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`Case 2:23-cv-00201-DJC-CSK Document 19 Filed 07/24/24 Page 1 of 12
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`UNITED STATES DISTRICT COURT
`FOR THE EASTERN DISTRICT OF CALIFORNIA
`
`VLADIMIR FRANK KOZINA,
`Plaintiff,
`
`v.
`PONIE JACKSON,
`Defendant.
`
`Case No. 2:23-cv-201-DJC-CSK
`ORDER DENYING WITHOUT PREJUDICE
`PLAINTIFF’S MOTION FOR DEFAULT
`JUDGMENT AND DISMISSING
`COMPLAINT WITH LEAVE TO AMEND
`(ECF No. 14)
`
`
`Plaintiff Vladimir Frank Kozina asserts claims for copyright infringement and unfair
`
`competition/ trade practices against Defendant Ponie Jackson a/k/a Ponie Ryan,
`seeking monetary damages, punitive damages, an injunction, and other relief. Compl.
`(ECF No. 1). Defendant has not made an appearance in this action, and on April 19,
`2023, Clerk’s Default was entered against her. (ECF No. 9.) Presently pending before
`the Court is Plaintiff’s motion for default judgment (ECF No. 14), which Defendant has
`not opposed and was taken under submission without argument pursuant to Local Rules
`230(c) and 230(g).1 Plaintiff’s motion for default judgment is DENIED without prejudice.
`In addition, the Complaint is DISMISSED with LEAVE TO AMEND.
`/ / /
`
`
`1 This motion is referred to the undersigned pursuant to Local Rule 302(c)(19) and
`28 U.S.C. § 636(b)(1)(A).
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`I.
`
`BACKGROUND
`A.
`Facts
`The Complaint alleges that Plaintiff has two registered copyrights:
`(1) VAU001378161, a graphic of a full-frontal ram created in 2007 and registered on
`August 12, 2019; and (2) VAU001381368, a visual graphic of a jumping ram in front of a
`letter block SM created in 2014 and registered on August 12, 2019. Compl. ¶ 4. Plaintiff
`has licensed both copyrights through a charitable donation to Saint Mary’s High School
`in Stockton, California, and has not licensed the copyrights to any other person or entity.
`Id. at ¶ 7.
`The Complaint further alleges that Defendant, an individual, falsely presents
`herself as a school photographer “to gain entry into [] various venues, including high
`schools, athletic events and other youth sports primarily in the Stockton and San
`Joaquin County area.” Compl. ¶ 9. Defendant allegedly has published and sold
`photographs and posters that have incorporated Plaintiff’s copyrights “in excess of 500
`times.” Id. at ¶ 10. Plaintiff first became aware of Defendant’s alleged infringement in
`2022, and sent Defendant a cease and desist letter on October 18, 2022. Id. at ¶¶ 11-12.
`Defendant allegedly represented to consumers that her use of the copyrights was
`permitted, “induc[ing] members of the general public to purchase photographs, posters
`and other consumer goods” featuring the Works. Id. at ¶ 14.
`B.
`Procedural Posture
`Plaintiff filed the Complaint on January 31, 2023, asserting claims for copyright
`infringement (17 U.S.C. § 106) and unfair competition/ trade practices (Cal. Bus. Code
`§ 17200) against Defendant. Compl. The Complaint seeks statutory, compensatory, and
`punitive damages; disgorgement of profits; and an order enjoining Defendant’s use of
`the copyrights, among other relief. Id. Plaintiff is a licensed California attorney and
`represents himself in this matter. See id. at 1 (caption); 10/23/2023 Declaration of
`Vladimir F. Kozina at 1 (ECF No. 11); 10/24/2023 Declaration of Vladimir F. Kozina at 1
`(ECF No. 14-2); 12/4/2023 Declaration of Vladimir F. Kozina at 1 (ECF No. 16). On
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`February 1, 2023, the Clerk of the Court issued the summons and filed a “Report on the
`Filing or Determination of an Action or Appeal Regarding a Copyright” under 17 U.S.C.
`§ 508. (EFC No. 4-3.)
`On March 29, 2023, Plaintiff filed a notice of execution of summons. (ECF No. 5.)
