Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 1 of 6
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF ARIZONA
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`No. CV-16-02644-PHX-DLR
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`ORDER AND DEFAULT JUDGMENT
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`LHF Productions, Inc., a Nevada
`corporation,
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`v.
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`Frank and Jane Doe Grubb; David and Jane
`Doe Benavidez; Coralyn and Jane Doe
`Schultz; Shawn and Jane Doe Burnish; and
`Dale and Jane Doe Fuller, all Arizona
`residents.
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`Plaintiff,
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`Defendants.
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`Plaintiff LHF Productions has moved for default judgment against Defendants
`Frank and Marie Grubb pursuant to Federal Rule of Civil Procedure 55(b). (Doc. 42.)
`No response has been filed and the time for filing one has passed. For reasons stated
`below, default judgment is appropriate.
`I. Background
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`LHF owns the copyright to the 2016 action thriller “London Has Fallen.” LHF
`alleges that Defendants unlawfully copied and distributed the movie using a network
`called a “BitTorrent protocol,” where users can turn media into digital files and transfer
`them to their computers and share them with others online. LHF brought a copyright
`infringement suit against the then-unknown defendants in August 2016. (Doc. 1.) The
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`Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 2 of 6
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`amended complaint filed three months later identifies Defendants by name and asserts
`claims for direct and contributory copyright infringement. (Doc. 14 ¶¶ 49-63.) LHF
`seeks injunctive relief, actual or statutory damages, and an award of attorneys’ fees and
`costs. (Id. at 13-14.)
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`LHF served process on Frank Grubb and his wife Marie on November 14, 2016.
`(Doc. 20.) Following the transfer of the case on January 9, 2017, the Court directed LHF
`to file a status report given that the Grubbs were served with process but no answer or
`application for default had been filed. (Docs. 28, 32.) LHF subsequently filed an
`application, and the Clerk entered the Grubbs’ default on January 20. (Docs. 35, 36.)
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`One month later, the Court gave LHF fourteen days to file a motion for default
`judgment or show good cause for an extension of time to do so. (Doc. 38.) LHF filed the
`present motion on March 9. (Doc. 42.)
`II. Default Judgment
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`After default is entered by the clerk, the district court may enter default judgment
`pursuant to Rule 55(b). The court’s “decision whether to enter a default judgment is a
`discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Although the
`court should consider and weigh relevant factors as part of the decision-making process,
`it “is not required to make detailed findings of fact.” Fair Housing of Marin v. Combs,
`285 F.3d 899, 906 (9th Cir. 2002).
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`The following factors may be considered in deciding whether default judgment is
`appropriate: (1) the possibility of prejudice to the plaintiff, (2) the merits of the claims,
`(3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility
`of factual disputes, (6) whether default is due to excusable neglect, and (7) the policy
`favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.
`1986). In considering the merits and sufficiency of the complaint, the court accepts as
`true the complaint’s well-pled factual allegations, but the plaintiff must establish all
`damages sought in the complaint. See Geddes v. United Fin. Group, 559 F.2d 557, 560
`(9th Cir. 1977).
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`Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 3 of 6
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`A. Possible Prejudice to Plaintiff
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`The first Eitel factor weighs in favor of default judgment. The Grubb Defendants
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`failed to respond to the complaint or otherwise appear in this action despite being served
`with the complaint, the application for default, and the motion for default judgment. If
`default judgment is not granted, LHF “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 prejudice to LHF in this regard supports the entry of default judgment.
`B. Merits of the Claims and Sufficiency of the Complaint
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`The second and third Eitel factors favor default judgment where, as in this case,
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`the complaint sufficiently states a plausible claim for relief under the pleading standards
`of Rule 8. See id. at 1175; Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978).
`A review of the complaint’s well-pled allegations shows that LHF has stated a plausible
`claim for relief against the Grubb Defendants.
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`Under the Copyright Act, 17 U.S.C. § 106, the owner of a copyright has exclusive
`rights to reproduce, display, and distribute the copyrighted work. Infringement occurs
`when a person violates any of the exclusive rights of the copyright owner as provided
`by [§] 106.” 17 U.S.C. § 501(a). To state valid copyright infringement claims, plaintiffs
`must allege two elements: “(1) they must show ownership of the allegedly infringed
`material and (2) they must demonstrate that the alleged infringers violate at least one
`exclusive right granted to copyright holders under 17 U.S.C. § 106.” LGS Architects, Inc.
`v. Concordia Homes of Nev., 434 F.3d 1150, 1156 (9th Cir. 2006).
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`LHF alleges in the amended complaint that it owns the copyright for the movie
`London Has Fallen and attaches a valid certificate of copyright registration. (Docs. 14 ¶¶
`26-28, 14-1 at 4-5.) “Registration is prima facie evidence of the validity of a copyright.”
`Three Boys Music Corp. v. Bolton, 212 F.3d 477, 488-89 (9th Cir. 2000) (citing 17
`U.S.C. § 410(c)). LHF further alleges that the Grubb Defendants downloaded an
`unauthorized copy of the movie on the internet using the “peer-to-peer” file transfer
`protocol called BitTorrent. (Doc. 14 ¶¶ 7, 16, 21.) LHF claims that Defendants’ conduct
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`Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 4 of 6
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`constitutes direct and contributory infringement and LHF has suffered damages as a
`result. (Id. ¶¶ 49-57.)
