Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 1 of 23
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`UNITED STATES DISTRICT COURT
`WESTERN DISTRICT OF WASHINGTON
`AT SEATTLE
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`CHEDDAR CREATIONS, INC.,
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`CASE NO. 2:20-cv-01768-LK
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`v.
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`PAWICO,
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`
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`Plaintiff,
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`Defendant.
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`ORDER GRANTING IN PART
`AND DENYING IN PART
`MOTION FOR DEFAULT
`JUDGMENT
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`This matter comes before the Court on Plaintiff Cheddar Creations, Inc.’s1 Renewed Motion
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`for Default Judgment and Permanent Injunction Against Defendant Pawico. Dkt. No. 29. Having
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`reviewed the motion, Plaintiff’s supporting materials, and the remainder of the record, the Court
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`grants in part and denies in part Plaintiff’s motion and enters default judgment against Pawico as
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`set forth below.
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`1 Word Ape, LLC, d/b/a/ ChomChom Roller, was the named plaintiff at the outset of this litigation. See Dkt. No. 1.
`On September 2, 2022, the Court granted Word Ape’s joint motion with Cheddar Creations, Inc. to substitute Cheddar
`Creations as the named plaintiff, and directed Cheddar Creations to file an amended complaint. See Dkt. Nos. 20–22.
`The motion to substitute followed the Court’s request for supplemental briefing as to Word Ape’s standing in this case
`in light of Cheddar Creations’ December 2021 acquisition of the rights to enforce the patent and copyright at issue.
`Dkt. No. 19 at 2–5; see Dkt. No. 22-4.
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`ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT - 1
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 2 of 23
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`I.
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`BACKGROUND
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`Plaintiff makes and sells a popular pet hair removal device called the CHOMCHOM
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`Roller. The CHOMCHOM Roller embodies one or more claims of U.S. Patent No. 8,117,706 (“the
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`‘706 patent”), to which Plaintiff is the exclusive licensee. Dkt. No. 22 at 2; see Dkt. Nos. 22-1, 22-
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`3, 22-4, 29-4. One of the means that Plaintiff has used to promote the CHOMCHOM Roller is a
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`video showing the Roller in action (the “Roller Video”). Dkt. No. 22 at 3. Plaintiff owns a
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`registered copyright (Registration No. PA 2-245-379) in the Roller Video. Id.; see Dkt. No. 29-3
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`at 2; Dkt Nos. 22-4, 29-4.
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`In December 2020, Plaintiff filed a complaint alleging that Pawico infringed its intellectual
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`property rights related to the CHOMCHOM Roller. Dkt. No. 1. After Plaintiff unsuccessfully
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`attempted to serve Pawico personally, including at the address listed on its website, this Court
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`granted Plaintiff’s request for alternative service through email and through electronic message on
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`Pawico’s Facebook store page. See Dkt. No. 10 at 2–3, 7; Dkt. No. 12 at 1. Despite valid service
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`of process in accordance with the Court’s Order, Pawico failed to appear or otherwise defend itself
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`in this case. See Dkt. No. 11; Dkt. No. 13 at 2.
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`On March 17, 2021, the Clerk of Court entered default against Pawico, Dkt. No. 14, and
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`on June 25, 2021, Plaintiff moved for default judgment, Dkt. No. 15. While Plaintiff’s motion was
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`pending, Word Ape informed the court in a separate patent infringement case it filed in the United
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`States District Court for the District of New Jersey that it had “assigned all of its rights (including
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`the right to enforce and recover damages) in the ‘706 Patent to Cheddar Creations in an Asset
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`Purchase Agreement between these two parties, dated December 16, 2021.” Word Ape, LLC v.
