Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 1 of 11 PageID 598
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`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
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`CASE NO.: 8:23-cv-00139-WFJ-UAM
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`Plaintiff,
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`TWOWS, LLC,
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`
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`v.
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`THE INDIVIDUALS, PARTNERSHIPS
`AND UNINCORPORATED
`ASSOCIATIONS IDENTIFIED ON
`SCHEDULE “A,”
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`
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`Defendants.
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` /
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`ORDER ON MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT
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`THIS MATTER comes before the Court upon Plaintiff’s TWOWS, LLC.
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`(“Plaintiff”), Motion for Entry of Final Default Judgment (the “Motion”) [ECF No.
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`51]. The Defendants identified on the attached Default Schedule A (“Defendants”)
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`have failed to appear, answer, or otherwise plead to the Complaint filed on January
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`20, 2023 [ECF No. 1], despite having been served on March 2, 2023. See Certificate
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`of Service [ECF No. 18]. The Court has carefully considered the Motion, the record
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`in this case, the applicable law, and is otherwise fully advised. For the following
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`reasons, Plaintiff’s Motion is GRANTED.
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`INTRODUCTION
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`I.
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`
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`
`
`UNITED STATES DISTRICT COURT
`MIDDLE DISTRICT OF FLORIDA
`TAMPA DIVISION
`
`CASE NO.: 8:23-cv-00139-WFJ-UAM
`
`
`Plaintiff,
`
`TWOWS, LLC,
`
`
`
`v.
`
`THE INDIVIDUALS, PARTNERSHIPS
`AND UNINCORPORATED
`ASSOCIATIONS IDENTIFIED ON
`SCHEDULE “A,”
`
`
`
`
`Defendants.
`
`
`
`
`
`
`
`
`
` /
`
`ORDER ON MOTION FOR ENTRY OF FINAL DEFAULT JUDGMENT
`
`THIS MATTER comes before the Court upon Plaintiff’s TWOWS, LLC.
`
`(“Plaintiff”), Motion for Entry of Final Default Judgment (the “Motion”) [ECF No.
`
`51]. The Defendants identified on the attached Default Schedule A (“Defendants”)
`
`have failed to appear, answer, or otherwise plead to the Complaint filed on January
`
`20, 2023 [ECF No. 1], despite having been served on March 2, 2023. See Certificate
`
`of Service [ECF No. 18]. The Court has carefully considered the Motion, the record
`
`in this case, the applicable law, and is otherwise fully advised. For the following
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`reasons, Plaintiff’s Motion is GRANTED.
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`INTRODUCTION
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`I.
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 2 of 11 PageID 599
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`Plaintiff sued Defendants for copyright infringement under the Copyright Act,
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`17 U.S.C. §§ 106(1), (3), (4) & 501.
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`The Complaint alleges that Defendants are advertising, promoting, distributing,
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`and performing Plaintiff’s copyrighted work using counterfeits and confusingly similar
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`imitations of Plaintiff’s registered work within the State of Florida by operating the
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`Defendants’ Internet based e-commerce stores operating under each of the Seller IDs
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`identified on Schedule “A” attached to Plaintiff’s Motion for Entry of Final Default
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`Judgment (the “Seller IDs”).
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`Plaintiff further asserts that Defendants’ unlawful activities have caused and
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`will continue to cause irreparable injury to Plaintiff because Defendants have (1)
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`deprived Plaintiff of its right to determine the manner in which its works are presented
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`to consumers; (2) defrauded consumers into thinking Defendants’ illicit copies of
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`Plaintiff’s copyrighted work are authorized by Plaintiff; (3) deceived the public as to
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`Plaintiff’s sponsorship of and/or association with Defendants’ counterfeit products
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`and the websites on online storefronts through which such products are sold, offered
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`for sale, marketed, advertised, and distributed; (4) wrongfully traded and capitalized
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`on Plaintiff’s reputation and goodwill and the commercial value of the Plaintiff’s
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`copyrighted work; and (5) wrongfully damaged Plaintiff’s ability to market its branded
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`products and copyrighted works and products and educate consumers about its brand
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`via the Internet in a free and fair marketplace.
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` 2
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 3 of 11 PageID 600
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`In its Motion, Plaintiff seeks the entry of default final judgment against
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`Defendants1 in an action alleging infringement of copyright. Plaintiff further requests
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`that the Court (1) enjoin Defendants unlawful use of Plaintiff’s copyrighted work; (2)
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`award Plaintiff damages; and (3) instruct any third party financial institutions in
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`possession of any funds restrained or held on behalf of Defendants to transfer these
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`funds to the Plaintiff in partial satisfaction of the award of damages.
