Case3:11-cv-03911-LB Document31 Filed11/10/11 Page1 of 4
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`UNITED STATES DISTRICT COURT
`Northern District of California
`Oakland Division
`No. C 11-03911 LB
`ORDER (1) CONTINUING HEARING
`ON PLAINTIFF’S MOTION FOR
`DEFAULT JUDGMENT, (2)
`DIRECTING THE CLERK OF THE
`COURT TO ISSUE SUBPOENA, AND
`(3) DIRECTING THE U.S. MARSHAL
`TO SERVE DOCUMENTS ON
`DEFENDANT APPLE
`
`KORVEL M. SUTTON,
`Plaintiff,
`
`v.
`APPLE COMPUTERS ITUNES, et al.
`Defendants.
`_____________________________________/
`
`I. BACKGROUND
`On August 8, 2009, pro se plaintiff Korvel Sutton sued Apple Computers iTunes (“Apple”) and
`individuals Donald McMillan and James Callon (collectively, “Defendants”) for copyright
`infringement. Complaint, ECF No. 1.1 Two days later, the court granted Mr. Sutton’s application to
`proceed in forma pauperis and ordered the U.S. Marshal to serve Defendants with the complaint and
`summons. IFP Order, ECF No. 6.
`Defendants were all successfully served by the U.S. Marshal. Acknowledgment of Service
`(Apple), ECF No. 8; Acknowledgment of Service (Callon), ECF No. 10; Acknowledgment of
`Service (McMillan), ECF No. 19. Service was accepted on behalf of Apple by a Mr. or Ms. Q. Ros,
`apparently a member of its legal department, at 2:00 p.m. on August 23, 2011. Acknowledgment of
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`1 Citations are to the Electronic Case File (“ECF”) with pin cites to the electronic page
`number at the top of the document, not the pages at the bottom.
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`Case3:11-cv-03911-LB Document31 Filed11/10/11 Page2 of 4
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`Service (Apple), ECF No. 8.
`Under Federal Rule of Civil Procedure 12(a)(1), Apple had until September 13, 2011 to answer
`Mr. Sutton’s complaint, but, to date, Apple has failed to do so. So, Mr. Sutton requested that the
`Clerk of the Court enter Apple’s default, which it did on October 18, 2011. Motion for Entry of
`Default, ECF No. 21; Entry of Default (Apple), ECF No. 25.
`Mr. Sutton then moved for default judgment against Apple. Motion for Default Judgment, ECF
`No. 23. Recently, Mr. Sutton noticed a hearing on his motion for December 1, 2011. Notice of
`Motion, ECF No. 29.
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`II. LEGAL STANDARD
`After entry of default by the Clerk, courts are authorized to grant default judgment in their
`discretion. See Fed. R. Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). A court
`may consider the following factors in deciding whether to enter default judgment: (1) the possibility
`of prejudice to the plaintiff; (2) the merits of the 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 considering these factors, all factual allegations in the
`plaintiff’s complaint are taken as true, except those relating to damages. Tele Video Sys., Inc. v.
`Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987). When the damages claimed are not readily
`ascertainable from the pleadings and the record, the court may conduct a hearing to conduct an
`accounting, determine the amount of damages, establish the truth of any allegation by evidence, or
`investigate any other matter. Fed. R. Civ. P. 55(b)(2).
`III. DISCUSSION
`In this case, Mr. Sutton Sutton, a former member of the early 1990s West Coast rap group, Pretty
`Boy Gangsters, alleges that Defendants infringed his copyrighted songs that appear on Pretty Boy
`Gangsters’ 1991 album, Rollin' Like A Star. Complaint, ECF No. 1 at 3-4, Ex. 2-C.2 Sutton alleges
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`2 The following songs appear on Rollin’ Like A Star: (1) “Pretty Boy Gangsters”; (2) “Hard
`as Fuck”; (3) “Activist”; (4) “Monies on My Mind”; (5) “Mack on Top of the Stack”; (6) “P.B.G.’s
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`that the album’s songs have been made available for download on Apple’s iTunes service without
`his consent or permission, in violation of Title 17 of the United States Code. Id. at 3-4, Ex. 2-A.
