1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 BARRY ROSEN, 8 Case No. 20-cv-07043-EJD Plaintiff, 9 ORDER GRANTING MOTION FOR v. DEFAULT JUDGMENT 10 MOVIE TIMES, INC., Re: Dkt. No. 17 11 Defendant. 12
13 Plaintiff Barry Rosen brings this action against Defendant Movie Times, Inc., alleging 14 copyright infringement in violation of the Copyright Act, 17 U.S.C. § 501. Compl., Dkt. No. 1. 15 Before the Court is Rosen’s Motion for Default Judgment (“Mot.”), through which he seeks 16 statutory damages, an award of costs and reasonable attorneys’ fees, and injunctive relief. Dkt. 17 No. 17. Defendant has failed to plead, oppose, or otherwise defend. Having considered Rosen’s 18 papers, the Court GRANTS the Motion for Default Judgment. 19 BACKGROUND 20 Rosen is a professional photographer of almost forty years. Compl. at 2. His photographs 21 have been featured in advertising, editorials, and various print and digital media, worldwide. Id. 22 Part of his work includes photographing celebrities. Id. 23 In 2005, Rosen photographed actress Jeri Ryan, and registered the photograph for 24 copyright protection on February 28 of that year. Id. at 3; Compl., Ex. 1, Dkt. No. 1-1. That same 25 day, the United States Copyright Office’s Register of Copyrights assigned Rosen’s work 26 registration number VAu 660-267, and Rosen still holds this copyright today. Id. Rosen alleges 27 that he “first discovered the infringement on July 18, 2018.” Mem. of Points and Authorities in 1 Supp. of Pl.’s Mot. for Default J. (“Mem. in Supp.”), Dkt. No. 17-1 at 2. He claims Movie Times, 2 Inc. “prominently featured Rosen’s Work on [Movie Times, Inc.’s] Website without permission”, 3 in “willful” violation of his copyright, “in order to advertise, market[,] and promote its business 4 activities.” Compl. at 2, 5. 5 LEGAL STANDARD 6 Default judgment may be granted when a party fails to plead or otherwise defend against 7 an action for affirmative relief. Fed. R. Civ. P. 55(a). The district court has discretion to 8 enter default judgment. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). When 9 determining whether to enter default judgment, the court considers:
10 (1) the possibility of prejudice to the plaintiff, (2) the merits of 11 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 12 concerning material facts, (6) whether the underlying default was due to excusable neglect, and (7) the strong policy underlying the Federal 13 Rules of Civil Procedure favoring decisions on the merits. 14 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986) (citing 10 Moore’s Federal Practice § 15 55). And “[t]he general rule of law is that[,] upon default[,] the factual allegations of the 16 complaint, except those relating to the amount of damages, will be taken as true.” Geddes v. 17 United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (citing Pope v. United States, 323 U.S. 1, 12 18 (1944) and Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974)). “Upon entry of default judgment, 19 facts alleged to establish liability are binding upon the defaulting party, and those matters may not 20 be relitigated on appeal.” Danning v Lavine, 572 F2d 1386, 1388 (9th Cir 1978) (citations 21 omitted). 22 DISCUSSION 23 A. Jurisdiction and Venue 24 Before entering default judgment, a court must determine whether it has subject matter 25 jurisdiction over the action and personal jurisdiction over the defendant. See In re Tulli, 172 F.3d 26 707, 712 (9th Cir. 1999) (“When entry of judgment is sought against a party who has failed to 27 plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over 1 both the subject matter and the parties. . . . A judgment entered without personal jurisdiction over 2 the parties is void”) (citations omitted). “The party seeking to invoke the court’s jurisdiction bears 3 the burden of establishing that jurisdiction exists.” Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 4 1986) (citing Data Disc, Inc. v. Systems Technology Assocs., 557 F.2d 1280, 1285 (9th Cir. 5 1977)). 6 1. Subject Matter Jurisdiction 7 District courts have original jurisdiction to hear civil cases arising under the Constitution, 8 laws, or treaties of the United States. 28 U.S.C. § 1331. Plaintiff alleges Defendant committed 9 copyright infringement in violation of 17 U.S.C. § 501. Compl. at 2. Because Plaintiff’s claim 10 arises under federal copyright law, the Court has original federal question jurisdiction over the 11 action. 28 U.S.C. §§ 1331, 1338. 12 2. Personal Jurisdiction and Venue 13 The Court must also have a basis for the exercise of personal jurisdiction over the 14 defaulting defendant. See Tuli, 172 F.3d at 712. The traditional bases for establishing and 15 exercising personal jurisdiction over the defendant are domicile, physical presence, or consent. 16 J. McIntyre Mach., Ltd. v. Nicastro, 564 U.S. 873, 880 (2011). A corporation’s domicile is the 17 state in which the company’s principal place of business is located or the state(s) in which the 18 business is incorporated. Id.
