Case 0:22-cv-60729-WPD Document 88 Entered on FLSD Docket 07/28/2022 Page 1 of 9
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`UNITED STATES DISTRICT COURT
`SOUTHERN DISTRICT OF FLORIDA
`FORT LAUDERDALE DIVISION
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`CASE NO.: 0:22-cv-60729-WPD
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`TWOWS, LLC,
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`v.
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`THE INDIVIDUALS, PARTNERSHIPS AND
`UNINCORPORATED ASSOCIATIONS
`IDENTIFIED ON SCHEDULE “A,”
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`Plaintiff,
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`Defendants.
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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. (“Plaintiff”),
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`Motion for Entry of Final Default Judgment (the “Motion”) [DE 69], filed on July 12, 2022. A
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`Clerk’s Default, [DE. 47], was entered against Defendants on June 24, 2022, as Defendants failed
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`to appear, answer, or otherwise plead to the Complaint, [DE 1], despite having been served. The
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`Court has carefully considered the Motion, the record in this case, the applicable law, and is
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`otherwise fully advised. The Court notes that Defendants failed to respond to the Court’s July 13,
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`2022 Order to Show Cause why the Motion should not be granted. See [DE 78]. For the following
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`reasons, Plaintiff’s Motion [DE 69] is GRANTED.
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`I.
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`INTRODUCTION
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`Plaintiff sued Defendants for copyright infringement under the Copyright Act, 17 U.S.C.
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`§§ 106(1), (3), (4) & 501.
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`The Complaint alleges that Defendants are advertising, promoting, distributing, and
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`performing Plaintiff’s copyrighted work using counterfeits and confusingly similar imitations of
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`Plaintiff’s registered work within the Southern District of Florida by operating the Defendants’
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`Internet based e-commerce stores operating under each of the Seller IDs identified on Schedule
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`“A” attached to Plaintiff’s Motion for Entry of Final Default Judgment (the “Seller IDs”).
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`Plaintiff further asserts that Defendants’ unlawful activities have caused and will continue
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`to cause irreparable injury to Plaintiff because Defendants have 1) deprived Plaintiff of its right to
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`determine the manner in which its works are presented to consumers; (2) defrauded consumers
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`into thinking Defendants’ illicit copies of Plaintiff’s copyrighted work are authorized by Plaintiff;
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`(3) deceived the public as to Plaintiff’s sponsorship of and/or association with Defendants’
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`counterfeit products and the websites on online storefronts through which such products are sold,
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`offered for sale, marketed, advertised, and distributed; (4) wrongfully traded and capitalized on
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`Plaintiff’s reputation and goodwill and the commercial value of the Plaintiff’s copyrighted work;
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`and (5) wrongfully damaged Plaintiff’s ability to market its branded products and copyrighted
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`works and products and educate consumers about its brand via the Internet in a free and fair
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`marketplace.
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`In its Motion, Plaintiff seeks the entry of default final judgment against Defendants1 in an
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`action alleging infringement of copyright. Plaintiff further requests that the Court (1) enjoin
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`Defendants unlawful use of Plaintiff’s copyrighted work; (2) award Plaintiff damages; and (3)
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`instruct any third party financial institutions in possession of any funds restrained or held on behalf
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`of Defendants to transfer these 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 enter a
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`final judgment of default against a party who has failed to plead in response to a complaint. “[A]
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`1 Defendants are the Individuals, Partnerships, or Unincorporated Associations identified on Schedule “A”
`of Plaintiff’s Motion, and Schedule “A” of this Order.
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` 2
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`Case 0:22-cv-60729-WPD Document 88 Entered on FLSD Docket 07/28/2022 Page 3 of 9
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`defendant’s default does not in itself warrant the court entering a default judgment.” DirecTV, Inc.
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`v. Huynh, 318 F. Supp. 2d 1122, 1127 (M.D. Ala. 2004) (quoting Nishimatsu Constr. Co., Ltd. v.
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`Houston Nat’l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)). Granting a motion for default judgment
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`is within the trial court’s discretion. See Nishimatsu, 515 F.2d at 1206. Because the defendant is
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`not held to admit 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 entered. See
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`id.; see also Buchanan v. Bowman, 820 F.2d 359, 361 (11th Cir. 1987) (“[L]iability is well-pled
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`in the complaint, and is therefore established by the entry of default … .”). Upon a review of
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`Plaintiff’s submissions, it appears there is a sufficient basis in the pleading for the default judgment
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`to be entered in favor of Plaintiff.
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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 valid and
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`registered with the United States Copyright Office, Registration Number PA0001872685 (the
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`“Copyrighted Work”). See Exhibit 1 to Complaint, [DE 1-1] containing a copy of the U.S.
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`Copyright Office’s online record for this work. See Declaration of Randy Hermann, [DE 6-1] at
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`4. Plaintiff has exclusive rights in and to the Copyrighted Work. Id.