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`Ontel Prods. Corp., No. C21-14431-MCA-MAH, Dkt. No. 41 at 1 (D.N.J. June 10, 2022). This
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`Court then ordered Word Ape to file supplemental briefing addressing its standing in this case,
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`including its rights in the ‘706 patent and Roller Video copyright. Dkt. No. 19. In response,
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 3 of 23
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`Cheddar Creations, Inc. substituted in as the named plaintiff and filed an amended complaint, and
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`the Court then struck the pending motion for default judgment without prejudice to renew. See
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`supra note 1; Dkt Nos. 20–22, 24; see also Fed. R. Civ. P. 25(c).2
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`Plaintiff later obtained another entry of default based on Pawico’s continued failure to
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`appear or otherwise defend in this action, Dkt. Nos. 25, 26, and then renewed its motion for default
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`judgment, Dkt. No. 29. In its motion, Plaintiff seeks $1 in nominal damages on its patent
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`infringement claim, $30,000 in statutory damages on its copyright infringement claim, a permanent
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`injunction enjoining further infringement of Plaintiff’s intellectual property, and an award of
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`$16,473.50 in attorney’s fees and costs. Id. at 12–19.
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`II.
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`DISCUSSION
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`A.
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`Jurisdiction
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`Before entering default judgment, district courts must evaluate subject matter and personal
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`jurisdiction. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (“When entry of judgment is sought
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`against a party who has failed to plead or otherwise defend, a district court has an affirmative duty
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`to look into its jurisdiction over both the subject matter and the parties.”). In this case, the Court
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`has subject matter jurisdiction over Plaintiff’s patent and copyright claims pursuant to 28 U.S.C.
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`§§ 1331 and 1338(a). See Dkt. No. 22 at 2.
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`With respect to personal jurisdiction, Plaintiff alleges that “Pawico is an internet seller of
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`unknown type of organization purportedly having a mailing address of 87 4th Rd., San Lorenzo,
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`CA 94580,” and that it has transacted business and committed infringing and tortious acts in
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`2 The Court notes that pursuant to Federal Rule of Civil Procedure 25, Plaintiff would ordinarily have been required
`to serve its motion to substitute on Pawico pursuant to Federal Rule of Civil Procedure 5. See Fed. R. Civ. P. 25(a)(3),
`(c). However, in light of Pawico’s default for failing to appear, service was not required. Fed. R. Civ. P. 5(a)(2).
`Likewise, because Plaintiff’s amended complaint does not assert any new claims for relief, compare Dkt. No. 22, with
`Dkt. No. 1, Plaintiff was not required to serve it on Pawico under Rule 5(a)(2). See, e.g., In re Chinese Manufactured
`Drywall Prod. Liab. Litig., 742 F.3d 576, 593 (5th Cir. 2014); Emp. Painters’ Tr. v. Cascade Coatings, No. C12-
`0101-JLR, 2013 WL 12158588, at *4 (W.D. Wash. Sept. 27, 2013).
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 4 of 23
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`Washington. Dkt. No. 22 at 1–2. Pawico thus appears to be a non-resident defendant. “The general
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`rule is that personal jurisdiction over a defendant is proper if it is permitted by a long-arm statute
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`and if the exercise of that jurisdiction does not violate federal due process.” Pebble Beach Co. v.
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`Caddy, 453 F.3d 1151, 1154 (9th Cir. 2006). When, as here, there is no applicable federal statute
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`governing personal jurisdiction over a non-resident defendant, a district court applies the law of
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`the state in which it sits. Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir. 1998);
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`see also Ranza v. Nike, Inc., 793 F.3d 1059, 1068 (9th Cir. 2015); Fed. R. Civ. P. 4(k)(1)(A).
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`Washington’s long-arm statute is coextensive with federal due process requirements. See Wash.
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`Rev. Code § 4.28.185; Downing v. Losvar, 507 P.3d 894, 905–06 (Wash. Ct. App. 2022) (“[T]he
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`Washington Supreme Court has consistently ruled that the state long-arm statute permits
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`jurisdiction over . . . foreign corporations to the extent permitted by the due process clause of the
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`United States Constitution.”). Thus, the Court must consider “whether the requirements of due
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`process are satisfied by [its] exercise of personal jurisdiction over” Pawico. Panavision, 141 F.3d
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`at 1320; accord Picot v. Weston, 780 F.3d 1206, 1211 (9th Cir. 2015).