19 [T]o the extent that a corporation exercises the privilege of conducting activities within a state, it enjoys the benefits and 20 protection of the laws of that state. The exercise of that privilege may give rise to obligations, and, so far as those obligations arise out of or 21 are connected with the activities within the state, a procedure which 22 requires the corporation to respond to a suit brought to enforce them can, in most instances, hardly be said to be undue. 23 24 Int’l Shoe Co. v. Washington, 326 U.S. 310, 319 (1945). Movie Times, Inc. is a California 25 Corporation, operating in the Northern District of California, with its principal (if not sole) place 26 of business in San Jose, California. Decl. of Jonah A. Grossbardt in Supp. of Application for 27 Default J. (“Grossbardt Decl.”), Dkt. No. 17-2 at 1-2; Compl. at 3; Int’l Shoe, 326 U.S. at 316-21; 1 Hertz Corp. v. Friend, 559 U.S. 77, 78 (2010) (personal jurisdiction exists where business has its 2 “principal place of business” or “nerve center”). Thus, the Court has personal jurisdiction over 3 Defendant. 4 Additionally, venue is proper within this District pursuant to 28 U.S.C. § 1391. 5 3. Notice 6 Personal jurisdiction also requires that the plaintiff provide notice, “reasonably calculated, 7 under all the circumstances, to apprise interested parties of the pendency of the action and afford 8 them an opportunity to present their objections.” Mullane v. Cent. Hanover Bank & Tr. Co., 339 9 U.S. 306, 314 (1950). “A federal court does not have jurisdiction over a defendant unless the 10 defendant has been served properly” under Federal Rule of Civil Procedure 4. Direct Mail 11 Specialists, Inc. v. Eclat Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). 12 Pursuant to Rule 4(h)(1) and 4(e)(1), “[u]nless federal law provides otherwise” or the 13 defendant has filed a waiver, a corporation can be served “following state law for serving a 14 summons in an action brought in courts of general jurisdiction in the state where the district court 15 is located or where service is made.” California allows substituted service “after several attempts 16 to personally serve the papers have failed”, as is the case here. Service of Court Papers, Cal. Cts., 17 https://www.courts.ca.gov/selfhelp-serving.htm#substituted. See Cal. Code Civ. Proc. § 415.20. 18 The proof of service (which Rosen filed with the Court) of the Summons and Complaint provides 19 a detailed physical description of the man at Movie Times, Inc.’s office who indicated he was in 20 charge, refused to provide his name as he accepted service for Movie Times, Inc., and was told the 21 nature of the document he accepted. Grossbardt Decl., Ex. 1, Dkt. No. 17-3. Additionally, a copy 22 of the summons and complaint was mailed to Movie Times, Inc. at that same address. Id. 23 Substituted service was successfully performed in compliance with all the necessary requirements, 24 and therefore, notice was proper. 