Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 1 of 16
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` UNITED STATES DISTRICT COURT
`EASTERN DISTRICT OF CALIFORNIA
`
`BMG MUSIC, a New York ) 1:08-cv-00111-LJO-SMS
`
`general partnership, et al., )
`)
`FINDINGS AND RECOMMENDATION RE:
`Plaintiffs,
`)
`PLAINTIFF’S MOTION FOR DEFAULT
`JUDGMENT (DOC. 19)
`
`v.
`TINA ESPINOZA,
`
`))
`
`))
`
`Defendant. )
`)
` )
`
`Plaintiffs are proceeding with a civil action in this Court.
`The matter has been referred to the Magistrate Judge pursuant to
`28 U.S.C. § 636(b) and Local Rules 72-302(c)(19) and 72-303.
`Pending before the Court is Plaintiffs’ motion for a default
`judgment against Defendant Tina Espinoza, filed on July 11, 2008,
`including a notice of motion and motion, a declaration of
`Dawniell Alise Zavala with exhibits, and a proposed order. By
`separate order the Court has vacated the hearing on the motion
`and has deemed the matter submitted to the Court for decision.
`I. Legal Standards on a Motion for Default Judgment
`A court has the discretion to enter a default judgment
`against one who is not an infant, incompetent, or member of the
`armed services where the claim is for an amount that is not
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 2 of 16
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`certain on the face of the claim and where 1) the defendant has
`been served with the claim; 2) the defendant’s default has been
`entered for failure to appear; 3) if the defendant has appeared
`in the action, the defendant has been served with written notice
`of the application for judgment at least three days before the
`hearing on the application; and 4) the court has undertaken any
`necessary and proper investigation or hearing in order to enter
`judgment or carry it into effect. Fed. R. Civ. P. 55(b); Alan
`Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392 (9th
`Cir. 1988). Factors that may be considered by courts in
`exercising discretion as to the entry of a default judgment
`include the nature and extent of the delay, Draper v. Coombs, 792
`F.2d 915, 924-925 (9 Cir. 1986); the possibility of prejudice to
`th
`the plaintiff, Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th
`Cir.1986); the merits of plaintiff's substantive claim, id.; the
`sufficiency of the allegations in the complaint to support
`judgment, Alan Neuman Productions, Inc., 862 F.2d at 1392; the
`amount in controversy, Eitel v. McCool, 782 F.2d at 1471-1472;
`the possibility of a dispute concerning material facts, id.;
`whether the default was due to excusable neglect, id.; and the
`strong policy underlying the Federal Rules of Civil Procedure
`that favors decisions on the merits, id.
` A default judgment generally bars the defaulting party from
`disputing the facts alleged in the complaint, but the defaulting
`party may argue that the facts as alleged do not state a claim.
`Alan Neuman Productions, Inc. v. Albright, 862 F.2d 1388, 1392.
`Thus, well pleaded factual allegations, except as to damages, are
`taken as true; however, necessary facts not contained in the
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 3 of 16
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`pleadings, and claims which are legally insufficient, are not
`established by default. Cripps v. Life Ins. Co. of North America,
`980 F.2d 1261, 1267 (9 Cir. 1992); TeleVideo Systems, Inc. av.
`th
`Heidenthal, 826 F.2d 915, 917 (9 Cir. 1987).
`th
`II. Service, Entry of Default, Notice, and Status of
` Defendant
`The sworn proof of service filed on March 10, 2008, reflects
`that on February 2, 2008, the summons and complaint were
`personally served on Defendant by a registered process server.
`(Doc. 7.) This service is sufficient pursuant to Fed. R. Civ. P.
`4(e)(2)(A).
`The declaration of Dawniell Alise Zavala, Plaintiffs’
`counsel, establishes that after service and Defendant’s failure
`to file a timely response, Plaintiffs’ counsel sent Defendant a
`letter advising her that further failure to respond would subject
`her to the risk of a default judgment against her for all the
`relief sought in the complaint. (Decl., Ex. 2.) The letter
`referred to a previous conversation on March 14, 2008, in which
`options for resolving the suit were discussed, and it expressed
`hope that the matter could be resolved by settlement. (Id.)