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`Because Plaintiff does not contend that general jurisdiction exists over Pawico in
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`Washington, see Dkt. No. 22 at 1–2, the Court uses the Ninth Circuit’s three-prong test for
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`determining whether Pawico is subject to specific personal jurisdiction:
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`(1) The non-resident defendant must purposefully direct his activities or
`consummate some transaction with the forum or resident thereof; or perform some
`act by which he purposefully avails himself of the privilege of conducting activities
`in the forum, thereby invoking the benefits and protections of its laws;
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`(2) the claim must be one which arises out of or relates to the defendant’s forum-
`related activities; and
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`(3) the exercise of jurisdiction must comport with fair play and substantial justice,
`i.e. it must be reasonable.
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 5 of 23
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`Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 802 (9th Cir. 2004) (quoting Lake v.
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`Lake, 817 F.2d 1416, 1421 (9th Cir. 1987)).
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`Based on the above factors, the Court concludes that its exercise of specific personal
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`jurisdiction over Pawico is proper. First, Plaintiff alleges that Pawico “has transacted business
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`within the state of Washington” by “making, using, selling and/or offering to sell, or allowing
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`others to make, use, sell and/or offer for sale” the Pawico Pet Hair Remover in this judicial district.
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`Dkt. No. 22 at 2–3. Pawico allegedly accepted orders of the infringing pet hair remover via its
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`website, https://pawico.com, and fulfilled them using DHL Express and the U.S. Postal Service to
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`deliver the product to customers. Id. at 1–2; see Dkt. No. 8 at 2 (“Plaintiff has made a test buy of
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`the accused product and can confirm that defendant receives and responds to orders placed through
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`its website.”). Second, Plaintiff’s claims arise from Pawico’s conduct directed toward Washington.
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`See Dkt. No. 22 at 2–3. And last, there is no evidence in the record indicating that the Court’s
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`exercise of jurisdiction would be unreasonable. Although Pawico did not respond to the complaint,
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`it was served with the summons and complaint via email and Facebook per the Court’s order
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`authorizing service in that manner. See Dkt. Nos. 11–13.
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`B.
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`Standing
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`In light of its prior concerns, see Dkt. No. 19, the Court will address Plaintiff’s standing in
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`this case. See, e.g., Her Majesty Queen in Right of Can. as Represented by Minister of Agric. &
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`Agri-Food v. Van Well Nursery, Inc., No. 2:20-CV-00181-SAB, 2021 WL 131261, at *3 (E.D.
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`Wash. Jan. 13, 2021) (“Like all other cases in federal court, the plaintiff must show that it suffered
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`an injury in fact that is fairly traceable to the challenged conduct of the defendant, and that its
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`injury is likely to be redressed by a favorable judicial decision.”).
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`Under the Copyright Act, only the “legal or beneficial owner of an exclusive right under a
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`copyright” has standing to sue for infringement of that right. See 17 U.S.C. § 501(b); Silvers v.
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 6 of 23
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`Sony Pictures Entertainment, Inc., 402 F.3d 881, 890 (9th Cir. 2005) (en banc) (holding that, under
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`Section 501, only a party with an ownership interest has standing to sue). Section 106 of the
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`Copyright Act lists the “exclusive rights” that can be held. They include the right to reproduce the
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`copyrighted work, to prepare derivative works based on the work, and to distribute copies of the
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`work by selling, renting, leasing, or lending. See 17 U.S.C. § 106. The assignment of the bare right
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`to sue for infringement, without the transfer of an associated exclusive right, is impermissible
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`under the Copyright Act and does not confer standing to sue. Silvers, 402 F.3d at 890.