`This notice indicated that on March 8, 2023, a third party process server personally
`served on Defendant a copy of the summons, the Complaint, the 17 U.S.C. § 508
`Copyright Report, and other case documents. (ECF No. 5.) Despite this personal
`service, Defendant did not respond to the Complaint or make an appearance. See
`Docket. On April 18, 2023, Plaintiff requested entry of default (ECF No. 8), which was
`entered by the Clerk the following day (ECF No. 9).
`On October 20, 2023, the assigned district judge ordered Plaintiff to show cause
`why this action should not be dismissed for failure to prosecute. (ECF No. 10.) On
`October 23, 2023, Plaintiff responded to the order to show cause, stating that he “forgot
`to follow up” due to other client matters, including trials in May and June 2023, and
`arbitration and mediation work. 10/23/2023 Kozina Decl. at 1-2. On October 24, 2023,
`Plaintiff moved for default judgment against Defendant in a half-page long motion. (ECF
`No. 12.) The motion was improperly set before the district judge, so Plaintiff was ordered
`to re-notice the motion before the assigned magistrate judge. (ECF No. 13.) On
`November 14, 2023, Plaintiff refiled the motion for default judgment, but incorrectly set it
`for a hearing before a different magistrate judge who was not assigned to the case. (ECF
`No. 14.) On November 16, 2023, the Court issued a minute order re-setting Plaintiff’s
`motion for a December 19, 2023 hearing before the assigned magistrate judge and
`directing Plaintiff to personally serve Defendant with a copy of the default judgment
`motion and the minute order. (ECF No. 15.)
`On December 4, 2023, Plaintiff filed a declaration indicating personal service had
`been attempted in compliance with the Court’s November 16, 2023 minute order. (ECF
`No. 16.) This declaration indicates a third party process server attempted to serve
`Defendant six times between November 22, 2023 and December 3, 2023, with no
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`success. Id. at Exh. A (12/4/2023 Process Server Affidavit of Reasonable Diligence).
`Service was attempted at the same address at which Defendant was previously and
`successfully served. Id. at 2. Defendant did not respond to the motion for default
`judgment, and so the assigned magistrate judge took Plaintiff’s motion under submission
`for resolution on the written briefing. (ECF No. 17.) Upon retirement of the magistrate
`judge, the case was reassigned to the undersigned. (ECF No. 18.)
`II.
`LEGAL STANDARDS
`Under Federal Rule of Civil Procedure 55, default may be entered against a party
`against whom a judgment for affirmative relief is sought who fails to plead or otherwise
`defend against the action. See Fed. R. Civ. P. 55(a). However, this default does not
`automatically entitle the plaintiff to a judgment. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F.
`Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citations omitted). The decision to grant or deny
`the entry of default judgment is within the district court’s discretion. NewGen, LLC v.
`Safe Cig, LLC, 840 F.3d 606, 616 (9th Cir. 2016).
`In determining whether to enter default judgment, courts consider the following
`factors:
`1. the possibility of prejudice to the plaintiff;
`2. the merits of the substantive claim(s);
`3. the sufficiency of the complaint;
`4. the amount of money at stake in the lawsuit;
`5. whether there are any disputes of material fact;
`6. whether the defendant’s default was due to excusable neglect; and
`7. the strong policy favoring decisions on the merits.
`Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The Ninth Circuit has long
`disfavored default judgments, counseling that cases be decided on the merits “whenever
`reasonably possible. Id. at 1472.
`Once a default is entered, all well-pled allegations in the complaint regarding
`liability are deemed true. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.