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`Pursuant to Federal Rule of Civil Procedure 55(b)(2), the Court is authorized to
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`enter a final judgment of default against a party who has failed to plead in response to
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`a complaint. “[A] defendant’s default does not in itself warrant the court entering a
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`default judgment.” DirecTV, Inc. v. Huynh, 318 F. Supp. 2d 1122, 1127 (M.D. Ala.
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`2004) (quoting Nishimatsu Constr. Co., Ltd. v. Houston Nat’l Bank, 515 F.2d 1200, 1206
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`(5th Cir. 1975)). Granting a motion for default judgment is within the trial court’s
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`discretion. See Nishimatsu, 515 F.2d at 1206. Because the defendant is not held to admit
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`facts that are not well pleaded or to admit conclusions of law, the court must first
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`determine whether there is a sufficient basis in the pleading for the judgment to be
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`entered. See id.; see also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987)
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`(“[L]iability is well-pled in the complaint, and is therefore established by the entry of
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`default … .”). Upon a review of Plaintiff’s submissions, it appears there is a sufficient
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`basis in the pleading for the default judgment to be entered in favor of Plaintiff.
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`1 Defendants are the Individuals, Partnerships, or Unincorporated Associations
`identified on Default Schedule “A” of Plaintiff’s Motion, and Default Schedule “A”
`of this Order.
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` 3
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 4 of 11 PageID 601
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`II.
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`FACTUAL BACKGROUND2
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`Plaintiff is the owner of the motion picture The Wolf Of Wall Street, which is
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`valid and registered with the United States Copyright Office, Registration Number
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`PA0001872685 (the “Copyrighted Work”). See Exhibit 1 to Complaint, ECF No. [1-
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`1] containing a copy of the U.S. Copyright Office’s online record for this work. See
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`Declaration of Randy Hermann, [ECF No. 10-1] at 4. Plaintiff has exclusive rights in
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`and to the Copyrighted Work. Id.
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`Defendants, through the various Internet based e-commerce stores operating
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`under each of the Seller IDs identified on Schedule “A” hereto (the “Seller IDs”) have
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`advertised, promoted, offered for distribution, distributed and/or publicly performed
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`the Copyrighted Work under what Plaintiff has determined to be counterfeits,
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`infringements, reproductions, and/or colorable imitations of the Copyrighted Work.
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`See Declaration of Randy Hermann, [ECF No. 10-1] at 10-13; see also Declaration of
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`A. Robert Weaver, [ECF No. 10-2] at 4.
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`Plaintiff has submitted sufficient evidence showing each Defendant has
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`infringed the Copyrighted Work at issue. See Declaration of Randy Hermann, [ECF
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`No. 10-1] at 10-13, and Schedule “C” to Declaration of A. Robert Weaver3.
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`2 The factual background is taken from Plaintiff’s Complaint, [ECF No. 1],
`Plaintiff’s Motion for Entry of Final Default Judgment and supporting evidentiary
`submissions.
`3 Evidence of each Defendant’s infringement was attached as Exhibit 1 to the
`Declaration of A. Robert Weaver in Support of Plaintiff’s Motion for Entry of Final
`Default Judgment.
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` 4
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 5 of 11 PageID 602
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`Defendants are not now, nor have they ever been, authorized or licensed to use,
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`reproduce, or make counterfeits, reproductions, or colorable imitations of the of the
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`Copyrighted Work nor are Defendants authorized or licensed to distribute the
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`Copyrighted Work. See Declaration of Randy Hermann, [ECF No. 10-1] at 10-13.
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`As part of its ongoing investigation regarding the sale of counterfeit and
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`infringing products, Plaintiff hired a third party investigatory to access Defendants’
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`Internet based e-commerce stores operating under each of the Seller IDs. The third
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`party investigator initiated orders from each Seller IDs for the purchase of various
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`products, all bearing, or suspected of bearing, counterfeits of the Copyrighted Work,
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`and requested each product to be shipped to an address in the Southern District of
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`Florida. Accordingly, Defendants’ Goods are being promoted, advertised, offered for
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`sale, and sold by Defendants within this district and throughout the United States. See
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`Declaration of A. Robert Weaver [ECF No. 10-2] at 5. A representative for Plaintiff
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`personally analyzed the products offered for sale which incorporated unauthorized
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`reproductions and/or derivatives of the Copyrighted Work at issue in this action,
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`wherein orders were initiated via each of the Seller IDs by reviewing the e-commerce
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`stores operating under each of the Seller IDs, or the detailed web page captures and
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`images of the items bearing the Copyrighted Work, and concluded the products were
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`non-genuine, unauthorized products. See Declaration of Randy Hermanna, [ECF No.
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`10-1] at 13.
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`III. ANALYSIS
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`A. Claims
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` 5
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 6 of 11 PageID 603
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`1.