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`Word Ape was the owner of the copyright in the Roller Video until December 16, 2021,
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`when it assigned all “right, title, and interest of every kind and nature” in the Roller Video
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`copyright to Cheddar Creations. Dkt. No. 22-4 at 3, 50. Word Ape also assigned to Cheddar
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`Creations “all claims, . . . causes of action, rights of recovery and rights of set-off of any kind
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`related to the” Roller Video copyright. Id. at 4. This case is listed as an “Action” (which includes
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`“claims” and “causes of action”) in the assignment agreement. Id. at 19, 52. This agreement was
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`recorded with the Copyright Office on September 19, 2022. Dkt. No. 29-4. There is no indication
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`that Word Ape retained any right to, or other interest in, the Roller Video copyright or any
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`associated legal actions following the December 2021 assignment. The Court thus finds that
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`Plaintiff has standing to sue for copyright infringement as the legal or beneficial owner of an
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`exclusive right to the Roller Video copyright. See, e.g., Minden Pictures, Inc. v. John Wiley &
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`Sons, Inc., 795 F.3d 997, 1002–03 (9th Cir. 2015). Because Plaintiff has failed to state a claim for
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`patent infringement, see Section I.A.2.a below, the Court does not separately address Plaintiff’s
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`standing with respect to that claim.
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`C.
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`Legal Standard
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`Upon an entry of default under Federal Rule of Civil Procedure 55(a), courts have
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`discretion to enter default judgment against the party that has failed to appear or otherwise defend
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 7 of 23
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`in an action. See Fed. R. Civ. P. 55(b)(2); Hawaii Carpenters’ Tr. Funds v. Stone, 794 F.2d 508,
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`511–12 (9th Cir. 1986). Default judgments are ordinarily disfavored, and if reasonably possible,
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`cases should be resolved on their merits. Eitel v. McCool, 782 F.2d 1470, 1472 (9th Cir. 1986).
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`When deciding whether to grant a motion for default judgment, courts generally consider the
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`following factors, often referred to as the Eitel factors:
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`(1) the possibility of prejudice to the plaintiff, (2) the merits of the plaintiff’s
`substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at
`stake in the action[,] (5) the possibility of a dispute concerning material facts[,]
`(6) whether the default was due to excusable neglect, and (7) the strong policy
`underlying the Federal Rules of Civil Procedure favoring decisions on the merits.
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`Id. at 1471–72; see Waters v. Mitchell, 600 F. Supp. 3d 1177, 1182 (W.D. Wash. 2022). In this
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`posture, courts must accept as true the factual allegations pleaded in the complaint, except those
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`relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987).
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`If the Court determines that an entry of judgment is warranted under the Eitel factors, the
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`Court must next determine the character and amount of relief to be awarded. Waters, 600 F. Supp.
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`3d at 1182. Plaintiffs seeking an award of damages must provide the court with evidence to
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`establish the amount. TeleVideo Sys., 826 F.2d at 917; see also Flores v. Flores, 590 F. Supp. 3d
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`1373, 1379 (W.D. Wash. 2022). In addition, “[a] default judgment must not differ in kind from, or
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`exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P. 54(c).
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`D.
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`Plaintiff Is Entitled to Default Judgment on its Copyright Claim
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`The Court has considered the Eitel factors and finds that an entry of default judgment on
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`Plaintiff’s copyright claim, but not its patent claim, is appropriate in this case.
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`1.
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`The Possibility of Prejudice to Plaintiff
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`The first Eitel factor considers the possibility of prejudice to the plaintiff, which on a
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`motion for default judgment, “exists where the plaintiff has no recourse for recovery other than
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`default judgment.” See Curtis v. Illumination Arts, Inc., 33 F. Supp. 3d 1200, 1211 (W.D. Wash.
