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Hydentra HLP Int. Limited v. Tubenn.Com

United States District Court, D. Arizona

October 26, 2016

Hydentra HLP Int. Limited, Plaintiff,
v., et al., Defendants.


          Douglas L. Rayes United States District Judge.

         Before 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.


         Plaintiff 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. (Id.)


         When 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).


         I. Entitlement to Default Judgment

         The 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).

         The 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 hesitation.

         The 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 neglect.

         Finally, 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. ...

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