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`Infringement of Copyright (Count I)
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`To prevail on a claim of direct infringement of copyright pursuant to the
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`Copyright Act, 17 U.S.C. §§ 106(1), (3) and (4), Plaintiff must “satisfy two
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`requirements to present a prima facie case of direct copyright infringement: (1) they
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`must show ownership of the allegedly infringed material, and (2) they must
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`demonstrate that the alleged infringers violated at least one exclusive right granted to
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`copyright holders under 17 U.S.C. § 106." A&M Records, Inc. v. Napster, Inc., 239 F.3d
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`1004, 1013 (9th Cir. 2001). See also Disney Enters. v. Hotfile Corp., Case No. 11-20427-
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`CIV-Williams, 2013 U.S. Dist. LEXIS 172339, at *94 (S.D. Fla. 2013).
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`B.
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`Liability
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`The well-pled factual allegations of Plaintiff’s Complaint properly allege the
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`elements for the claim as described above. See [ECF No. 1]. Moreover, the factual
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`allegations in Plaintiff’s Complaint have been substantiated by sworn declarations and
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`other evidence and establish Defendants’ liability under the claim asserted in the
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`Complaint. Accordingly, default judgment pursuant to Federal Rule of Civil
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`Procedure 55 is appropriate.
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`C.
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`Injunctive Relief
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`Pursuant to the Copyright Act, a district court is authorized to issue an
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`injunction “on such terms as it may deem reasonable to prevent or restrain
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`infringement of a copyright.” See 17 U.S.C. § 502(a). Indeed, injunctive relief is the
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`remedy of choice where there is no adequate remedy at law for the injury caused by a
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` 6
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 7 of 11 PageID 604
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`defendant’s continuing infringement. Burger King Corp. v. Agad, 911 F. Supp. 1499,
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`1509-10 (S.D. Fla. 1995) (citing Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175,
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`1180 (9th Cir. 1988)). Moreover, even in a default judgment setting, injunctive relief
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`is available. See e.g., PetMed Express, Inc., 336 F. Supp. 2d at 1222-23. Defendants’
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`failure to respond or otherwise appear in this action makes it difficult for Plaintiff to
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`prevent further infringement absent an injunction. See Jackson v. Sturkie, 255 F. Supp.
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`2d 1096, 1103 (N.D. Cal. 2003) (“[D]efendant’s lack of participation in this litigation
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`has given the court no assurance that defendant’s infringing activity will cease.
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`Therefore, plaintiff is entitled to permanent injunctive relief.”)
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`Permanent injunctive relief is appropriate where a plaintiff demonstrates that
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`(1) it has suffered irreparable injury; (2) there is no adequate remedy at law; (3) the
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`balance of hardship favors an equitable remedy; and (4) an issuance of an injunction
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`is in the public’s interest. eBay, Inc. v. MercExchange, LLC, 547 U.S. 388, 392-93 (2006).
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`Plaintiff has carried its burden on each of the four factors. Accordingly, permanent
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`injunctive relief is appropriate.
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`Plaintiff has no adequate remedy at law so long as Defendants continue to
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`operate the Seller IDs because Plaintiff cannot control the quality of what appears to
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`be its products in the marketplace. An award of monetary damages alone will not cure
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`the injury to Plaintiff’s reputation and goodwill that will result if Defendants’
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`infringing and counterfeiting and infringing actions are allowed to continue.
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`Moreover, Plaintiff faces hardship from loss of sales and its inability to control its
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`reputation in the marketplace. By contrast, Defendants face no hardship if they are
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` 7
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 8 of 11 PageID 605
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`prohibited from the infringement of Plaintiff’s copyright, which are illegal acts.
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`Finally, the public interest supports the issuance of a permanent injunction
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`against Defendants to prevent consumers from being misled by Defendants’
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`counterfeit products. See Nike, Inc. v. Leslie, 1985 WL 5251, at *1 (M.D. Fla. June 24,
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`1985) (“[A]n injunction to enjoin infringing behavior serves the public interest in
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`protecting consumers from such behavior.”). The Court’s broad equity powers allow
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`it to fashion injunctive relief necessary to stop Defendants’ infringing activities. See,
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`e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15 (1971) (“Once a right
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`and a violation have been shown, the scope of a district court’s equitable powers to
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`remedy past wrongs is broad, for . . . [t]he essence of equity jurisdiction has been the
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`power of the Chancellor to do equity and to mould each decree to the necessities of
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`the particular case.” (citation and internal quotation marks omitted)); United States v.
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`Bausch & Lomb Optical Co., 321 U.S. 707, 724 (1944) (“Equity has power to eradicate
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`the evils of a condemned scheme by prohibition of the use of admittedly valid parts of
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`an invalid whole.”).