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 8 of 23
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`2014) (cleaned up). Plaintiff initiated this action in December 2020 and, to date, Pawico has failed
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`to plead or otherwise defend itself. Plaintiff thus faces a possibility of prejudice because it is left
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`without a legal remedy absent entry of default judgment. See Eve Nevada, LLC v. Derbyshire, No.
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`21-0251-LK, 2022 WL 279030, at *3 (W.D. Wash. Jan. 31, 2022).
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`2.
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`The Merits of Plaintiff’s Substantive Claims and the Sufficiency of the Complaint
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`“The second and third Eitel factors—the substantive merits of the claim and the sufficiency
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`of the complaint—are often analyzed together.” Curtis, 33 F. Supp. 3d at 1211. In evaluating these
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`factors, the Court considers whether the allegations in the amended complaint are sufficient to
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`state a claim on which Plaintiff may recover. See Danning v. Lavine, 572 F.2d 1386, 1388 (9th
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`Cir. 1978). Because Plaintiff has pleaded a meritorious copyright infringement claim but has not
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`done so with respect to its patent claim, the Court finds that these two factors weigh in favor of
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`default judgment on only the copyright claim. See, e.g., Flores, 590 F. Supp. 3d at 1379–80.
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`a.
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`Patent infringement
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`Federal Rule of Civil Procedure 8(a)(2) requires that a pleading stating a claim for relief
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`contain “a short and plain statement of the claim showing that the pleader is entitled to relief[.]”
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`In order to comply with Rule 8(a)(2), a complaint must contain “enough facts to state a claim to
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`relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “A claim
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`has facial plausibility when the plaintiff pleads factual content that allows the court to draw the
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`reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556
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`U.S. 662, 678 (2009). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation
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`of the elements of a cause of action will not do.’” Id. (quoting Twombly, 550 U.S. at 555).
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`“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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`do not suffice.” Id.
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`“Accordingly, a plaintiff cannot assert a plausible claim for infringement under the
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`Iqbal/Twombly standard by reciting the claim elements and merely concluding that the accused
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`product has those elements.” Bot M8 LLC v. Sony Corp. of Am., 4 F.4th 1342, 1353 (Fed. Cir.
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`2021). “There must be some factual allegations that, when taken as true, articulate why it is
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`plausible that the accused product infringes the patent claim.” Id. Nevertheless, “[a] plaintiff is not
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`required to plead infringement on an element-by-element basis.” Id. at 1352. Rather, “[t]he level
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`of detail required in any given case will vary depending upon a number of factors, including the
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`complexity of the technology, the materiality of any given element to practicing the asserted
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`claim(s), and the nature of the allegedly infringing device.” Id. at 1353.
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`To support its claim for patent infringement, Plaintiff only provides the following
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`allegations in the complaint: “Plaintiff makes and sells devices that embody one or more claims of
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`the ‘706 patent under the name CHOMCHOM ROLLER®,” and Pawico:
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`has infringed and continues to infringe one or more claims of the ‘706 patent by
`making, using, selling and/or offering to sell, or allowing others to make, use, sell
`and/or offer for sale, in the United States and in this judicial district, products, such
`as the “Pawico Roller Pet Hair Remover” that is covered by, embody, or practice
`one or more of the claims of the ‘706 patent. Defendant is liable for infringement
`of the ‘706 patent pursuant to 35 U.S.C. § 271.
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`Dkt. No. 22 at 2–3. Plaintiff’s threadbare and conclusory allegations “do not suffice.” Bot M8, 4
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`F.4th at 1352 (quoting Iqbal, 556 U.S. at 678). The complaint contains no factual allegations
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`articulating why it is plausible that the accused product infringes the claims at issue. As such, the
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`complaint fails to properly state a claim for patent infringement. See id. at 1353 (explaining that
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`“[t]here must be some factual allegations that, when taken as true, articulate why it is plausible
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`that the accused product infringes the patent claim”); Golden v. Qualcomm Inc., No. 2023-1818,
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`2023 WL 6561044, at *1 (Fed. Cir. Oct. 10, 2023) (“[A]lthough a plaintiff need not prove its case
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`at the pleading stage and is not required to plead infringement on an element-by-element basis, it
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`cannot assert a plausible claim for infringement under the Iqbal/Twombly standard by reciting the
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`claim elements and merely concluding that the accused product has those elements.” (cleaned up)),
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`cert. denied, No. 23-740, 2024 WL 1143679 (U.S. Mar. 18, 2024).
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`Although Plaintiff adds significant detail regarding how Pawico infringed its patent in an
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`exhibit to its motion for default judgment, Dkt. No. 29 at 2–3; Dkt. No. 29-2, Plaintiff may not
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`amend its complaint through such a motion or exhibit. See Charette v. Twin Air Calypso Ltd., Inc.,
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`No. 12-61461-CIV, 2012 WL 12887014, at *1 (S.D. Fla. Nov. 7, 2012).
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`Because Plaintiff has failed to state a claim for patent infringement, it is not entitled to a
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`default judgment against Pawico on Count I of its complaint. See DIRECTV, Inc. v. Hoa Huynh,
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`503 F.3d 847, 854–55 (9th Cir. 2007) (affirming the denial of a motion for default judgment where
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`the plaintiff failed to state a claim); see also, e.g., Warming Trends, LLC v. Flame DesignZ, LLC,
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`No. 22-CV-00252-PAB-STV, 2023 WL 196288, at *7 (D. Colo. Jan. 17, 2023) (denying motion
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`for default judgment for failure to state a claim where the complaint merely recited the elements
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`of claim 1 of the patent and “contain[ed] no other factual allegations describing the Accused
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`Instrumentalities or how those products infringe on the patent claim”); CSTECHUS, Inc. v.
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`NorthernZone, LLC, No. 21-CV-00122-H-AHG, 2021 WL 4974825, at *2 (S.D. Cal. Oct. 25,
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`2021) (denying motion for default judgment based on similar deficiencies).
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`b.
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`Copyright infringement
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`“To establish direct copyright infringement, the [plaintiff] must (1) show ownership of the
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`allegedly infringed material and (2) demonstrate that the alleged infringers violate at least one
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`exclusive right granted to copyright holders under 17 U.S.C. § 106.” Disney Enters., Inc. v.
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`VidAngel, Inc., 869 F.3d 848, 856 (9th Cir. 2017) (cleaned up); see also 17 U.S.C. § 501(a). The
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`allegations in Plaintiff’s amended complaint, when taken to be true, establish that Plaintiff owns a
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`valid registered copyright in the Roller Video, and that Pawico willfully infringed Plaintiff’s
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 11 of 23
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`copyright by producing a derivative work that was clearly based on the Roller Video, in violation
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`of 17 U.S.C § 106(2). See Dkt. No. 22 at 3–6; see also Dkt. No. 22-2; Dkt. No. 22-4 at 50.
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`Therefore, Plaintiff’s well-pleaded allegations state a meritorious claim for copyright
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`infringement, and this factor weighs in favor of default judgment on Plaintiff’s copyright claim.
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`See, e.g., Amazon Content Servs. LLC v. Kiss Libr., No. C20-1048-MJP, 2021 WL 5998412, at *3
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`(W.D. Wash. Dec. 17, 2021).
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`3.
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`The Sum of Money at Stake in the Action
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`Under the fourth Eitel factor, “the court must consider the amount of money at stake in
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`relation to the seriousness of Defendant’s conduct.” PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp.
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`2d 1172, 1176 (C.D. Cal. 2002). This requires the Court to assess whether the recovery sought is
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`proportional to the harm caused by Defendant’s conduct. See Getty Images (US), Inc. v. Virtual
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`Clinics, No. C13-0626-JLR, 2014 WL 358412, at *4 (W.D. Wash. Jan. 31, 2014). Here, Plaintiff
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`seeks $1 in nominal damages on its patent infringement claim and $30,000 in damages on its
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`copyright infringement claim, as well as $16,473.50 in attorney’s fees and costs, for a total of
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`$46,474.50. See Dkt. No. 29 at 12–13, 18–19.