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`2002). “On the other hand, a defendant is not held to admit facts that are not well-
`pleaded or to admit conclusions of law.” United States v. Cathcart, 2010 WL 1048829, at
`*4 (N.D. Cal. Feb. 12, 2010) (citation omitted). “[I]t follows from this that facts which are
`not established by the pleadings of the prevailing party, or claims which are not well-
`pleaded, are not binding and cannot support the judgment.” Danning v. Lavine, 572 F.2d
`1386, 1388 (9th Cir. 1978). Necessary facts not contained in the pleadings and claims
`which are legally insufficient are not established by default. DIRECTV, Inc. v. Hoa
`Huynh, 503 F.3d 847, 854 (9th Cir. 2007). Further, a plaintiff’s allegations regarding
`damages are not deemed true at default and the plaintiff bears the burden to prove
`damages through some evidence. See Fed. R. Civ. P. 55(b)(2)(C); Geddes v. United
`Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977); Penpower Tech. Ltd. v. S.P.C. Tech., 627
`F. Supp. 2d 1083, 1093-94 (N.D. Cal. 2008) (“Although the Court must generally accept
`the factual allegations of the Complaint as true, allegations relating to the amount of
`damages must be supported by some evidence. As there is no other evidence, aside
`from the factual allegation in the Complaint, that Defendants acted willfully, the Court
`cannot find that such was the case.”) (internal citation omitted).
`III.
`DISCUSSION
`Before turning to the default judgment motion, the Court first addresses two
`preliminary matters: jurisdiction and the construction of the pleadings given that Plaintiff
`is a licensed attorney representing himself in this lawsuit.
`A.
`Jurisdiction
`When default judgment is sought, the “district court has an affirmative duty to look
`into its jurisdiction over both the subject matter and the parties.” In re Tuli, 172 F.3d 707,
`712 (9th Cir. 1999) (citations omitted). The Court has subject matter jurisdiction over this
`action pursuant to 28 U.S.C. § 1331 because it arises under federal copyright law,
`17 U.S.C. § 101, et seq. The Court has supplemental jurisdiction over the state law
`unfair competition claim under 28 U.S.C. § 1367, given the relatedness of the claims.
`See Compl. In addition, the Court has personal jurisdiction over Defendant, who is a
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`California resident. Id. at ¶ 2. The Court’s jurisdiction analysis is not a finding that the
`claims were sufficiently pled.
`B.
`No Liberal Construction of Pleadings
`The Ninth Circuit has held that the liberal pleading standard typically afforded to
`pro se parties does not apply to pro se parties who are attorneys. Huffman v. Lindgren,
`81 F.4th 1016, 1020-21 (9th Cir. 2023) (“The circuits that have reached the issue speak
`with one voice: they have uniformly declined to extend the liberal pleading standard to
`pro se attorneys.”). Plaintiff is an attorney licensed in California, a fact that Plaintiff has
`submitted under oath in his declarations submitted in support of his motion for default
`judgment. 10/24/2023 Kozina Decl. at 1; 12/4/2023 Kozina Decl. at 1. The Complaint’s
`caption also lists Plaintiff’s state bar license number and law firm. Compl. at 1.
`Therefore, the Court reviews the pleadings in this case without the liberal construction
`afforded to pro se parties who are not attorneys. See Huffman, 81 F.4th at 1020-21.
`C.
`Default Judgment
`1.
`Service of Complaint
`In reviewing a motion for default judgment, the Court must first determine whether
`Defendant was properly served with the summons and complaint. Fed. R. Civ. P. 4(c).
`Plaintiff personally served Defendant on March 8, 2023 with the summons, Complaint,
`Copyright Report, and other initial case documents. Proof of Service (ECF No. 5).
`Accordingly, Defendant was properly served.
`2.
`Deficient Motion for Default Judgment
`Plaintiff’s motion for default judgment is three sentences long and has no
`argument, legal analysis, or citation to legal authority. See Pl. Mot.2 The entire motion is
`presented here:
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`Plaintiff, Vladimir Frank Kozina, moves the court pursuant to
`
`2 The motion for default judgment also attaches a brief declaration from Plaintiff that he
`is a licensed attorney, the defendant is not in the United States military, judgment should
`be entered in the amount requested, and that Plaintiff is not seeking attorney fees. See
`10/24/2023 Kozina Decl.
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`Rule 55(b) Federal Rules of Civil Procedure to enter Default
`Judgment in favor of Plaintiff, Vladimir F. Kozina, and against
`Defendant, Ponie Jackson AKA Ponie Ryan, in the amount of
`$375,000 on the ground that Default has been entered
`against Defendant by the Clerk for failure to answer or
`otherwise defend, a copy of which is attached hereto as
`Exhibit A.
`The Defendant is not in the Military Service of the United
`States as more particularly shown in the Affidavit of Vladimir
`F. Kozina attached hereto as Exhibit B.
`Judgment is requested accordingly.
`Pl. Mot. (emphasis in original).
`Courts, including this district court, regularly deny default judgment motions that
`are deficient. See S.A. ex rel. L.A. v. Exeter Union Sch. Dist., 2009 WL 1953462, at *3
`(E.D. Cal. July 7, 2009) (denying default judgment motion as deficient that contained no
`caselaw); Szabo v. Southwest Endocrinology Assoc. PLLC, 2021 WL 3411084, at *1 (D.
`Ariz. July 27, 2021) (“[M]otions for default judgment—at least successful ones—are
`typically fully developed, such that the Court has ... all that is necessary” to award
`relief.); Studio 010 Inc. v. Digital Cashflow LLC, 2024 WL 2274320, at *2 (W.D. Wash.
`May 20, 2024) (“Plaintiff's motion for default judgment contained no caselaw in support
`of Plaintiff's commercial disparagement claim, despite the fact that it was Plaintiff's
`“burden to demonstrate to the Court that under the pertinent law, [Plaintiff's] claims, as
`alleged, [we]re legally sufficient.”) (emphasis in original) (internal quotation marks and
`citation omitted); see also Very Music Inc. v. Kid Glove Prods., Inc., 2016 WL 6674991,
`at *3 (C.D. Cal. Apr. 28, 2016) (finding two-page motion with only one sentence of legal
`analysis insufficient to justify granting default judgment, and proceeding to analyze the
`motion despite deficiency because defendants submitted a substantive opposition, and
`denying motion for default judgment). This is because “[i]t is the party's burden to
`demonstrate to the Court that under the pertinent law, the plaintiff's claims, as alleged,
`are legally sufficient.” S.A. ex rel. L.A., 2009 WL 1953462 at *3; see also Surtain v.
`Hamlin Terrace Found., 789 F.3d 1239, 1245 (11th Cir. 2015) (a sufficient basis for
`default judgment is “akin to that necessary to survive a motion to dismiss for failure to
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`state a claim”); Nat'l Auto Grp., Inc. v. Van Devere, Inc., 2022 WL 80324, at *2 (N.D.
`Ohio Jan. 7, 2022); IOU Cent., Inc. v. Kailani Tours Hawaii, LLC, 2021 WL 806340, at *2
`(N.D. Ga. Feb. 24, 2021) (“A plaintiff's burden at the default judgment stage is ‘akin to
`that necessary to survive a motion to dismiss for failure to state a claim.’”) (quoting
`Surtain, 789 F.3d at 1245); Garcia v. Client Resol. Mgmt., LLC, 2020 WL 2732345, at *3
`(S.D. Fla. May 26, 2020).
`Here, it is clear that Plaintiff’s motion is woefully deficient. Plaintiff, a licensed
`attorney, provides no legal analysis, no argument, and no legal authority in his three
`sentence-long motion. The law governing motions for default judgment is well-
`established and counsel was presumably well aware of the consistently cited and
`applied Eitel factors. See Eitel, 782 F.2d at 1471-72. Plaintiff has failed to carry his
`burden. See S.A. ex rel. L.A., 2009 WL 1953462 at *3; Nat'l Auto Grp., 2022 WL 80324
`at *2; IOU Cent., 2021 WL 806340 at *2; Garcia, 2020 WL 2732345 at *3. The Court
`therefore denies Plaintiff’s deficient motion for default judgment without prejudice.
`Plaintiff is warned that filing another deficient motion for default judgment will result in a
`recommendation that this lawsuit be dismissed.
`3.
`Eitel Factors
`Though the Court denies the motion for default judgment without prejudice, the
`Court turns to the Eitel factors because its assessment of the Eitel factors leads the
`Court to conclude that the Complaint is deficient.3 The Court therefore dismisses the
`Complaint with leave to amend because Plaintiff may be able to cure its defects. Plaintiff
`is instructed to ensure that any amended pleading cures defects identified below, if such
`
`3 Even if the Court had not concluded that Plaintiff’s motion for default judgment was
`deficient, the Court finds that the second and third Eitel factors are not established,
`which is sufficient grounds for denying a motion for default judgment. See Akrura Pte.
`Ltd. v. Apero Techs. Group, 2024 WL 2982971, at *1 (C.D. Cal. Apr. 16, 2024) (denying
`default judgment where copyright infringement claim was not sufficiently pled and where
`unfair competition claims were derivative of the copyright infringement claim); GS
`Holistic, LLC v. Ravens Smoke Shop, Inc., 2023 WL 5504964, at *3 (C.D. Cal. July 10,
`2023) (“[T]he Court may render judgment based on an assessment of the second and
`third Eitel factors alone.”).
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`defects can be cured, and to ensure that Plaintiff carries his burden on any subsequent
`motion for default judgment.
`The second and third Eitel elements—the merits of the claims and the sufficiency
`of the complaint—are often analyzed together. Stockfood Am., Inc. v. Sequoia
`Wholesale Florist, Inc., 2021 WL 4597080, at *3 (N.D. Cal. June 22, 2021), report and
`recommendation adopted, 2021 WL 4595128 (N.D. Cal. Oct. 6, 2021). Plaintiff asserts
`claims for copyright infringement (17 U.S.C. § 106) and unfair competition/ trade
`practices (Cal. Bus. Code § 17200).
`a)
`Copyright Infringement Claim
`To state a claim for direct copyright infringement, plaintiff “(1) must show
`ownership of the allegedly infringed material and (2) must demonstrate that the alleged
`infringers violated at least one exclusive right granted to copyright holders under
`17 U.S.C. § 106.” A & M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.
`2001). Pursuant to Section 106 of the Copyright Act, a copyright owner has exclusive
`rights to reproduce the copyrighted works, prepare derivative works based on the
`copyrighted work, distribute copies of the copyrighted work to the public by sale or other
`ownership transfer, to publicly perform the copyrighted work, and to publicly display the
`copyrighted work. 17 U.S.C. § 106. The complaint “must include sufficient factual
`allegations that explain how defendant [] copied, displayed or distributed infringing
`copies” of the copyrighted work. Miller v. Facebook, Inc., 2010 WL 1292708, at *3 (N.D.
`Cal. Mar. 31, 2010).
`The Court has carefully reviewed the Complaint. As described above, the
`Complaint is not entitled to a liberal construction because even though Plaintiff is
`proceeding pro se, he is a licensed attorney. See Section III.B above. Even after
`accepting all well-pled factual allegations as true as required for default judgment
`motions, the Complaint does not allege sufficient facts to support a claim for infringement
`of Plaintiff’s two copyrights. While the Complaint sufficiently alleges the first element, that
`Plaintiff owned two registered copyrights, the Complaint does not sufficiently allege how
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`Defendant copied, displayed, or distributed infringing copies. See Akrura Pte. Ltd., 2024
`WL 2982971 at *1; Miller, 2010 WL 1292708 at *3. The Complaint’s allegations
`regarding infringement are bare. See Compl. ¶¶ 10, 19. It’s not clear from the Complaint
`which of the two copyrights Plaintiff alleges Defendant copied or how the copyrighted
`work was copied. In addition, while the Complaint alleges that Plaintiff licensed both
`copyrighted works to Saint Mary’s High School, there is no allegation regarding whether
`Defendant’s alleged use of the copyrighted works had any connection to the licensee.
`See Compl. ¶ 7.
`In the event that Plaintiff files a subsequent motion for default judgment on an
`amended complaint, Plaintiff is also reminded that allegations regarding damages are
`not deemed true at default and the plaintiff bears the burden to prove damages through
`some evidence. See Fed. R. Civ. P. 55(b)(2)(C); Geddes., 559 F.2d at 560; Penpower
`Tech., 627 F. Supp. 2d at 1093-94. Here, the motion for default judgment seeks
`judgment in the amount of $375,000, but not injunctive relief or other damages sought in
`the Complaint. Compare Pl. Mot. at 1 (seeking judgment in the amount of $375,000),
`with Compl. at 5 (seeking $375,000 in damages, disgorgement of profits, punitive
`(exemplary) damages, and an injunction). The motion provides no evidentiary support
`regarding the $375,000 in damages sought, including whether these are statutory
`damages or actual damages, or any explanation for how damages were calculated.
