsetz-cheap-travel-deals-to-indianapolis.jpg. (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.)

         Thereafter, on June 29, 2018, Plaintiff filed a complaint against Defendants for copyright infringement, [1] 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.

         II.

         DISCUSSION

         A. Default Judgment

         A court 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).

         i. Possibility of Prejudice to the Plaintiff

         Under 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. ...


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