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`Defendants, through the various Internet based e-commerce stores operating under each of
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`the Seller IDs identified on Schedule “A” hereto (the “Seller IDs”) have advertised, promoted,
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`offered for distribution, distributed and/or publicly performed the Copyrighted Work under what
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`Plaintiff has determined to be counterfeits, infringements, reproductions, and/or colorable
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`imitations of the Copyrighted Work. See Declaration of Randy Hermann, [DE 6-1] at 10-13; see
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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.
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`also Declaration of Richard Guerra, [DE. 6-2] at 4.
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`Plaintiff has submitted sufficient evidence showing each Defendant has infringed the
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`Copyrighted Work at issue. See Declaration of Randy Hermann, [DE 6-1] at 10-13, and Schedule
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`“C” to Declaration of Richard Guerra3. Defendants are not now, nor have they ever been,
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`authorized or licensed to use, reproduce, or make counterfeits, reproductions, or colorable
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`imitations of the of the Copyrighted Work nor are Defendants authorized or licensed to distribute
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`the Copyrighted Work. See Declaration of Randy Hermann, [DE 6-1] at 10-13.
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`As part of its ongoing investigation regarding the sale of counterfeit and infringing
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`products, Plaintiff hired a third party investigatory to access Defendants’ Internet based e-
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`commerce stores operating under each of the Seller IDs. The third party investigator initiated
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`orders from each Seller IDs for the purchase of various products, all bearing, or suspected of
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`bearing, counterfeits of the Copyrighted Work, and requested each product to be shipped to an
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`address in the Southern District of Florida. Accordingly, Defendants’ Goods are being promoted,
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`advertised, offered for sale, and sold by Defendants within this district and throughout the United
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`States. See Declaration of Richard Guerra [DE 6-2] at 5. A representative for Plaintiff personally
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`analyzed the products offered for sale which incorporated unauthorized reproductions and/or
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`derivatives of the Copyrighted Work at issue in this action, wherein orders were initiated via each
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`of the Seller IDs by reviewing the e-commerce stores operating under each of the Seller IDs, or
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`the detailed web page captures and images of the items bearing the Copyrighted Work, and
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`concluded the products were non-genuine, unauthorized products. See Declaration of Randy
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`Hermanna, [DE 6-1] at 13.
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`3 Evidence of each Defendant’s infringement was attached as Exhibit 1 to the Declaration of Richard Guerra
`in Support of Plaintiff’s Motion for Entry of Final Default Judgment. Due to the size restriction for filing with the
`CM/ECF, the exhibit to the declaration was filed separately, in parts, in order to meet the maximum allowable size
`constraints on July 12, 2022.
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`III. ANALYSIS
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`A.
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`Claims
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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 Copyright Act, 17
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`U.S.C. §§ 106(1), (3) and (4), Plaintiff must “satisfy two requirements to present a prima facie
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`case of direct copyright infringement: (1) they must show ownership of the allegedly infringed
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`material, and (2) they must demonstrate that the alleged infringers violated at least one exclusive
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`right granted to copyright holders under 17 U.S.C. § 106." A&M Records, Inc. v. Napster, Inc.,
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`239 F.3d 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 elements for
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`the claim as described above. See [DE 1]. Moreover, the factual allegations in Plaintiff’s Complaint
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`have been substantiated by sworn declarations and other evidence and establish Defendants’
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`liability under the claim asserted in the Complaint. Accordingly, default judgment pursuant to
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`Federal Rule of Civil 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 injunction “on such
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`terms as it may deem reasonable to prevent or restrain infringement of a copyright.” See 17 U.S.C.
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`§ 502(a). Indeed, injunctive relief is the remedy of choice where there is no adequate remedy at
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`law for the injury caused by a defendant’s continuing infringement. Burger King Corp. v. Agad,
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`911 F. Supp. 1499, 1509-10 (S.D. Fla. 1995) (citing Century 21 Real Estate Corp. v. Sandlin, 846
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`F.2d 1175, 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’ failure to
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`respond or otherwise appear in this action makes it difficult for Plaintiff to prevent further
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`infringement absent an injunction. See Jackson v. Sturkie, 255 F. Supp. 2d 1096, 1103 (N.D. Cal.
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`2003) (“[D]efendant’s lack of participation in this litigation has given the court no assurance that
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`defendant’s infringing activity will cease. Therefore, plaintiff is entitled to permanent injunctive
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`relief.”)
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`Permanent injunctive relief is appropriate where a plaintiff demonstrates that (1) it has
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`suffered irreparable injury; (2) there is no adequate remedy at law; (3) the balance of hardship
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`favors an equitable remedy; and (4) an issuance of an injunction is in the public’s interest. eBay,
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`Inc. v. MercExchange, LLC, 547 U.S. 388, 392-93 (2006). Plaintiff has carried its burden on each
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`of the four factors. Accordingly, permanent injunctive relief is appropriate.