`Pursuant to Plaintiffs’ request, the Clerk entered default
`as to Defendant on May 28, 2008. (Decl., Ex. 3.) Plaintiffs
`served the clerk’s certificate of default on Defendant by mail on
`the same date. (Decl., Ex. 4.) Defendant was served with the
`motion for default judgment by mailing on July 11, 2008. Thus,
`Defendant has received the notice required by Fed. R. Civ. P.
`55(b)(2).
`Further, the notice was adequate pursuant to Fed. R. Civ. P.
`55(d) and 54(c), which require that a judgment by default shall
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 4 of 16
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`not be different in kind from or exceed in amount that prayed for
`in the demand for judgment. Plaintiff expressly sought in the
`complaint the types of relief sought by the instant application
`for default judgment, including injunctive relief, statutory
`damages at the election of Plaintiff, and costs and fees. (Compl.
`at pp. 5-6.) The failure to allege a specific sum in the
`complaint does not prevent entry of a default judgment for a
`certain sum or a sum that can be made certain where appropriate
`notice has otherwise been given. See Appleton Elec. Co. v. Graves
`Truck Line, 635 F.2d 603, 611 (7 Cir. 1980).
`th
`Thus, the Court finds that Plaintiff gave adequate notice of
`the nature and amount of its claim.
`Finally, in the declaration, Zavala states that she is
`informed and believes that Defendant is neither a minor nor an
`incompetent person; further, a search for Defendant’s name
`conducted in the Department of Defense-Manpower Data Center
`revealed no evidence that Defendant is on active duty in the
`military service. (Decl. ¶¶ 16-17, Ex. 6.)
`Thus, it appears that with respect to notice and status, a
`default judgment would be appropriate with respect to Defendant
`Christina Higareda.
`III. Legal Sufficiency of the Complaint
`An infringer of copyright is liable for actual damages and
`any additional profits of the infringer attributable to the
`infringement. 17 U.S.C. § 504(a). An infringer is anyone who
`violates any of the exclusive rights of the copyright owner as
`provided by sections 106 through 118. 17 U.S.C. § 501(a).
`Copyright protection subsists in original works of authorship,
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 5 of 16
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`including pictorial and graphic works and sound recordings. 17
`U.S.C. § 102. The owner of a copyright has the exclusive rights
`to perform or authorize the reproduction of the copyrighted work
`in copies, prepare derivative works based on the copyrighted
`work, distribute copies to the public by sale or other transfer
`of ownership, and display the copyrighted work publicly. 17
`U.S.C. § 106.
`Thus, to prevail on a claim for infringement of copyright
`under 17 U.S.C. § 501, Plaintiffs must establish that Defendant
`violated an exclusive right of the copyright owner as provided in
`17 U.S.C. §§ 106, 501(a). Elektra Entertainment Group Inc. v.
`Crawford, 226 F.R.D. 388, 392-93 (C.D.Cal. 2005). This means that
`to establish a prima facie case of direct infringement,
`Plaintiffs must show 1) ownership of the allegedly infringed
`material, and 2) the infringer’s violation of at least one
`exclusive right granted to copyright holders under 17 U.S.C. §
`106. Marder v. Lopez, 450 F.3d 445, 453 (9 Cir. 2006).
`th
`Here, Plaintiffs alleged that Plaintiffs owned the
`copyrights or were the licensees of exclusive rights under the
`United States copyright law with respect to ten specific
`recordings ; each sound recording was the subject of a valid
`1
`certificate of copyright registration issued by the Register of
`Copyrights; Plaintiffs owned the exclusive rights under copyright
`law in the United States to reproduce and distribute the
`
`1
` The recordings’ titles were listed as Siempre en Mi Mente, Te Quiero, Me Estoy Enamorando, Let You
`Down, Lonely, Red Red Wine, Me Nortie, Que Se Te Olvido, Encore, and Untitled.. (Cmplt. at 9, Ex. A.)