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`Since Plaintiff has failed to state a claim for patent infringement, it is not appropriate to
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`award damages or fees related to that claim. In contrast, Plaintiff has adequately alleged that
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`Pawico willfully infringed its copyright, and the $30,000 it seeks is the maximum statutory
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`recovery for non-willful copyright infringement under 17 U.S.C. § 504(c)(1), and well below the
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`$150,000 statutory cap for willful infringement under Section 504(c)(2). See, e.g., Universal
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`Dyeing & Printing, Inc. v. DIF Grp., Inc., No. 2:17-CV-00825-CAS(ASx), 2018 WL 1603128, at
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`*4 (C.D. Cal. Mar. 26, 2018). For the reasons laid out elsewhere in this Order, the Court finds that
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`Plaintiff is entitled to recover this sum, as well as attorney’s fees in the amount of $12,498. The
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`total amount is substantial, but these amounts are proportional to and reflective of the seriousness
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 12 of 23
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`of Pawico’s alleged copyright infringement. This factor therefore weighs in favor of default
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`judgment on Plaintiff’s copyright claim.
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`4.
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`The Possibility of a Dispute Concerning Material Facts
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`As for the fifth factor, no genuine issue of material fact exists with respect to Plaintiff’s
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`copyright infringement claim. Once default is entered, well-pleaded factual allegations in the
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`operative complaint are taken as true except for the allegations relating to damages. TeleVideo
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`Sys., Inc., 826 F.2d at 917–18.
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`5.
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`Whether the Default Was Due to Excusable Neglect
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`Turning to the sixth factor, the record contains no indication that Pawico’s default was due
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`to excusable neglect. Pawico has been served and given sufficient notice of this action. See Dkt.
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`No. 11 at 1–2 (affidavit of service). Although Plaintiff has not served Pawico with its motion or
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`amended pleading, it was not required to do so since Pawico has not appeared in this action. Fed.
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`R. Civ. P. 5(a)(2); LCR 55(b)(4); see also supra note 2. Because there is no evidence of excusable
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`neglect, this Eitel factor favors the entry of a default judgment on Plaintiff’s copyright claim.
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`6.
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`The Strong Policy Underlying the Federal Rules of Civil Procedure Favoring
`Decisions on the Merits
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`Finally, the Court is aware that “[c]ases should be decided upon their merits whenever
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`reasonably possible.” Eitel, 782 F.2d at 1472. However, the existence of Rule 55(b) “indicates that
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`this preference, standing alone, is not dispositive,” because Rule 55 allows a court to issue a default
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`judgment if the defendant fails to appear and defend. PepsiCo, Inc., 238 F. Supp. 2d at 1177
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`(cleaned up). Accordingly, although the Court is cognizant of the policy in favor of decisions on
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`the merits, that policy does not preclude the entry of default judgment where, as here, Pawico has
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`failed to appear or defend and the other Eitel factors weigh in favor of entering a default judgment
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`on Plaintiff’s copyright claim.
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`Case 2:20-cv-01768-LK Document 34 Filed 03/31/24 Page 13 of 23
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`In sum, the Court finds that the Eitel factors weigh in favor of entry of default judgment
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`on Plaintiff’s copyright claim.
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`E.
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`Plaintiff Is Entitled to the Relief It Seeks with Respect to its Copyright Infringement
`Claim
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`Having found that entry of default judgment is warranted, the Court turns to the relief
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`Plaintiff seeks. Plaintiff seeks three categories of relief from Pawico: (1) damages; (2) permanent
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`injunctive relief; and (3) attorney’s fees and costs. The court discusses each in turn.
