Case 2:21-cv-15681-WJM-AME Document 35 Filed 11/07/22 Page 1 of 7 PageID: 306
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF NEW JERSEY
`
`STRIKE
`
`3 HOLDINGS, LLC,
`
`Plaintiff,
`
`V.
`
`JOHN
`DOE subscriber assigned IP address
`96.242.<
`53..79,
`
`Defendant
`
`WILLIAM J. MARTINI, U.S.DJ.:
`
`Civ. No.: 21-15681 (WJM)
`
`OPINION
`
`Plaintiff Strike 3 Holdings, LLC ("Strike 3") brings this action against Defendant
`John Doe subscriber assigned IP address 96.242.53.79 alleging copyright infringement of
`Plaintiffs motion pictures. Currently before the Court is Plaintiffs unopposed motion for
`default Judgment. See Fed. R. Civ. P. 55(b)(2). For the reasons set forth below. Plaintiffs
`motion is GRANTED and Plaintiff is awarded relief pursuant to the Order accompanying
`this Opinion.
`
`I. BACKGROUND
`
`Strike 3 Is the owner of original adult films that are registered with the United States
`Copyright Office. Am, Compl. fl 2, 45, 58, ECF No. 12. These films are distributed
`through Strike 3's subscription-based websites and DVDs. Id fl 3, 13. Strike 3 also
`licenses its films to other broadcasters. Id ^ 13. Strike 3 alleges that Defendant infringed
`upon 27 of its works by downloading them and distributing them to others using the
`BitTorrent file network ("BitTorrent") in violation of the Copyright Act, 17 U.S.C. §§ 106
`and 501. Id. 1^)4, 57-62. Strike 3 specifically states that it used VXN Scan, an infringement
`detection system that it developed, to identify and capture Defendant's BitTorrent
`transactions sharing pieces of 27 digital media files. Id. ^ 27-37. Strike 3 determined that
`these digital media files were identical or substantially similar to its copyrighted films. Id.
`
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`II. PROCEDURAL HISTORY
`
`Strike 3 initiated this action on August 19, 2021. Compl., ECF No. 1. Soon after,
`Strike 3 was granted leave to file a thlrd-party subpoena on Defendant's internet service
`provider to obtain Defendants name and address. Ordei\ Sept. 28, 2021, ECF No. 7. On
`January 6, 2022, Strike 3 filed an Amended Complaint that identified the Defendant by
`name and address. Am. CompL, ECF No. 12. Service was effectuated on January 12,
`2022. Return of Service, ECF No. 16. Defendant failed to answer or otherwise respond to
`the Amended Complaint, and at Strike 3^s request, the Clerk entered default against
`Defendant on April 21, 2022. PL'S Req. for Default, ECF No. 22. On May 12, 2022,due
`to Defendant's continued failure to plead or otherwise defend the action. Strike 3 filed the
`instant motion for Default Judgment. Pl.'s Notice of Mot., ECF No. 28. Strike 3 seeks a
`permanent injunction enjoining Defendant from continuing to infringe Strike 3's films and
`requiring Defendant to delete the films in Defendant's possession, custody, or control. Id.
`at 2, ^ 2-4. Strike 3 also requests statutory damages, costs, and post-judgment interest.
`Id, at ^[K 5-8. Defendant has again failed to respond.
`
`III. DISCUSSION
`
`A. Legal Standard
`
`"Pursuant to Federal Rule of Civil Procedure 55(b)(2), a court may enter a default
`judgment against a properly served defendant who fails to plead or otherwise defend an
`action." Dempsey v. Pistol Pete's Beef N Beer, LLC, No. CIV. 08-5454, 2009 WL
`3584597, at ^2 (D.NJ. Oct. 26, 2009) (citing Anchorage As socs. v. V.L Bd. of Tax Review,
`922 F.2d 168, 177 n.9 (3d Cir. 1990)). While "the entry of a default judgment is left
`primarily to the discretion of the district court[J" the Third Circuit has "repeatedly stated
`[its] preference that cases be disposed of on the merits whenever practicable." Hritz v.
`Woma Corp., 732 F.2d 1178, 1180-81 (3d Cir. 1984). As such, "prior to entering a
`judgment of default, a court must determine: (1) whether the plaintiff produced sufficient
`proof of valid service and evidence of jurisdiction, (2) whether the unchallenged facts
`present a legitimate cause of action, and (3) whether the circumstances otherwise render
`the entry of default judgment 'proper.'" Chanel, Inc. v. Matos, 133 F. Supp. 3d 678, 683
`(D.NJ. 2015) (footnote omitted).
`
`The Court determines each of these considerations in turn. "In considering a motion
`for a default judgment under Rule 55(b)(2), a district court should accept as true the well-
`pleaded factual allegations of the complaint, but the court need not accept the moving
`party's legal conclusions or allegations relating to the amount of damages." Polidoro v.