25 B. Eitel Factors 26 1. Possibility of Prejudice to the Plaintiff 27 The first Eitel factor the Court considers is whether the plaintiff will suffer prejudice if 1 default judgment is not entered. A plaintiff is prejudiced if defendant’s failure to appear or defend 2 against the suit would leave plaintiff “without other recourse or recovery.” Khraibut v. Chahal, 3 2021 U.S. Dist. LEXIS 58454, at *13, 2021 WL 1164940, at *5 (N.D. Cal. Mar. 26, 2021) (citing 4 Penpower Tech. Ltd. v. S.P.C. Tech., 627 F. Supp. 2d 1083, 1089 (N.D. Cal. 2008)). See also U.A. 5 Local No. 467 Pension Tr. Fund v. Hydra Ventures Inc., 2013 U.S. Dist. LEXIS 34931, at *16, 6 2013 WL 1007311, at *6 (N.D. Cal. Mar. 13, 2013) (“[I]f the motion for default judgment were to 7 be denied, then Plaintiff[] would likely be without a remedy”). Rosen alleges Movie Times, Inc. 8 infringed upon his copyright. Given Movie Times, Inc. has not appeared or otherwise defended in 9 this action, Rosen will be without a remedy or recourse for recovery unless default judgment is 10 granted. See, e.g., Ridola v. Chao, 2018 U.S. Dist. LEXIS 84241, at *13-14, 2018 WL 2287668, 11 at *5 (N.D. Cal. May 18, 2018) (plaintiff would be prejudiced if default judgment was not entered 12 because plaintiff “would have no other means of recourse against Defendants for the damages 13 caused by their conduct”); see also Willamette Green Innovation Ctr., LLC v. Quartis Capital 14 Partners, 2014 U.S. Dist. LEXIS 148665, at *15-16, 2014 WL 5281039, at *6 (N.D. Cal. Jan. 21, 15 2014) (citations omitted) (“Denying a plaintiff a means of recourse is by itself sufficient to meet 16 the burden posed by this factor”). 17 Therefore, the first Eitel factor weighs in favor of the Court granting default judgment. 18 2. Merits of Plaintiff’s Substantive Claim and Sufficiency of the Complaint 19 The second and third Eitel factors for the Court to consider are the merits of plaintiff’s 20 substantive claim and the sufficiency of the complaint, respectively. Often courts consider the 21 second and third Eitel factors together, as they both require that the plaintiff’s allegations “state a 22 claim on which [plaintiff] may recover.” Kloepping v. Fireman’s Fund, 1996 U.S. Dist. LEXIS 23 1786, at *5, 1996 WL 75314, at *2 (N.D. Cal. Feb. 13, 1996) (quoting Danning v. Lavine, 572 24 F.2d 1386, 1388 (9th Cir. 1978)). “After an entry of default, well-pled allegations in the 25 complaint are deemed true except as to the amount of damages.” Adobe Sys. v. Marmoletos, 2009 26 U.S. Dist. LEXIS 37558, at *3-4, 2009 WL 1034143, at *2 (N.D. Cal. Apr. 16, 2009) (citing Fair 27 Housing of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002)). 1 Plaintiff brought this action seeking relief—for Movie Times, Inc.’s alleged copyright 2 infringement—under 17 U.S.C. § 501. Compl. at 2. To establish a prima facie case of copyright 3 infringement, a plaintiff must demonstrate (1) ownership of a valid copyright for the allegedly 4 infringed material and that (2) the alleged infringing defendant violated at least one of plaintiff’s 5 exclusive rights under 17 U.S.C. § 106. A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013- 6 14 (9th Cir. 2001). 7 A valid certificate of registration for a copyright, “made before or within five years after 8 first publication of the work[,] shall constitute prima facie evidence of the validity of the copyright 9 and of the facts stated in the certificate.” 17 U.S.C. § 410(c). With his complaint, Rosen 10 submitted to the Court a copy of his certificate of registration for the copyright, which was created 11 the same year as the photograph. Compl. at 3; Compl., Ex. 1. Thus, he has demonstrated 12 ownership of a valid copyright for the allegedly infringed material. 13 Under 17 U.S.C. § 106, the copyright owner has “the exclusive rights” to 14 reproduce, distribute, publicly display, and make derivatives of the copyrighted work (and to 15 authorize others to do so). Rosen alleges Movie Times, Inc. copied his original copyrighted 16 photograph without his permission or consent, and without obtaining a license from him. Compl. 