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`1.
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`Damages
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`As noted above, Plaintiff seeks $1 in nominal damages from Pawico for its patent
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`infringement claim and $30,000 in statutory damages for its copyright infringement claim. Dkt.
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`No. 29 at 12–13. Because Plaintiff has failed to state a claim for patent infringement, the Court
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`does not award damages related to this claim.
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`With respect to Plaintiff’s request for $30,000 in statutory damages for its copyright
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`infringement claim against Pawico, a party may elect to receive statutory, rather than actual,
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`damages for infringement of registered copyrights, “regardless of the adequacy of the evidence
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`offered as to [its] actual damages and the amount of the defendant’s profits.” Columbia Pictures
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`Television, Inc. v. Krypton Broad. Of Birmingham, Inc., 259 F.3d 1186, 1194 (9th Cir. 2001)
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`(cleaned up); see 17 U.S.C. § 504(c)(1). The Copyright Act sets a $750 minimum and a $30,000
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`maximum award of statutory damages for copyright infringement, and the maximum award can
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`be increased to as much as $150,000 where the infringement was willful. 17 U.S.C. § 504(c)(1)–
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`(2). “If statutory damages are elected, the court has wide discretion in determining the amount of
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`statutory damages to be awarded, constrained only by the specified maxima and minima” in the
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`statute. Peer Int’l Corp. v. Pausa Recs., Inc., 909 F.2d 1332, 1336 (9th Cir. 1990) (cleaned up).
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`The Court also considers “the amount of money requested in relation to the seriousness of the
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`defendant’s conduct, whether large sums of money are involved, and whether ‘the recovery sought
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`is proportional to the harm caused by defendant’s conduct.’” UN4 Prods., Inc. v. Primozich, 372
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`F. Supp. 3d 1129, 1135 (W.D. Wash. 2019) (quoting Curtis, 33 F.Supp.3d at 1212).
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`Plaintiff originally requested actual damages on its copyright infringement claim, see Dkt.
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`No. 22 at 8, but has been unable to quantify the damages caused by Pawico. Nevertheless, Plaintiff
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`argues that an award of $30,000 in statutory damages reflects Pawico’s “infringing use of
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`Plaintiff’s work for anticompetitive purposes; [] would help compensate Plaintiff for the harm it
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`suffered; and [] would deter [Pawico] from engaging in such conduct again.” Dkt. No. 29 at 13.
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`The Court agrees. “Congress has authorized statutory damages in significant amounts to
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`compensate for difficult-to-prove downstream losses and to deter future infringement.” UN4
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`Prods., 372 F. Supp. 3d at 1134–35 (citing Los Angeles News Serv. v. Reuters Int’l, Ltd., 149 F.3d
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`987, 996 (9th Cir. 1998)). In this case, the Court finds that Plaintiff has alleged a willful and rather
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`blatant instance of copyright infringement justifying an award of $30,000 in statutory damages.
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`See Dkt. No. 22 at 3–6. This award is reasonable given the severity of the infringement and to help
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`deter future infringement. See, e.g., Nat. Hair Growth Ctrs. of Ariz., LLC v. Edmund, No. 3:19-
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`CV-00026-H-BGS, 2019 WL 2249976, at *6 (S.D. Cal. May 23, 2019) (awarding $30,000 in
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`statutory damages on default judgment); Microsoft Corp. v. Lopez, No. C08-1743-JCC, 2009 WL
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`959219, at *4 (W.D. Wash. Apr. 7, 2009) (finding award of $30,000 reasonable and appropriate,
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`“especially in light of the evidence that Defendant’s infringements may have been willful, which,
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`if proven, would entitle [Plaintiff] to seek up to $150,000 in statutory damages.”).
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`2.
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`Permanent Injunction
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`Next, Plaintiff requests a permanent injunction enjoining Pawico, “its officers, agents,
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`servants, employees, and all those persons in active concert or participa