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 6 of 16
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`copyrighted recordings. (Cmplt. p. 3 , ¶¶ 11-12.) Plaintiffs then
`2
`alleged that without Plaintiffs’ permission or consent, Defendant
`used and continues to use an online media distribution system to
`download the recordings and distribute them to the public in
`violation of Plaintiffs’ exclusive rights of reproduction and
`distribution; Defendant thereby infringed Plaintiffs’ exclusive
`rights. (Cmplt. pp. 4.-5) Plaintiff further alleged expressly
`that the acts of infringement were willful, intentional, and with
`disregard and indifference for Plaintiffs’ rights. (Id. at ¶¶ 19-
`20.)
`
`Accordingly, Plaintiffs have adequately stated claims for
`copyright infringement.
`IV. Discretionary Considerations
`Here, it does not appear that there is any risk of mistake
`or excusable neglect on the part of anyone with a potential
`interest in the subject matter of the instant action. Further,
`there is no apparent likelihood of a dispute as to a material
`fact essential to the Plaintiffs’ case. No just cause for delay
`appears. It is apparent from the declaration submitted to the
`Court that Defendant is not an infant, incompetent, or member of
`the armed services. There does not appear to be any reason why
`the general policy in favor of a decision on the merits would
`warrant refusing to enter the requested default judgment.
`Accordingly, the Court finds that Plaintiffs have shown
`their entitlement to a default judgment.
`
`2
` References to page numbers of documents filed with the Court are to the numbers assigned by the Court’s
`filing system reflected in the heading at the top of each page of a filed document, as distinct from the pagination
`indicated by the author of the document.
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 7 of 16
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`V. Damages
`Plaintiffs request statutory damages pursuant to 17 U.S.C. §
`504(c) for Defendant’s infringement of each of the ten
`recordings.
`Title 17 U.S.C. § 504 provides in pertinent part:
`(a) In General. Except as otherwise provided by
`this title, an infringer of copyright is liable
`for either--
`(1) the copyright owner’s actual damages
`and any additional profits of the infringer,
`as provided by subsection (b); or
`(2) statutory damages, as provided by
`subsection (c).
`....
`(c) Statutory Damages.--
`(1) Except as provided by clause (2) of this
`subsection, the copyright owner may elect, at
`any time before final judgment is rendered,
`to recover, instead of actual damages and
`profits, an award of statutory damages for
`all infringements involved in the action,
`with respect to any one work, for which any
`one infringer is liable individually, or for
`which any two or more infringers are liable
`jointly and severally, in a sum of not less
`than $750 or more than $30,000 as the court
`considers just. For the purposes of this
`subsection, all the parts of a compilation or
`derivative work constitute one work.
`(2) In a case where the copyright owner
`sustains the burden of proving, and the court
`finds, that infringement was committed
`willfully, the court in its discretion may
`increase the award of statutory damages to a
`sum of not more than $150,000. In a case
`where the infringer sustains the burden of
`proving, and the court finds, that such
`infringer was not aware and had no reason to
`believe that his or her acts constituted an
`infringement of copyright, the court in its
`discretion may reduce the award of statutory
`damages to a sum of not less than $200. The
`court shall remit statutory damages in any
`case where an infringer believed and had
`reasonable grounds for believing that his or
`her use of the copyrighted work was a fair
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 8 of 16
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`use under section 107, if the infringer was:
`(i) an employee or agent of a nonprofit
`educational institution, library, or archives
`acting within the scope of his or her
`employment who, or such institution, library,
`or archives itself, which infringed by
`reproducing the work in copies or
`phonorecords; or (ii) a public broadcasting
` entity which or a person who, as a regular
` part of the nonprofit activities of a public
` broadcasting entity (as defined in subsection (g)
` of section 118) infringed by performing a published
` nondramatic literary work or by reproducing a
` transmission program embodying a performance of
` such a work. (Emphasis added.)
`A district court has wide discretion in determining the amount of
`statutory damages to be awarded and should consider what is just
`in the particular case in light of the nature of the copyright
`and the circumstances of the infringement. Los Angeles News
`Service v. Reuters Television International, Ltd., 149 F.3d 987,
`996 (9 Cir. 1998). The statutory damages serve both compensatory
`th
`and punitive purposes, so in order to effectuate the statutory
`policy of discouraging infringement, recovery of statutory
`damages is permitted even absent evidence of the actual damages
`suffered by a plaintiff or of the profits reaped by a defendant.
`Id.
`
`Defendant seeks the minimum statutory amount of $7,500.00,
`or $750.00 for each of the ten infringements. Statutory damages
`are particularly appropriate for cases in which the defendant
`defaults because the difficulty of ascertaining the plaintiff’s
`actual damages is increased in such cases. Jackson v. Sturkie,
`255 F.Supp.2d 1096, 1101 (N.D.Cal. 2003). Further, the Court
`considers the fact that the copyright relates to a sound
`recording. Considering all of the pertinent circumstances as
`demonstrated by the declaration and attachments submitted by
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 9 of 16
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`Plaintiffs, and in order to effectuate the purposes of the
`statute, the Court concludes that the minimum amount of
`$7,500.00 in damages for the multiple infringements is just and
`reasonable.
`VI. Injunctive Relief
`Plaintiffs pray for an injunction that states the following:
`Defendant shall be and hereby is enjoined from
`directly or indirectly infringing Plaintiffs’ rights
`under federal or state law in the Copyrighted
`Recordings and any sound recording, whether now in
`existence or later created, that is owned or controlled
`by Plaintiffs (or any parent, subsidiary, or affiliate
`record label of Plaintiffs) (“Plaintiffs’ Recordings”),
`including without limitation by using the Internet or
`any online media distribution system to reproduce
`(i.e., download) any of Plaintiffs’ Recordings, to
`distribute (i.e., upload) any of Plaintiffs’
`Recordings, or to make any of Plaintiffs’ Recordings
`available for distribution to the public, except
`pursuant to a lawful license or with the express
`authority of Plaintiffs. Defendant also shall destroy
`all copies of Plaintiffs’ Recordings that Defendant has
`downloaded onto any computer hard drive or server
`without Plaintiffs’ authorization and shall destroy all
`copies of those downloaded recordings transferred onto
`any physical medium or device in Defendant’s
`possession, custody, or control.
`(Mot. pp. 8-9, Cmplt. p. 5.)
`Title 17 U.S.C. § 502 states:
`(a) Any court having jurisdiction of a civil
`action arising under this title may, subject to the
`provisions of section 1498 of title 28, grant temporary
`and final injunctions on such terms as it may deem
`reasonable to prevent or restrain infringement of a
`copyright.
`(b) Any such injunction may be served anywhere in
`the United States on the person enjoined; it shall be
`operative throughout the United States and shall be
`enforceable, by proceedings in contempt or otherwise,
`by any United States court having jurisdiction of that
`person. The clerk of the court granting the injunction
`shall, when requested by any other court in which
`enforcement of the injunction is sought, transmit
`promptly to the other court a certified copy of all the
`papers in the case on file in such clerk's office
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 10 of 16
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`(emphasis added).
`As a general rule, absent a great public injury, a permanent
`injunction will be granted when liability has been established
`and there is a threat of a continuing violations. Cadence Design
`Systems, Inc. v. Avant! Corp., 125 F.3d 824, 829 (9 Cir. 1997);
`th
`MAI Systems Corp. v. Peak Computer, Inc., 991 F.2d 511, 520 (9th
`Cir. 1993) (issuing an injunction against further infringement of
`protected software rights where the plaintiff demonstrated that
`the defendant had computers in its loaner inventory with the
`protected software on it). Generally a party seeking a
`preliminary injunction must show either a likelihood of success
`on the merits and the possibility of irreparable injury, or that
`serious questions going to the merits were raised and the balance
`of hardships tips sharply in its favor; however, because in a
`copyright infringement claim a showing of a reasonable likelihood
`of success on the merits raises a presumption of irreparable
`harm, a plaintiff need only show a likelihood of success on the
`merits to obtain a preliminary injunction. Micro Star v. Formgen,
`Inc., 154 F.3d 1107, 1109 (9 Cir. 1998).