17 at 4. He also claims the company distributed his photograph over the internet in advertising and 18 promoting its business and its products and services, also without his permission or consent, and 19 without obtaining a license from him. Id. at 3-4; Compl., Ex. 2, Dkt. No. 1-2; Compl., Ex. 3, Dkt. 20 No. 1-3. Taking Rosen’s allegations as true, the Court finds that Movie Times, Inc. violated 21 Rosen’s exclusive rights under 17 U.S.C. § 106. Therefore, Rosen has established a prima facie 22 case of copyright infringement, and the second Eitel factor weighs in favor of the Court entering 23 a default judgment. 24 Additionally, the allegations in the Complaint are well-pled. Rosen has sufficiently pled 25 the elements necessary to articulate a copyright infringement claim, and therefore the third Eitel 26 factor weighs in favor of the Court granting default judgment. 27 /// 1 3. Sum of Money at Stake in the Action 2 The fourth factor for the Court to consider is the sum of money at stake in the action. “[A] 3 large sum of money at stake would disfavor default judgment.” Bd. of Trs. v. RBS Wash. Blvd, 4 Ltd. Liab. Co., 2010 U.S. Dist. LEXIS 1693, at *9, 2010 WL 145097, at *3 (N.D. Cal. Jan. 8, 5 2010) (citing Eitel, 782 F.2d at 1472 (the court did not abuse its discretion in denying default 6 judgment in light of the material facts in dispute and plaintiff seeking three million dollars in 7 damages)). However, “where the sum of money at stake is tailored to the specific misconduct of 8 the defendant, default judgment may be appropriate.” Bd. of Trs. v. Core Concrete Constr., Inc., 9 2012 U.S. Dist. LEXIS 14139, at *10, 2012 WL 380304, at *4 (N.D. Cal. Jan. 17, 2012) (citing 10 Bd. of Trs. of the Sheet Metal Workers Health Care Plan v. Superhall Mechanical, Inc., 2011 U.S. 11 Dist. LEXIS 70532, at *7, 2011 WL 2600898, at *2 (the amounts sought were appropriate when 12 Plaintiff provided adequate evidence to support them and tailored the amounts to the conduct 13 alleged)). Ultimately, this factor balances “the amount of money at stake in relation to the 14 seriousness of defendant’s conduct.” United States v. Sundberg, 2011 U.S. Dist. LEXIS 93653, at 15 *13, 2011 WL 3667458, at *5 (N.D. Cal. Aug. 22, 2011) (citations omitted). 16 In the Complaint, Rosen alleged that Movie Times, Inc. used his photograph on the 17 company’s website, without his permission, “in order to advertise, market[,] and promote its 18 business activities.” Compl. at 2. As a result, Rosen seeks an award of willful statutory damages 19 in the amount of $150,000 or, in the alternative, a statutory damages award of $25,000 for 20 copyright infringement (plus interest), as well as an award of his costs ($502.50 plus interest) and 21 reasonable attorneys’ fees ($10,430 plus interest), and a permanent injunction enjoining Movie 22 Times, Inc. from further infringement. Mot. at 8-14. “The Court considers Plaintiff’s 23 declarations, calculations, and other documentation of damages in determining if the amount at 24 stake is reasonable.” Truong Giang Corp. v. Twinstar Tea Corp., 2007 U.S. Dist. LEXIS 100237, 25 at *33, 2007 WL 1545173, at *12 (N.D. Cal. Mar. 22, 2007). 26 The $150,000 figure is not supported by the evidence and would therefore not be 27 appropriate. However, as discussed below, a measure of damages closer to yet exceeding $25,000 1 would be reasonable, as it would be supported by the evidence and thus sufficiently tailored to 2 Defendant’s conduct. Therefore, the fourth Eitel factor weighs in favor of the Court granting 3 default judgment. 4 4. Possibility of a Dispute Concerning Material Facts 5 The fifth factor for the Court to consider is the possibility of a dispute concerning material 6 facts. Here, Rosen asserts Movie Times, Inc. has engaged in copyright infringement. Compl. at 1. 7 Movie Times, Inc. has failed to plead or otherwise defend in this action. Thus, there are no 8 disputes as to Rosen’s allegations. Additionally, Rosen submitted exhibits providing substantial 9 evidence of the alleged infringing use of the photograph on Movie Times, Inc.’s public website. 10 This renders the possibility of a dispute concerning material facts negligible, and therefore, the 11 fifth Eitel factor weighs in favor of the Court granting default judgment. 12 5. Whether the Underlying Default Was Due to Excusable Neglect 13 The sixth Eitel factor the Court considers is whether the underlying default was due to 14 excusable neglect. No facts in the present case indicate excusable neglect by the Defendant. The 15 record shows Movie Times, Inc. has been properly served throughout this case, and that Rosen has 16 tried to contact the company multiple times, to no avail. When a defendant is “properly served 17 with the Complaint, the notice of entry of default, as well as the papers in support of the instant 18 motion” for default judgment, their default “cannot be attributed to excusable neglect.” Ridola v. 19 Chao, 2018 U.S. Dist. LEXIS 84241, at *39, 2018 WL 2287668, at *13 (N.D. Cal. May 18, 2018) 20 (quoting Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D. Cal. 21 2001)). Thus, Movie Times, Inc.’s failure to respond to the complaint or to otherwise appear does 22 not constitute “excusable neglect”, and the sixth Eitel factor weighs in favor of the Court 23 granting default judgment. 24 6. Strong Policy Underlying the Federal Rules of Civil Procedure Favoring 25 Decisions on the Merits 26 The final factor the Court considers is the strong policy underlying the Federal Rules of 27 Civil Procedure favoring decisions on the merits. While public policy favors deciding each case 1 on the merits, a defendant’s “refusal to participate meaningfully in [the] litigation renders that 2 impossible.” Garvin v. Tran, 2011 U.S. Dist. LEXIS 132426, at *6, 2011 WL 5573995, at *2 3 (N.D. Cal. Nov. 16, 2011). Where a defendant refuses to litigate a case and default judgment is 4 therefore the plaintiff’s only recourse against the defendant, default judgment is appropriate. Id. 5 See also Johnson v. In Suk Jun, 2020 U.S. Dist. LEXIS 207488, at *17-18, 2020 WL 6507995, at 6 *6 (N.D. Cal. Nov. 5, 2020) (quoting United States v. Roof Guard Roofing Co., Inc., 2017 U.S. 7 Dist. LEXIS 215842, at *9, 2017 WL 6994215, at *3 (N.D. Cal. Dec. 14, 2017) (“When a 8 properly adversarial search for the truth is rendered futile, default judgment is the appropriate 9 outcome”)). Here, Movie Times, Inc. has refused to litigate, having failed to plead, oppose, or 10 otherwise defend. The seventh Eitel factor weighs in favor of the Court granting default 11 judgment. 12 All the Eitel factors weigh in favor of the Court entering default judgment. Therefore, the 13 Court GRANTS Rosen’s Motion for Default Judgment. 14 C. Relief Requested 15 1. Damages 16 Rosen seeks statutory damages under the Copyright Act. Mot. at 8-11. The Copyright Act 17 authorizes statutory damages of $750 to $30,000 per infringed work, 17 U.S.C. § 504(c)(1), but in 18 “a case where the copyright owner sustains the burden of proving” that “infringement was 19 committed willfully, the court in its discretion may increase the award of statutory damages” to up 20 to $150,000 per infringed work, 17 U.S.C. § 504(c)(2). Here, Rosen seeks an award of statutory 21 damages—for willful infringement—in the amount of $150,000 or, alternatively, a general 22 statutory damages award of $25,000. Mot. at 8-11. Infringement is willful when done “with 23 knowledge that the defendant’s conduct constitutes copyright infringement.” Peer Int’l Corp. v. 24 Pausa Records, Inc., 909 F.2d 1332, 1335 n.2 (9th Cir. 1990). However, “willfulness can also be 25 inferred from [the alleged infringer’s] failure to defend.” Microsoft Corp. v. Ricketts, 2007 U.S. 26 Dist. LEXIS 40898, at *11, 2007 WL 1520965, at *4 (N.D. Cal. May 24, 2007) (citing Philip 27 Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 500 (C.D. Cal. 2003)). 1 In light of Defendant Movie Times, Inc.’s default and general failure to respond or 2 otherwise defend in this action, the allegation of willful infringement pled in the Complaint is 3 admitted. Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008) (on 4 default, an allegation of willfulness is deemed admitted). Rosen claimed that Movie Times, Inc. 5 willfully infringed on his copyright, and he became aware of the willfully infringing use on July 6 18, 2018. Mot. at 2. Rosen also claimed the infringement continued even after the company was 7 served with notice of this suit. Mem. in Supp. at 7; Decl. of Barry Rosen in Support of 8 Application for Default J. (“Rosen Decl.”), Ex. 2, Dkt. No. 17-14; Rosen Decl., Ex. 4, Dkt. No. 9 17-16; Rosen Decl., Ex. 5, Dkt. No. 17-17. These allegations (now admitted) sufficiently 10 demonstrate willful infringement. 11 Nevertheless, the Court has broad discretion to determine the “amount of statutory 12 damages to be awarded, constrained only by the specified maxima and minima.” Harris v. Emus 13 Records Corp., 734 F.2d 1329, 1335 (9th Cir. 1984) (citing L.A. Westermann Co. v. Dispatch 14 Printing Co., 249 U.S. 100 (1919)). “Courts should ensure that statutory damages awards on 15 default judgment bear[] a plausible relationship to Plaintiff’s actual damages.” Michael Grecco 16 Prods. v. Enthusiast Gaming, Inc., 2020 U.S. Dist. LEXIS 231648, at *27, 2020 WL 7227199, at 17 *9 (N.D. Cal. Dec. 8, 2020) (citations and internal quotation marks omitted). Still, “[w]hile a 18 plaintiff in a trademark or copyright infringement suit is entitled to damages that will serve as a 19 deterrent, [plaintiff] is not entitled to a windfall.” Id.
20 Actual damages are often measured by the revenue that the plaintiff 21 lost as a result of the infringement, and a claim for lost profits may include a retroactive license fee measured by what the plaintiff would 22 have earned by licensing the infringing use to the defendant. . . . The amount the plaintiff would have earned can be estimated using 23 benchmark licenses, or what licensors have paid for use of similar work. 24 25 Michael Grecco Prods., 2020 U.S. Dist. LEXIS 231648, at *28, 2020 WL 7227199, at *10 26 (internal citations and quotation marks omitted). 27 Rosen typically licenses his photographs for one-year terms of exclusive use, with a 1 minimum licensing fee between $5,000 and $10,000. Mem. in Supp. at 10.
2 Statutory damages, however, are larger than actual damages 3 because[,] in addition to compensating Plaintiff, statutory damages are intended to provide a penalty against defendants and deter 4 potential future infringement by similarly situated actors. . . . To provide a sufficient penalty and adequate deterrence, courts often use 5 a multiple of a licensing fee in calculating statutory damages. . . . Courts have consistently held that a statutory damages award three 6 times the amount that the plaintiff would have received in licensing 7 f ees is appropriate under [17 U.S.C. § 504(c)]. . . . 8 Michael Grecco Prods., 2020 U.S. Dist. LEXIS 231648, at *28-29, 2020 WL 7227199, at *10 9 (internal citations and quotation marks omitted). “However, in some cases, including those 10 involving willful infringement, courts make higher awards.” Michael Grecco Prods., 2020 U.S. 11 Dist. LEXIS 231648, at *29, 2020 WL 7227199, at *10 (citations omitted). 12 Here, Rosen seeks “willful statutory damages in the amount of $150,000.00, or, in the 13 alternative, a statutory damages award of $25,000.” Mem. in Supp. at 6. He argues that, due to 14 the scarcity of his work and the willfulness of Defendant’s infringement, he “believes his statutory 15 damages to be at least $25,000.00 after considering a scarcity multiplier of five times willfulness 16 multiplier of the (minimal) licensing fee of $5,000.00 or maximum willful statutory damages of 17 $150,000.00.” Id. at 10. However, the Court deems an intermediate figure to be more 18 appropriate, as it bears a plausible relationship to Rosen’s actual damages1. Taking Rosen’s 19 $5,000 per year licensing fee, multiplied by 2.48 years (the approximate length of time between 20 the initial discovery of infringement on July 18, 2018 and the last-evidenced date of infringement2 21 on January 7, 2021), with a three times willfulness multiplier, results in $37,200. This amount 22 bears a plausible relationship to Rosen’s actual damages because it is three times his licensing fee, 23 a multiplier other courts have used, over the infringing period. And this amount, about one- 24 quarter of the $150,000 statutory damages limit, does not represent a “windfall”, especially when 25
26 1However, due to Defendant’s failure to plead, oppose, or otherwise defend, the exact amount of 27 actual damages is unascertainable. 2 Rosen Decl., Exs. 2, 4, 5. 1 taking into account the willful nature of the infringement. Therefore, the Court awards Rosen 2 $37,200 in damages. 3 2. Attorneys’ Fees and Costs 4 Rosen seeks $10,430 in attorneys’ fees. A court may award “full costs, including 5 reasonable attorneys’ fees, to the prevailing party in a claim arising under the Copyright Act.” 17 6 U.S.C. § 505. To calculate attorneys’ fees, courts multiply “the number of hours reasonably 7 expended on the litigation” by the “reasonable hourly rate.” Hensley v. Eckerhart, 461 U.S. 424, 8 433 (1983). However, the calculation should include hours “reasonably expended”, not hours that 9 are “excessive, redundant, or otherwise unnecessary.” Id. at 434. 10 “In determining a reasonable hourly rate, the district court should be guided by the rate 11 prevailing in the community for similar work performed by attorneys of comparable skill, 12 experience, and reputation.” Chalmers v. Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 1986) 13 (citation omitted). The party requesting fees bears “the burden of submitting billing records 14 to establish that the number of hours” requested are reasonable. Gonzalez v. City of Maywood, 15 729 F.3d 1196, 1202 (9th Cir. 2013). “Those hours [requested] may be reduced by the court 16 where documentation of the hours is inadequate; if the case was overstaffed and hours are 17 duplicated; if the hours expended are deemed excessive or otherwise unnecessary.” Chalmers, 18 796 F.2d at 1210 (citation omitted). 19 In the instant case, attorney Jonah A. Grossbardt represents Rosen. Grossbardt Decl. at 3. 20 Grossbardt submitted to the Court an invoice, listing the time he and his staff spent on each task, 21 the billing rates for each time block for each person, and a description of the work performed 22 during each block. Rosen Decl., Ex. 5. The Court can therefore determine whether the time 23 counsel and his staff spent working on this case was reasonably necessary. 