`Saluti, 675 F. App'x 189, 190 (3d Cir. 2017). "[T] he plaintiff must prove that he is entitled
`to the damages sought." Id.
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`B. Jurisdiction, Service, and Venue
`
`The Court has subject matter jurisdiction over this case pursuant to 28 U.S.C. §§
`1331 and 1338. Because service was effectuated pursuant to New Jersey Court Rule 4:4"
`4(a)(l), see Return of Service, ECP No. 16, the Court also has personal jurisdiction over
`the Defendant. See Fed, R. Civ. P. 4(k)(l)(A); Erwm v. Waller Cap. Partners, LLC, No.
`lO-cv-03283, 2010 WL 4053553, at ^3 (D.N.J. Oct. 14, 2010) ("Under New Jersey Court
`Rule 4;4-4(a), service within the State of New Jersey is sufficient to establish personal
`jurisdiction over a defendant."). Venue is proper pursuant to both 28 U.S.C. §§ 1400(a)
`and 1391(b)(l) and (2) because "Defendant resides in this District and a substantial part of
`the events giving rise to Plaintiffs claim occurred here[.]" Strike 3 Holdings, LLC, v. Doe,
`No. 21-15638, 2022 WL 14838018, at ^3 (D.N.J. Oct. 26, 2022); see Am. Compl. ^ 9-10.
`
`In this District, "it is not enough for a plaintiff in a copyright infringement case to
`simply tie a defendant to an IP address." Strike 3 Holdings, LLC v. Vokozm, No. 20-cv-
`14321,2022 WL 310201, at ^3 (D.NJ. Feb. 2, 2022). Plaintiff has pleaded enough facts
`to sufficiently connect Defendant personally to the infringing BitTorrent activity by
`investigating Defendant s publicly available social media profiles and confirming that it
`demonstrates interests in adult film performers, including Alex Grey, who stars in
`Plaintiffs Works. Am. CompL ^} 54-56; see, e.g.. Media v. Rahuse, No. 14-6976, 2015
`WL 2231853, at M (D.NJ. May 11, 2015) (finding that Plaintiff sufficiently connected
`Defendant personally to evidence ofBitTorrent use by investigating Defendant's publicly
`available social media profiles).
`
`C. Legitimate Cause of Action
`
`Strike 3 alleges one count of copyright infringement and has pleaded sufficient facts
`to present a legitimate cause of action. "To show copyright infringement, a plaintiff must
`establish '(1) the ownership of a valid copyright, and (2) copying of constituent elements
`of the work that are original."' Douglas v. Osteen, 317 F, App'x 97, 99 (3d Cir. 2009)
`(quoting Feist Piibl'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Plaintiff
`clearly asserts that it owns valid copyrights for the works at issue. See Am. Compl. ^ 42,
`Ex. A (setting forth copyright information for each work at issue). Plaintiff also
`comprehensively alleges that Defendant copied original elements of its copyrighted works
`and sufficiently describes the manner by which the Defendant infringed upon these works.
`See Am. Compl. ^ 31-34 (describing Plaintiffs identification and review of .torrent files
`that infringe upon Plaintiffs copyrighted works); Am. CompL ^ 27-31, 35-41 (describing
`Plaintiffs use of VXN Scan to download files from the Defendant via the BitTorrent
`network that have the same "Info Hash" value as the infringing .torrent files). As such,
`Plaintiff has sufficiently presented a legitimate cause of action for copyright infringement.
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`D. Propriety of Default Judgment under Chamberlain
`
`Because "the Complaint demonstrates a valid cause of action, the Court must then
`determine whether Plaintiff is entitled to default judgment." Richardson v. Cascade
`SkatmgRmk^o. CV 19-08935, 2020 WL 7383188, at n (D.NJ. Dec. 16, 2020). "Three
`factors control whether a default judgment should be granted: (1) prejudice to the plaintiff
`if default is denied, (2) whether the defendant appears to have a litigable defense^ and (3)
`whether defendant's delay is due to culpable conduct." Chamberlain v. Giampapa^ 210
`F.3d 154, 164 (3d Cir. 2000). All three of these factors weigh in favor of granting default
`judgment.
`
`First, Strike 3 will be prejudiced absent a default judgment. Because the Defendant
`has not responded to Strike 3's claims. Strike 3 is "left with no other means to vindicate
`[its] claims." United States v. Vo, No. 15-6327, 2016 WL 475313, at ^3 (D.N.J. Feb. 8,
`2016). "Not entering default judgment would simply result in an interminable delay during
`which Defendant continues to violate Plaintiffs rights." Strike 3 Holdings, LLC v. Vokoun,
`No. 20-CV-1432L 2022 WL 310201, at M (D.N.J. Feb. 2, 2022).