`th
`Here, Plaintiffs seek a permanent injunction. They have
`already shown actual success on the merits because their
`complaint states a claim for infringement, and Defendant has
`defaulted; further, Plaintiffs have alleged that unless
`restrained, Defendant will continue to cause irreparable injury
`for which there is no full monetary compensation. (Cmplt. pp. 4-
`5.) Plaintiff’s counsel declares that on July 16, 2007,
`investigators detected 473 audio files on Defendant’s computer
`that were being distributed by Defendant to millions of people
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 11 of 16
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`who used peer-to-peer networks. (Decl. ¶¶2-3.) This is sufficient
`for a permanent injunction. Sony Music Entertaniment, Inc. v.
`Global Arts Productions, 45 F.Supp.2d 1345, 1347 (S.D.Fla. 1999).
`An injunction against further infringement and even infringement
`of future works is permitted, and it is appropriate to grant an
`injunction on an application for default judgment. Princeton
`University Press v. Michigan Document Services, Inc., 99 F.3d
`1381, 1392-93 (6 Cir. 1996) (noting that an injunction of works
`th
`copyrighted in the future is supported by the weight of
`authority); Elektra Entertainment Group Inc. v. Crawford, 226
`F.R.D. 388, 393-94 (C.D.Cal. 2005) (granting a final injunction
`on default judgment to enjoin defendant from directly or
`indirectly infringing plaintiffs' rights under federal or state
`law in copyrighted recordings, whether then in existence or later
`created, where the requested terms of the injunction were the
`same as those prayed for in complaint, proposed injunctive relief
`was appropriate, the plaintiffs sent two letters to defendant
`before plaintiffs sought entry of default which warned of default
`judgment, defendant failed to respond to serious claims brought
`against him despite receiving adequate notice, and failure to
`grant injunction would have resulted in plaintiffs' continued
`exposure to harm with no method of recourse). If infringement is
`established, then it is appropriate as part of a final judgment
`to order the destruction or other reasonable disposition of all
`copies or phonorecords found to have been made or used in
`violation of the copyright owner’s exclusive rights and of all
`other articles by means of which such copies might be reproduced.
`17 U.S.C. § 503(b).
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`Here, Plaintiffs alleged that Defendant infringed and
`wilfully continued to use the on-line distribution system to
`distribute to the public the obviously copyrighted sound
`recordings and thereby is causing irreparable injury that cannot
`be measured or compensated in money. Further, it is alleged that
`Defendant continuously downloaded additional sound recordings
`owned by or exclusively licensed to Plaintiffs, and that
`Plaintiffs have no adequate remedy at law. (Cmplt. ¶¶ 17-18.)
`The requested terms of the injunction are the same as those
`prayed for in the complaint. Defendant’s lack of intent to comply
`with the copyright restrictions is demonstrated by the
`Defendant’s failure to reply to the letter that Plaintiffs sent
`to the Defendant which warned of enforcement of a default
`judgment, and by Defendant’s further failure to respond to
`serious claims brought against her despite receiving adequate
`notice. It appears that the failure to grant the requested
`injunction would result in Plaintiffs' continued exposure to harm
`with no method of recourse. There does not appear to be any
`public injury that would result from issuance of the injunction.
`Accordingly, the Court concludes that injunctive relief is
`appropriate.
`However, the injunctive relief sought is too broad.
`Generally an injunction must be narrowly tailored to remedy only
`the specific harms shown by the plaintiffs rather than to enjoin
`all possible breaches of the law; injunctive relief concerning a
`copyright will be limited to works that infringe on the
`Plaintiffs’ copyright. Iconix, Inc. v. Tokuda, 457 F.Supp.2d 969,
`998-1002 (N.D.Cal.2006) (preliminary injunction in copyright
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`case). Further, it is established that every order granting an
`injunction shall set forth the reasons for its issuance; shall be
`specific in its terms; shall describe in reasonable detail, and
`not by reference to the complaint or other document, the act or
`acts sought to be restrained; and is binding only upon the
`parties to the action, their officers, agents, servants,
`employees, and attorneys, and upon those persons in active
`concert or participation with them who receive actual notice of
`the order by personal service or otherwise. Fed. R. Civ. P.
`65(d). Even without objections by a party, a court has an
`independent duty to assure that an injunction is specific in its
`terms and describes in reasonable detail the acts sought to be
`restrained. See, EFS Marketing, Inc. v Russ Berrie & Co., 76 F.3d
`487, 493-94 (2 Cir. 1996); 4 Nimmer on Copyright, § 14.06(C)
`nd
`(2006).