`17 U.S.C. § 501(a) states that “[a]nyone who violated any of the exclusive rights of the copyright
`owner as provided by sections 106 through 122 . . . is an infringer of the copyright.” “In order to
`state a claim for copyright infringement, plaintiff must show (1) that it owns a valid copyright in the
`allegedly infringed material, and (2) that defendants violated an exclusive right granted to the
`copyright owner. The exclusive rights of the copyright owner are enumerated in Section 106 and
`include ‘to reproduce the copyrighted work in copies or phonorecords’ and ‘to distribute copies or
`phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by
`rental, lease, or lending.’” IO Group, Inc. v. Pralat, No. C 10–03647 WHA, 2011 WL 4713748, at
`*2 (N.D. Cal. Oct. 7, 2011) (quoting 17 U.S.C. § 106(1), (3)).
`One difficulty presented here is how to calculate Mr. Sutton’s damages. According to his
`complaint, he seeks “complete payment of all royalties from the sales and[/]or digital downloads of
`my copyrighted works.” Complaint, ECF No. 1 at 5.3 But only Apple knows how many of Pretty
`Boy Gangsters’ songs it has sold. To remedy this problem, Mr. Sutton has asked this court to issue a
`subpoena that essentially commands Apple to produce documents setting forth the number of copies
`it has sold. Because Apple has failed to appear in this action, the court believes that issuing the
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`Get Funky (Rollin’ like a Star)”; (7) “K the Buster”; (8) “On the Tip of a Mack”; (9) “Indo Smoke”;
`and (10) “It Ain’t Right.” Complaint, ECF No. 1, Exs. 1-A & 1-B.
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`3 Where a plaintiff prevails in a copyright infringement case, he or she is entitled to recover
`the actual damages suffered as a result of a copyright infringement in addition to any profits earned
`by the copyright infringer. 17 U.S.C. 504(a). In the alternative, 17 U .S.C. § 504(c) allows a
`copyright owner to elect, at any time before final judgment is rendered, to recover, instead of actual
`damages and profits, an award of statutory damages in a sum of not less than $750 or more than
`$30,000 for each infringement, as the court considers just. Moreover, pursuant to 17 U.S.C. §
`504(c)(2), a court has discretion to increase the award of statutory damages to $150,000 per
`infringement where an infringer’s conduct is found to be willful. “Statutory damages are
`particularly appropriate in a case . . . in which defendant has failed to mount any defense or to
`participate in discovery, thereby increasing the difficulty of ascertaining plaintiff’s actual damages.”
`Jackson v. Sturkie, 255 F.Supp.2d 1096, 1101 (N.D. Cal. 2003).
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`For the Northern District of California
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`Case3:11-cv-03911-LB Document31 Filed11/10/11 Page4 of 4
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`subpoena – albeit with a later response date than Mr. Sutton requested4 – is an appropriate next step.
`IV. CONCLUSION
`Currently, the hearing on Mr. Sutton’s motion for noticed for December 1, 2011. To allow
`Apple a reasonable amount of time to respond to Mr. Sutton’s subpoena and provide additional
`notice of these proceedings, the court CONTINUES the hearing on Mr. Sutton’s motion for default
`judgment to January 19, 2012 at 11:00 a.m. in Courtroom 4, Third Floor, United States District
`Court, 1301 Clay Street, Oakland, California, 94612. This also is the place and date at which Apple
`shall be commanded to produce documents responsive to Mr. Sutton’s subpoena. In addition, out of
`an abundance of caution, the court directs the U.S. Marshal to serve a copy of the Clerk of the
`Court’s entry of Apple’s default, Mr. Sutton’s motion for default judgment, his declaration in
`support thereof, his notice of motion, and this order on Apple. See ECF Nos. 23, 24, 25, 29, 30.
`IT IS SO ORDERED.
`Dated: November 10, 2011
`
`_______________________________
`LAUREL BEELER
`United States Magistrate Judge
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`4 Mr. Sutton’s proposed subpoena requires Apple to produce responsive documents to the
`court on November 24, 2011. Given that this is only about two weeks away – and is the
`Thanksgiving Day holiday – the court modifies the response date as stated above.
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`For the Northern District of California
`For the Northern District of California
`UNITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT