United States District Court, D. Arizona
Hydentra HLP Int. Limited, Plaintiff,
Porn69.org, et al., Defendants.
G. CAMPBELL, District Judge.
the Clerk of the Court entered default against Defendants Tan
Bao Anh Pham, Nguyen Le Tran, and Henry Jay (Doc. 30),
Plaintiff Hydentra HLP Int. Limited ("Hydentra")
moved for default judgment. Doc. 34. The Court will grant the
March 12, 2015, Plaintiff initiated this action against a
group of four pornographic websites (collectively
"Porn69"), asserting claims for copyright
infringement based on Porn69's publication of certain
videos copyrighted by Plaintiff. Doc. 1. Plaintiff filed a
motion requesting leave to conduct discovery to determine the
owners and operators of Porn69. Doc. 8. The Court granted the
motion. Doc. 11. Thereafter, Plaintiff amended its complaint
to add as Defendants the owners and operators of Porn69: Tan
Bao Anh Pham, Nguyen Le Tran, and Henry Jay. Doc. 17.
Defendant Tan Bao Anh Pham was personally served with the
first amended complaint. Doc. 22. With leave of court,
Plaintiff served Defendants Nguyen Le Tran and Henry Jay by
email. Docs. 23, 26.
failed to appear after receiving service, and on January 21,
2016, the Clerk of the Court entered default. Doc. 30.
Plaintiff now moves for default judgment, seeking (1) $12,
600, 000 in statutory damages, (2) $24, 917 in attorney's
fees and costs, (3) and a permanent injunction enjoining
Defendants and their respective agents, servants, and
employees from infringing Plaintiff's copyrighted works.
Doc. 34-1 at 17.
Whether Plaintiff is Entitled to Default Judgment.
deciding whether to grant default judgment, the Court may
consider: (1) the merits of the claim, (2) the sufficiency of
the complaint, (3) the amount of money at stake, (4) the
possibility of prejudice to the plaintiff, (5) the
possibility of a dispute concerning material facts, (6)
whether default was due to excusable neglect, and (7) the
policy favoring a decision on the merits. Eitel v.
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In
applying the Eitel factors, "the factual
allegations of the complaint, except those relating to the
amount of damages, will be taken as true." Geddes v.
United Fin. Group, 559 F.2d 557, 560 (9th Cir. 1977).
first two factors favor a default judgment. A copyright
infringement claim must show that (1) the plaintiff owns a
valid copyright and (2) the defendant infringed the
copyright. See Funky Films, Inc. v. Time Warner
Entm't Co., L.P., 462 F.3d 1072, 1076 (9th Cir.
2006). Plaintiff alleges that it owns the copyright to
certain erotic films and Defendants displayed 84 of these
films. Doc. 17, Â¶Â¶ 28, 58-61, 72-73. Plaintiff substantiates
these allegations through declarations. Docs. 34-2, Â¶Â¶ 8, 23;
34-3, Â¶Â¶ 19, 24. Plaintiff has advanced a meritorious claim
for copyright infringement.
third factor disfavors entry of default judgment. Plaintiff
seeks over $12 million - a significant sum of money. Rule 55
does not limit the amount of money that can be awarded in a
default judgment, and courts have entered default judgments
for even greater sums. See, e.g., State St. Bank
& Trust Co. v. Inversiones Errazuriz Limitada, 246
F.Supp.2d 231, 233 (S.D.N.Y. 2002) (refusing to vacate
default judgment for $140 million), aff'd, 374
F.3d 158 (2d Cir. 2004). Nonetheless, courts are ordinarily
reluctant to enter a default judgment when the stakes are
fourth factor favors entry of default judgment. Plaintiff has
been injured by websites hosted in Arizona (Doc. 34-3, Â¶ 26),
and has brought suit in Arizona. If Plaintiff cannot recover
here, it is doubtful it can recover anywhere.
"Plaintiff will likely be without other recourse"
if its motion is not granted. PepsiCo, Inc. v. Cal. Sec.
Cans, 238 F.Supp.2d 1172, 1177 (C.D. Cal. 2002).
fifth factor favors entry of default judgment. Plaintiff has
provided declarations indicating that Plaintiff owned
copyrights to certain erotic films and Defendants infringed
upon these copyrights. There is nothing to indicate that
these facts can be reasonably disputed.
sixth factor favors a default judgment. Although Defendants
were properly served with the summons and the complaint, they
made no effort whatsoever to respond to Plaintiff's
claims or participate in this proceeding. Further, Plaintiff
presents evidence that Defendants stopped using Porn69 upon
being served with this lawsuit, and established new websites
where they continued to display Plaintiff's works without
authorization. Doc. 34-3, Â¶Â¶ 38-39. This indicates that
Defendants were aware of this lawsuit and that their failure
to participate was willful, not negligent.
seventh factor disfavors entry of default judgment.
"Cases should be decided upon their merits whenever
reasonably possible." Eitel, 782 F.2d at 1472.
This concern is alleviated somewhat by the fact that
Plaintiff presents a strong case and would likely prevail if
the matter were litigated on the merits. "Moreover,
Defendant[s'] failure to answer Plaintiff[s] Complaint
makes a ...