United States District Court, D. Arizona
Hydentra HLP Int. Limited, Plaintiff,
Tubenn.com, et al., Defendants.
Douglas L. Rayes United States District Judge.
the Court is Plaintiff Hydentra HLP International
Limited's Motion for Default Judgment Against Defendants
Danh Manh Nguyen and Thai Nguyen. (Doc. 37.) For the
following reasons, the motion is granted.
brought this action against various pornographic websites
asserting claims for copyright infringement based on the
publication of numerous videos copyrighted by Plaintiff.
(Doc. 1.) Plaintiff moved for leave to conduct limited
discovery to determine the owners and operators of the
offending websites, which the Court granted in part. (Docs.
9, 12.) Based on this early discovery, Plaintiff amended its
complaint to name Danh Manh Nguyen and Thai Nguyen as
Defendants. (Docs. 18, 28.) Thereafter, Plaintiff moved for
leave to serve Defendants, who are located in Vietnam, via
email. (Doc. 19.) The Court granted the motion and Plaintiff
served Defendants via email on October 26, 2015. (Docs. 21,
25-26.) Since then, Defendants have failed to appear. On
January 26, 2016, the Clerk of the Court entered default.
(Doc. 33.) Plaintiff now moves for default judgment pursuant
to Fed.R.Civ.P. 55. (Doc. 37.) Plaintiff seeks $8, 100, 000
in statutory damages, $22, 045 in attorneys' fees and
costs, and a permanent injunction enjoining Defendants and
their respective agents, servants, and employees from
infringing upon Plaintiff's copyrighted works.
determining whether to enter a default judgment, the court
should consider factors such as:
(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 v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
1986). In applying these factors, “the well-pleaded
factual allegations of the complaint are taken as true,
except for those allegations relating to damages.”
Philip Morris USA, Inc. v. Castworld Prod., Inc.,
219 F.R.D. 494, 498 (C.D. Cal. 2003).
Entitlement to Default Judgment
first three Eitel factors favor entry of default
judgement. “A plaintiff bringing a claim for copyright
infringement must demonstrate (1) ownership of a valid
copyright, and (2) copying of constituent elements of the
work that are original.” Funky Films, Inc.
v. Time Warner Entm't Co., L.P., 462 F.3d 1072, 1076
(9th Cir. 2006) (internal quotations and citation omitted).
Plaintiff alleges that it owns the copyright to numerous
videos, and that Defendants displayed 18 of these copyrighted
videos utilizing five different websites, amounting to 54
separate instances of infringement. (Doc. 28, ¶¶
44-47.) Plaintiff substantiates these allegations with
declarations from Jason Tucker, Director of Battleship Stance
LLC, an intellectual property management and anti-piracy
investigation and enforcement company, and Jon Krogman,
President of Hydrentra HLP International Limited and its
subsidiaries. (Docs. 37-2, 37-3.) Thus, Plaintiff has
sufficiently alleged meritorious copyright infringement
claims. Moreover, this Court likely is the only forum in
which Plaintiff may obtain relief. Defendants are located in
Vietnam, but the offending websites are hosted here in
Arizona. (Doc. 28, ¶ 10.) Plaintiff will be prejudiced
if a default judgment is not granted because it “will
likely be without other recourse for recovery.”
PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.Supp.2d 1172,
1177 (C.D. Cal. 2002).
fourth factor weighs against entry of default judgment.
Plaintiff seeks $8, 100, 000 in statutory damages. Although
Rule 55 does not limit the amount that can be recovered
through a default judgment, the substantial size of
Plaintiff's requested damage award is cause for
fifth and sixth factors both weigh in favor of entry of
default judgment. Plaintiff substantiates its copyright
infringement claims with the declarations of Tucker and
Krogman, and nothing suggests that these facts are subject to
reasonable dispute. Additionally, Defendants were served with
the summons and complaint but have made no effort to respond
or otherwise participate in this action. Nothing suggests
that Defendants' default was the result of excusable
the seventh factor generally weighs against entry of default
judgment because “[c]ases should be decided upon their
merits whenever reasonably possible.” Eitel,
782 F.2d at 1472. Defendants' failure to participate in
this litigation, however, “makes a decision on the
merits impractical, if not impossible.”
PepsiCo, 238 F.Supp.2d at 1177. ...