`For copyright infringement, the copyright owner is entitled to “either (1) the
`copyright owner’s actual damages and any additional profits of the infringer, as provided
`by subsection [17 U.S.C. § 504](b); or (2) statutory damages, as provided by subsection
`[17 U.S.C. § 504(c).” 17 U.S.C. § 504(a). The Copyright Act provides for statutory
`damages of a minimum of $750 and a maximum of $30,000, unless the copyright owner
`proves willful infringement. 17 U.S.C. § 504(c)(1). Courts across the country have
`concluded that the number of statutory awards is based on the number of copyrighted
`works infringed, “not on the number of separate infringements.” Friedman v. Live Nation
`Merchandise, Inc., 833 F.3d 1180, 1189-90 (9th Cir. 2016) (citing Walt Disney Co. v.
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`Powell, 897 F.2d 565, 569 (D.C. Cir. 1990)); see also Elektra Entm’t Group Inc. v.
`Crawford, 226 F.R.D. 388, 394 (C.D. Cal. 2005) (in granting default judgment, awarding
`$750 statutory damages for each of eight copyright recordings, for a total of $6,000 in
`damages). For willful infringement, the court has discretion to increase the statutory
`damages award to an amount not more than $150,000. 17 U.S.C. § 504(c)(2).
`In any subsequent motion for default judgment, Plaintiff must provide evidence for
`the damages sought and provide some explanation, including how the damages were
`calculated and whether Plaintiff is seeking statutory damages or actual damages for
`copyright infringement.
`b)
`Unfair Competition Claim
`The Complaint also alleges an unfair competition/ trade practices claim pursuant
`to California Business and Professions Code § 17200 based on Defendant’s alleged
`infringement. Compl. ¶ 23 (claim based on “the conduct described above” in the
`Complaint). “Unfair competition law in California prohibits any unlawful, unfair or
`fraudulent business practices.” Kodadek v. MTV Networks, Inc., 152 F.3d 1209, 1212
`(9th Cir. 1998). Under the second and third Eitel factors, this claim is insufficient as
`currently pled because Plaintiff’s copyright claim preempts his unfair competition claim.
`See Kodadek, 152 F.3d at 1212 (plaintiff’s Cal. Bus. & Prof. § 17200 claim preempted by
`copyright infringement claim); Penpower Tech., 627 F. Supp. 2d at 1091-92 (N.D. Cal.
`2008) (finding § 17200 claim preempted by copyright infringement claim where “[t]he
`Court can discern no ‘qualitative’ difference between the § 17200 claims and the
`copyright infringement claim.”) (quoting Kodadek, 152 F.3d at 1212). Therefore, not only
`is default judgement on the unfair competition claim improper, but this claim is also
`dismissed without prejudice. If Plaintiff elects to file an amended complaint with a
`copyright infringement claim and a § 17200 unfair competition claim, the amended
`complaint must include allegations that establish that the unfair competition claim is not
`preempted by any copyright infringement claim.
`/ / /
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`Case 2:23-cv-00201-DJC-CSK Document 19 Filed 07/24/24 Page 12 of 12
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`IV.
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`CONCLUSION
`In conclusion, it is HEREBY ORDERED that:
`1. Plaintiff’s motion for default judgment (ECF No. 14) is DENIED WITHOUT
`PREJUDICE;
`2. The Complaint (ECF No. 1) is DISMISSED; and
`3. Plaintiff is GRANTED LEAVE to file an amended complaint within thirty (30)
`days of this Order.
`If Plaintiff elects to file an amended complaint, it should be titled “First Amended
`Complaint” with reference to the appropriate case number. An amended complaint must
`be complete in itself without reference to any prior pleading. See Loux v. Rhay, 375 F.2d
`55, 57 (9th Cir. 1967); E.D. Cal. Local Rule 220. If Plaintiff does not timely file an
`amended complaint, this will result in a recommendation that this action be dismissed.
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`Dated: July 23, 2024
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