`
`Second, a meritorious defense is one that, "if established on trial, would constitute
`a complete defense to the action." United States v. $55,518.05 in U.S. Currency, 728 F.2d
`192, 195 (3d Cir. 1984). The Court cannot consider Defendant's defenses, if any exist,
`because the Defendant has failed to respond to this action. See, e.g.^ Teamsters Health &
`Welfare Fzmd of Philadelphia &. Vicinity v. Dubin Paper Co., No. 1 l-cv-7137, 2012 WL
`3018062, at U (D.N.J. July 24,2012). As such, "no meritorious defense presently exists
`with respect to deciding this motion for default judgment." Vo, 2016 WL 475313,at ^3.
`
`Third, the Court presumes that the Defendant is culpable due to its failure to respond
`to this action. See, e.g., Joe Hand Promotions, Inc. v. Waldron, No. CIV. 11-849, 2013
`WL 1007398, at ^4 (D.NJ. Mar. 13,2013) ("[The] Defendants' failure to respond permits
`the Court to draw an inference of culpability on their part.").
`
`Because all three Chamberlain factors weigh against the Defendant, the Court holds
`that Strike 3 is entitled to default judgment on Its claim of copyright infringement. The
`Court must now assess remedies.
`
`E. Remedies
`
`Strike 3 requests permanent injunctive relief, statutory damages, and costs. PL'S
`Notice of Mot. 2, ^ 1-8. In a motion for default Judgment, allegations relating to damages
`will not be taken as true. See Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir.
`1990) ("A consequence of the entry of a default judgment is that 'the factual allegations of
`the complaint, except those relating to the amount of damages, will be taken as true.'").
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`a. Permanent. Injunctive Relief
`
`Strike 3 seeks a permanent injunction to bar Defendant from continuing to infringe
`upon its copyrighted works and to require Defendant to delete and permanently remove
`copies of the works that Defendant has on computers under its possession, custody, or
`control. PL'S Notice of Mot. 2, ^ 2-4.
`
`Under the Copyright Act, district courts are authorized to "grant temporary and final
`injunctions on such terms as it may deem reasonable to prevent or restrain infringement of
`a copyright." 17 U.S.C. § 502(a). Further, "[a]s part of a final judgment. . . , the court
`may order the destruction. .. of all copies . ., found to have been made or used in violation
`of the copyright owners exclusive rights, and of all . . . articles by means of which such
`copies . . . may be reproduced." 17 U.S.C. § 503(b). To obtain a permanent injunction
`under § 502(a), "a plaintiff must demonstrate (1) irreparable harm; (2) the inadequacy of
`remedies at law, such as damages; (3) that the balance of hardships tips in plaintiffs
`direction; and (4) that the public interest is served." Ottomanson, Inc. v. UCAI, LLC, No.
`CV 19-8775,2020 WL 205945, at M (D.N.J. Jan. 10, 2020) (citing eBay v. MercExchange,
`LLC, 547 U.S. 388, 393-94 (2006)); see also TDBankN.A. v. Hill, 928 F.3d 259, 278 (3d
`Cir. 2019).
`
`First, Plaintiff asserts that it has suffered irreparable harm because nothing other
`than an injunction "will prevent Defendant from continuing to infringe on Plaintiffs
`copyrighted works by distributing them to others using the BitTorrent protocol." PI.'s Br.
`24. Contrary to the case law cited by Plaintiff in support of this assertion, PL'S Br. 24-25,
`"irreparable harm can no longer be presumed based on continued infringement and a
`likelihood of success on the merits." Hill, 928 FJd at 280 (citations omitted). However,
`"a 'substantial likelihood" of continuing infringement Is [still] necessary to obtain
`permanent injunctive relief," id (citations omitted), and Plaintiffs claim that Defendant
`will continue its infringement is "a credible assertion given [Defendants] failure to
`respond to the complaint[J" Malibu Media, LLC v. Ft/nderburg, No. 1:13-CV-02614,2015
`WL 1887754, at M (N.D. 111. Apr, 24, 2015). Additionally, "due to the nature of
`BitTorrent, tracing the extent and magnitude of the damage is impossible." Strike 3
`Holdings, LLC v. Doe, No. 18-CV-OH73, 2019 WL 1277561, at ^7 (N.D. Cal. Mar. 20,
`2019). Irreparable harm has been found where, as here, the defendant failed to respond to
`plaintiffs claims and where the plaintiff was unable to ascertain the amount of past
`damages and continuing infringements. See Ottomanson, Inc.^ 2020 WL 205945, at ^A
`(noting that irreparable harm is no longer presumed in copyright cases but granting
`permanent injunction "in the specialized context of a default judgment" where "[t]he
`defendant has declined to answer or respond, and the plaintiff cannot ascertain even its past
`damages, let alone the fact or amount of continuing infringements"). As such, the Court
`finds that Strike 3 has suffered an irreparable harm.