`Here, the injunction purports to forbid infringing
`Plaintiffs’ rights under “federal or state law” in the
`copyrighted recordings. However, the sole subject of the
`complaint and this action is infringement of rights created by
`the Copyright Act, not any other federal or state law.
`Further, the injunction sought would enjoin infringement not
`only of copyrighted sound recordings, but also of any sound
`recording owned or controlled by Plaintiffs; thus, it would
`include recordings that are not copyrighted. This exceeds the
`scope of the infringement, which was limited to copyrighted
`works.
`Likewise, the proposed injunction would cover infringement
`not only of recordings copyrighted by Plaintiffs, but also those
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 14 of 16
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`owned or controlled by any parent, subsidiary, or affiliate
`record label of Plaintiffs. Such a provision does not give
`reasonable notice of what conduct would be included within the
`scope of the injunction because a reasonable person would not
`know what entities or operations constitute parents,
`subsidiaries, or affiliate record labels of Plaintiffs. This
`aspect of the injunction would be unclear and also would exceed
`the scope of the infringement.
`Accordingly, these aspects should be eliminated from the
`injunctive relief sought.
`
`VII. Costs
`Plaintiffs seek $420.00 in costs, consisting of $350.00 in
`filing fees and $70.00 for service of process. (Decl. of Zavala ¶
`18.)
`
`Title 17 U.S.C. § 505 states:
`In any civil action under this title, the court
`in its discretion may allow the recovery of full
`costs by or against any party other than the
`United States or an officer thereof. Except as
`otherwise provided by this title, the court may
`also award a reasonable attorney's fee to the
`prevailing party as part of the costs.
`Plaintiffs are thus entitled to costs of $420.00.
`VII. Recommendation
`Accordingly, it IS RECOMMENDED that
`1) Plaintiffs’ motion for default judgment against Defendant
`Tina Espinoza BE GRANTED; and
`2) The Clerk BE DIRECTED to enter judgment in favor of
`Plaintiffs and against Defendant Tina Espinoza in the amount of
`$7,500.00 of statutory damages, and $420.00 in costs; and
`3) The Clerk BE DIRECTED to enter judgment in favor of
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`Case 1:08-cv-00111-LJO-SMS Document 25 Filed 08/14/08 Page 15 of 16
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`Plaintiffs and against Defendant Tina Espinoza enjoining
`Defendant from directly or indirectly infringing Plaintiffs’
`rights in any copyrighted sound recording, whether now in
`existence or later created, which is owned or controlled by
`Plaintiffs (“Plaintiffs’ recordings”), including without
`limitation by using the Internet or any online media distribution
`system to reproduce (i.e., download) any of Plaintiffs’
`recordings, to distribute (i.e., upload) any of Plaintiffs’
`recordings, or to make any of Plaintiffs’ recordings available
`for distribution to the public, except pursuant to a lawful
`license or with the express authority of Plaintiffs; Defendant
`also shall destroy all copies of Plaintiffs’ recordings that
`Defendant has downloaded onto any computer hard drive or server
`without Plaintiffs’ authorization and shall destroy all copies of
`those downloaded recordings transferred onto any physical medium
`or device in Defendant’s possession, custody, or control.
`This report and recommendation is submitted to the United
`States District Court Judge assigned to the case, pursuant to the
`provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule 72-304 of the
`Local Rules of Practice for the United States District Court,
`Eastern District of California. Within thirty (30) days after
`being served with a copy, any party may file written objections
`with the Court and serve a copy on all parties. Such a document
`should be captioned “Objections to Magistrate Judge’s Findings
`and Recommendations.” Replies to the objections shall be served
`and filed within ten (10) court days (plus three days if served
`by mail) after service of the objections. The Court will then
`review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636
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`(b)(1)(C). The parties are advised that failure to file
`objections within the specified time may waive the right to
`appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
`1153 (9th Cir. 1991).
`IT IS SO ORDERED.
`Dated: August 11, 2008
`icido3
`
` /s/ Sandra M. Snyder
`UNITED STATES MAGISTRATE JUDGE
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