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`Plaintiff has no adequate remedy at law so long as Defendants continue to operate the Seller
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`IDs because Plaintiff cannot control the quality of what appears to be its products in the
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`marketplace. An award of monetary damages alone will not cure the injury to Plaintiff’s reputation
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`and goodwill that will result if Defendants’ infringing and counterfeiting and infringing actions
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`are allowed to continue. Moreover, Plaintiff faces hardship from loss of sales and its inability to
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`control its reputation in the marketplace. By contrast, Defendants face no hardship if they are
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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 against
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`Defendants to prevent consumers from being misled by Defendants’ counterfeit products. See
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`Nike, Inc. v. Leslie, 1985 WL 5251, at *1 (M.D. Fla. June 24, 1985) (“[A]n injunction to enjoin
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`infringing behavior serves the public interest in protecting consumers from such behavior.”). The
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`Court’s broad equity powers allow it to fashion injunctive relief necessary to stop Defendants’
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`infringing activities. See, e.g., Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 15
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`(1971) (“Once a right and a violation have been shown, the scope of a district court’s equitable
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`powers to 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 the particular
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`case.” (citation and internal quotation marks omitted)); United States v. Bausch & Lomb Optical
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`Co., 321 U.S. 707, 724 (1944) (“Equity has power to eradicate the evils of a condemned scheme
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`by prohibition of the use of admittedly valid parts of an invalid whole.”).
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`Defendants have created an Internet-based infringement scheme in which they are profiting
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`from their deliberate misappropriation of Plaintiff’s rights. Accordingly, the Court may fashion
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`injunctive relief to eliminate the means by which Defendants are conducting their unlawful
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`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 damages per
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`infringed work. See 17 U.S.C. § 504(c)(1) (“[T]he copyright owner may elect, at any time before
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`final judgment is rendered, to recover, instead of actual damages and profits, an award of statutory
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`damages . . . .”); Arista Records, Inc. v. Beker Enters., Inc., 298 F. Supp. 2d 1310, 1312 (S.D. Fla.
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`2003). With respect to any one work, the Copyright Act permits a minimum award of $750 and a
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`maximum award of $30,000. 17 U.S.C. § 504(c)(1). In a case where the copyright owner sustains
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`the burden of proving, and the court finds, that infringement was committed willfully, the court in
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`its discretion may increase the award of statutory damages to a sum of not more than $150,000.
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`17 U.S.C. § 504(c)(2). A district court has broad discretion for determining statutory damages and
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`should consider both the willfulness of the defendant’s conduct and the deterrent value of the
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`sanction imposed. Cable/Home Commc’n Corp. v. Network Prods., Inc., 902 F.2d 829, 852 (11th
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`Cir. 1990); see also United Feature Syndicate, Inc. v. Sunrise Mold Co., Inc., 569 F. Supp. 1475,
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`1480 (S.D. Fla. 1983) (“In determining the amount of statutory damages to award plaintiff, the
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`Court must 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.” Milk Money
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`Music v. Oakland Park Entertainment Corp., No. 09-CV-61416, 2009 WL 4800272, at *2 (S.D.
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`Fla. Dec. 11, 2009) (citing F.W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 233
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`(1952)). This is true even where the violation is not injurious and unprofitable. See F.W.
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`Woolworth Co., 344 U.S. at 233.
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`This Court may award statutory damages “without holding an evidentiary hearing based
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`upon affidavits and other documentary evidence if the facts are not disputed.” Perry Ellis Int’l,
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`Inc. v. URI Corp., No. 06-22020-CIV, 2007 WL 3047143, at *1 (S.D. Fla. Oct. 18, 2007).
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`Although the Court is permitted to conduct a hearing on a default judgment in regards to damages
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`pursuant to Fed. R. Civ. P. 55(b)(2)(B), an evidentiary hearing is not necessary where there is
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`sufficient evidence on the record to support the request for damages. See SEC v. Smyth, 420 F.3d
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`1225, 1232 n.13 (11th Cir. 2005) (“Rule 55(b)(2) speaks of evidentiary hearings in a permissive
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`tone . . . We have held that no such hearing is required where all essential evidence is already of
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`record.”) (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 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, the Court
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`is permitted to award up to $150,000.00 per infringing work as statutory damages to ensure that
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`Defendants do not continue their intentional and willful counterfeiting activities.
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`The evidence in this case demonstrates that each Defendant sold, promoted, distributed,
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`advertised, and/or offered for sale products bearing infringements of the Copyrighted Work. See
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`[DE. 1]. Based on the above considerations, Plaintiff suggests the Court award statutory damages
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`of $150,000.00 against each Defendant. The award should be sufficient to deter Defendants and
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`others from continuing to counterfeit or otherwise infringe Plaintiff’s copyrights, compensate
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`Plaintiff, and 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 U.S.C. § 504(c)
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`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 Motion [DE
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`69] is GRANTED against those Defendants listed in the attached Schedule “A.” Final Default
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`Judgment will be entered by separate order.
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`DONE AND ORDERED in Chambers at Fort Lauderdale, Broward County, Florida, this
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`28th day of July, 2022.
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`cc:
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`counsel of record
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