`
`Second, "because there is a significant risk that Defendant will continue to infringe
`without an injunction and because the harm is ongoing and not past in nature, monetary
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`damages are not enough." Strike 3 Holdings, LLCv. Vokoun, No. 20-cv-14321, 2022 WL
`310201, at ^5 (D.NJ. Feb. 2,2022).
`
`Third, the balance of hardships tips in Plaintiffs direction because "[t]he only
`hardship imposed upon the Defendant [by an injunction] is that they obey the law." Malibu
`Media, LLC v. Toshi Yamada, No. CV17H83, 2019 WL 1586813, at ^3 (D.NJ. Apr. 12,
`2019) (first alteration in original) (citation and internal quotation marks omitted).
`
`Fourth, members of the public will not be harmed by the issuance of a permanent
`injunction because they can still "access Plaintiffs copyrighted works by purchasing
`access through legal channels." Vokoun, 2022 WL 310201, at ^5 (citing^///, 928 F.3d at
`285).
`
`Accordingly, Strike 3 is entitled to the injunctive relief it has requested.
`
`b. Minimum Statutory Damages
`
`Strike 3 requests statutory damages in the amount of $20,250.00, or $750.00 per
`infringement, which is the minimum statutory award under 17 U.S.C. § 504(c)(l). Pl/s
`Br. 25-27. "[W]hen liability is established through default judgment rather than the merits,
`courts routinely award the minimum statutory damages amount." Malibti Media, LLC v.
`Tsao, No. CV 15-6672, 2016 WL 3450815, at ^4 (D.N.J. June 20, 2016). The Court finds
`that the requested relief is just and accordingly awards $20,250.00 in statutory damages to
`Strike 3. See id. at ^5 (collecting cases and finding an award of $750.00 per infringement
`to be "appropriate, reasonable, and [sufficient to] deter future infringements from
`Defendant as well as compensate Plaintiff).
`
`c. Statutory Filing Fee and Service Costs
`
`Plaintiff also seeks recovery of costs under 17 U.S.C. § 505. Plaintiff has submitted
`documentation of $507.00 in costs that it has incurred in relation to this action-
`specifically certifying that it has paid $402.00 in filing and administrative fees and $ 105.00
`in service costs. PL'S Br. 27; Atkrn. Cert. U 22-23, Ex. A, ECF No. 28-2, The Court finds
`that these costs are reasonable and awards Strike 3 costs in the amount of $507.00. See
`Tsao,2016 WL 3450815,at ^5 (approving plaintiffs request for costs where the costs were
`reasonable and the defendant did not respond to the action).
`
`F. Defendant's Identity
`
`Plaintiff asks the Court to unseal documents filed under temporary seal in this matter
`and to identify Defendant by name and address so that Plaintiff may enforce the judgment.
`PL'S Br. 29. However, Plaintiff "takes no position" on whether the documents that have
`been permanently sealed in this case—the Amended Complaint, ECF No. 12, and the
`Return of Service, ECF No. 16—should be unsealed. Pl.'sBr. 29. The Defendant has not
`appeared or otherwise responded to this action, and consequently has not met its burden to
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`demonstrate "both (1) a fear of severe harm [from proceeding non-anonymously], and (2)
`that the fear of severe harm is reasonable." Doe v. Megless, 654 F.3d 404, 408 (3d Cir.
`2011) (citation and internal quotation marks omitted); see Strike 3 Holdings, LLC v. Doe,
`No. 20-CV-14321, 2021 WL 7286225, at M (D.NJ. Dec. 22, 2021) ("Since Defendant has
`not asserted any interest in remaining anonymous, the Court has no basis to conclude that
`this case presents exceptional circumstances that warrant proceeding anonymously.").
`Further, the Defendant has not been able to '"articulate the compelling, countervailing
`interests to be protected [that is required] to maintain the seal over the parts of the record
`that personally identify him." Strike 3 Holdings, LLC v. Doe, No. 21-15638, 2022 WL
`14838018, at *7 (D.N.J. Oct. 26,2022) (quoting In re Avandia M!^g., Sales Pracs. & Prod.
`Llab. Litfg., 924 F.3d 662, 678 (3d Cir. 2019)). The Clerk of Court will accordingly be
`directed to remove the pseudonym in the case caption to identify the Defendant by name
`and unseal the documents previously sealed in this action.
`
`IV. CONCLUSION
`
`For the reasons stated above, Plaintiff Strike 3's motion for default judgment is
`GRANTED. An appropriate order follows.
`
`Date: November 3, 2022
`
`r'MARTINI, U.S.D.J.
`
`