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`Because the well-pled factual allegations of the complaint are deemed true upon
`default, see Geddes, 559 F.2d at 560, LHF has shown that Defendants infringed upon
`LHF’s copyrighted work. The second and third Eitel factors weigh in favor of default
`judgment.
`C. Amount of Money at Stake
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`Under the fourth Eitel factor, the Court considers the amount of money at stake
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`in relation to the seriousness of the defendants’ conduct. See PepsiCo, 238 F. Supp. 2d at
`1176. Here, LHF seeks statutory damages in the amount of $15,000.00. (Doc. 42 at 8.)
`This amount is reasonable given Defendants’ misconduct and the harm caused to LHF
`and the film industry by movie piracy. See LHF Productions, Inc. v. Watkins, No. 2:16-
`cv-01196-SRB (D. Ariz. Dec. 13, 2016) (granting default judgment to LHF in the amount
`of $15,000 for copyright infringement of its movie). Indeed, in enacting the Digital Theft
`Deterrence Act of 1999, 17 U.S.C. § 504(c)(2), Congress increased the amount of
`potential statutory damages for willful infringement to $150,000.00. LHF seeks only ten
`percent of this amount.1
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`LHF seeks only $430.00 in attorneys’ fees given that it recently filed a similar
`motion for default judgment in the Watkins case. (Doc. 42 at 12.) The Court finds the
`requested attorneys’ fee award and costs in the amount of $460.40 to be reasonable and
`appropriate. See 17 U.S.C. § 505 (the court may award costs and fees to the prevailing
`party in a copyright infringement case). The fourth Eitel factor weighs in favor of a
`default judgment.
`D.
`Possible Dispute Concerning Material Facts
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`Given the sufficiency of the complaint and Defendants’ default, “no genuine
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`1 It is worth noting that the ability of a defendant to pay the damages award is not
`relevant because an award of damages is meant to compensate the plaintiff and deter
`future misconduct. See Geddes, 559 F.2d at 560.
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`Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 5 of 6
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`dispute of material facts would preclude granting [LHF’s] motion.” PepsiCo, 238 F.
`Supp. 2d at 1177.
`E. Whether Default Was Due to Excusable Neglect
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`The Grubb Defendants were properly served with process in this matter. (Doc.
`20.) They also were served with copies of the application for default and the present
`motion for default judgment. (Docs. 35 at 3, 42 at 15.) It therefore “is unlikely that
`Defendant[s’] failure to answer and the resulting default was a result of excusable
`neglect.” Gemmel v. Systemhouse, Inc., No. CIV 04-187-TUC-CKJ, 2008 WL 65604, at
`*5 (D. Ariz. Jan. 3, 2008). This Eitel factor, like the other five discussed above, weighs
`in favor of default judgment.
`F. Policy Favoring a Decision on the Merits
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`The last factor always weighs against default judgment given that cases “should be
`decided on their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. The
`mere existence of Rule 55(b), however, “indicates that this preference, standing alone, is
`not dispositive.” PepsiCo, 238 F. Supp. 2d at 1177 (citation omitted).
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`Moreover, Defendants’ failure to answer the complaint “makes a decision on the
`merits impractical, if not impossible.” Gemmel, 2008 WL 65604, at *5. Stated
`differently, it is difficult to reach the merits when the opposing party is absent. Because
`LHF has asserted plausible claims for relief to which Defendants have failed to respond,
`the policy encouraging decisions on the merits does not weigh against the granting of
`default judgment in this case.
`III. Conclusion
`Having reviewed the record and considered the Eitel factors as a whole, the Court
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`concludes that the entry of default judgment against the Grubb Defendants is appropriate
`under Rule 55(b).2
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`2 The claims against the Benavidez, Barnish, and Fuller Defendants have been
`dismissed. (Docs. 26, 34, 37.) LHF has settled with the Schultz Defendants and the
`claims against them will be dismissed no later than April 10, 2017. (Docs. 40, 41.) After
`entry of this order, and after dismissal of the remaining Schultz Defendants, the Clerk is
`directed to terminate this action without further order from the Court.
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`Case 2:16-cv-02644-DLR Document 43 Filed 04/06/17 Page 6 of 6
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`IT IS ORDERED that Plaintiff LHF Productions, Inc.’s motion for default
`judgment against Defendants Frank Grubb and Marie Grubb (Doc. 42) is GRANTED.
`Judgment is entered in favor of Plaintiff and against the Grubb Defendants as follows:
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`1.
`In the amount of $15,000.00 for statutory damages on the copyright
`infringement claims asserted in counts one and two of the amended complaint.
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`2.
`In the amount of $430.00 in attorneys’ fees and $460.40 for costs.
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`3.
`The Grubb Defendants are enjoined from, directly or indirectly, infringing
`Plaintiff’s rights in the motion picture London Has Fallen. Defendants shall not
`reproduce, copy, distribute, upload, torrent, or otherwise make London Has Fallen
`available for public distribution, whether through the internet or otherwise, absent
`express written permission from Plaintiff.
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`4.
`Defendants are further ordered to destroy all illegally obtained copies of
`London Has Fallen in their possession, custody, or control, including both electronic files
`and any copies of London Has Fallen transferred onto any physical medium or device.
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`5.
`The Clerk is directed to terminate this action without further order from the
`Court after the dismissal of the Schultz Defendants on April 10, 2017 (see Doc. 41).
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`Dated this 5th day of April, 2017.
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`Douglas L. Rayes
`United States District Judge
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