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`Defendants have created an Internet-based infringement scheme in which they
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`are profiting from their deliberate misappropriation of Plaintiff’s rights. Accordingly,
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`the Court may fashion injunctive relief to eliminate the means by which Defendants
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`are conducting their unlawful activities.
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`D.
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`Statutory Damages for Copyright Infringement
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`Rather than seeking actual damages, a plaintiff may elect to recover statutory
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`damages per infringed work. See 17 U.S.C. § 504(c)(1) (“[T]he copyright owner may
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` 8
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 9 of 11 PageID 606
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`elect, at any time before final judgment is rendered, to recover, instead of actual
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`damages and profits, an award of statutory damages . . . .”); Arista Records, Inc. v. Beker
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`Enters., Inc., 298 F. Supp. 2d 1310, 1312 (S.D. Fla. 2003). With respect to any one
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`work, the Copyright Act permits a minimum award of $750 and a maximum award
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`of $30,000. 17 U.S.C. § 504(c)(1). In a case where the copyright owner sustains the
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`burden of proving, and the court finds, that infringement was committed willfully, the
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`court in its discretion may increase the award of statutory damages to a sum of not
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`more than $150,000. 17 U.S.C. § 504(c)(2). A district court has broad discretion for
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`determining statutory damages and should consider both the willfulness of the
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`defendant’s conduct and the deterrent value of the sanction imposed. Cable/Home
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`Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 852 (11th Cir. 1990); see also United
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`Feature Syndicate, Inc. v. Sunrise Mold Co., Inc., 569 F. Supp. 1475, 1480 (S.D. Fla. 1983)
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`(“In determining the amount of statutory damages to award plaintiff, the Court must
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`award an amount which it considers just.”). In this regard, “the Court's aim is not just
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`compensating the Plaintiffs for their injury but also to discourage wrongful conduct.”
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`Milk Money Music v. Oakland Park Entertainment Corp., No. 09-CV-61416, 2009 WL
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`4800272, at *2 (S.D. Fla. Dec. 11, 2009) (citing F.W. Woolworth Co. v. Contemporary
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`Arts, Inc., 344 U.S. 228, 233 (1952)). This is true even where the violation is not
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`injurious and unprofitable. See F.W. Woolworth Co., 344 U.S. at 233.
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`This Court may award statutory damages “without holding an evidentiary
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`hearing based upon affidavits and other documentary evidence if the facts are not
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`disputed.” Perry Ellis Int’l, Inc. v. URI Corp., No. 06-22020-CIV, 2007 WL 3047143, at
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` 9
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 10 of 11 PageID 607
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`*1 (S.D. Fla. Oct. 18, 2007). Although the Court is permitted to conduct a hearing on
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`a default judgment in regards to damages pursuant to Fed. R. Civ. P. 55(b)(2)(B), an
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`evidentiary hearing is not necessary where there is sufficient evidence on the record to
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`support the request for damages. See SEC v. Smyth, 420 F.3d 1225, 1232 n.13 (11th Cir.
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`2005) (“Rule 55(b)(2) speaks of evidentiary hearings in a permissive tone . . . We have
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`held that no such hearing is required where all essential evidence is already of record.”)
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`(citations omitted); see also PetMed Express, 336 F. Supp. 2d at 1223 (entering default
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`judgment, permanent injunction and statutory damages in a Lanham Act case without
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`a hearing).
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`Here, the allegations in the Complaint, which are taken as true, clearly establish
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`Defendants’ infringement of the Copyrighted Work was committed willfully. As such,
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`the Court is permitted to award up to $150,000.00 per infringing work as statutory
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`damages to ensure that Defendants do not continue their intentional and willful
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`counterfeiting activities.
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`The evidence in this case demonstrates that each Defendant sold, promoted,
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`distributed, advertised, and/or offered for sale products bearing infringements of the
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`Copyrighted Work. See [ECF No. 1]. Based on the above considerations, Plaintiff
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`suggests the Court award statutory damages of $50,000.00 against each Defendant.
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`The award should be sufficient to deter Defendants and others from continuing to
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`counterfeit or otherwise infringe Plaintiff’s copyrights, compensate Plaintiff, and
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`punish Defendants, all stated goals of 17 U.S.C. § 504(c). The Court finds that this
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`award of statutory damages falls within the permissible statutory range under 17
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` 10
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`Case 8:23-cv-00139-WFJ-UAM Document 52 Filed 11/02/23 Page 11 of 11 PageID 608
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`U.S.C. § 504(c) and is just.
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`IV. CONCLUSION
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` Based on the foregoing, it is ORDERED AND ADJUDGED that Plaintiff’s
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`Motion is GRANTED against those Defendants listed in the attached Schedule “A.”
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`Final Default Judgment will be entered by separate order.
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`DONE AND ORDERED in Tampa, Florida, this 2nd day of November, 2023.
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`cc:
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`counsel of record
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` 11
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