24 Plaintiff seeks $10,430.00 in attorneys’ fees, which reflects a total of 20.1 attorney hours 25 and 7.6 staff hours spent on this matter. Grossbardt Decl. at 3. Grossbardt billed at a rate of $425 26 per hour for 1.2 hours and at a rate of $450 per hour for 18.9 hours. Id. The Court finds 27 Grossbardt’s rates reasonable, as they are in line with the prevailing rates for attorneys of similar 1 skill and experience appearing in this District. The hours Grossbardt spent on this case were 2 reasonable and supported by the billing records provided. 3 Additionally, two paralegals (Jamie James and Collette Navasartian) assisted Grossbardt 4 on this case, each billing at a rate of $200 for a combined total of 6.2 hours. Id. A prevailing 5 party may recover reasonable paralegal fees. See Missouri v. Jenkins, 491 U.S. 274, 285 (1989). 6 The paralegals’ rates here are reasonable. And the time they spent on this case was reasonable and 7 supported by the billing records provided, as it evidenced legitimate efforts to advance the 8 litigation. 9 An office administrator (Lia DiNuzzo) also assisted Grossbardt on this case, billing at a 10 rate of $125 per hour for 1.4 hours. Grossbardt Decl. at 3. Generally though, clerical costs are 11 subsumed in an attorney’s hourly rate. Reasonable attorneys’ fees
12 cannot have been meant to compensate only work performed 13 personally by members of the bar. . . . Thus, the fee[s] must take into account the work not only of attorneys, but also of secretaries, 14 messengers, librarians, janitors, and others whose labor contributes to the work product for which an attorney bills [their clients.] 15 16 Missouri, 491 U.S. at 285. Thus, this claimed clerical cost will not be awarded. 17 Rosen also seeks $502.50 in costs for pursuing this matter. His counsel included a 18 breakdown of these costs in the invoice for his legal services. Rosen Decl., Ex. 5 at 9. 19 These costs include the fee for Service of Process of the Summons and Complaint, the Complaint 20 Filing Fee, and a courier fee for shipment of documents. These costs are reasonable. 21 Accordingly, the Court grants Plaintiff these costs. 22 In summary, the Court GRANTS Plaintiff’s request for attorneys’ fees, paralegal fees, and 23 costs, for a total of $10,757.50. The Court DENIES Rosen’s request for office administrator fees. 24 3. Pre-Judgment and Post-Judgment Interest 25 Rosen seeks pre-judgment interest at a rate of 2.43 percent, beginning on July 18, 2018, the 26 date Defendant’s infringement was first discovered, through the date of judgment. Mem. in Supp. 27 at 12; Grossbardt Decl. at 3; Grossbardt Decl., Ex. 8, Dkt. No. 17-10. 1 Rosen also seeks post-judgment interest pursuant to 28 U.S.C. § 1961. Under section 2 1961, “the award of post-judgment interest on a district court judgment is mandatory.” Barnard v. 3 Theobald, 721 F.3d 1069, 1078 (9th Cir. 2013). Post-judgment interest is recoverable “on the 4 entire amount of the judgment, including damages, prejudgment interest, and attorney’s fees.” Air 5 Separation v. Underwriters at Lloyd’s of London, 45 F.3d 288, 290 (9th Cir. 1994). “Such interest 6 shall be calculated from the date of the entry of the judgment, at a rate equal to the weekly average 7 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal 8 Reserve System, for the calendar week preceding the date of the judgment.” 28 U.S.C. 1961(a). 9 Accordingly, the Court GRANTS Rosen’s request for pre-judgment and post- 10 judgment interest. 11 4. Injunction 12 Finally, Rosen seeks a permanent injunction against Movie Times, Inc. to prevent future 13 infringing activity. Mot. at 2. A court may “grant temporary and final injunctions on such terms 14 as it may deem reasonable to prevent or restrain the infringement of a copyright.” 17 U.S.C. § 15 502(a). “Generally, a showing of copyright infringement liability and the threat of future 16 violations is sufficient to warrant a permanent injunction.” Jackson v. Sturkie, 255 F. Supp. 2d 17 1096, 1103 (N.D. Cal. 2003) (quoting Sega Enters. Ltd. v. MAPHIA, 948 F. Supp. 923, 940 (N.D. 18 Cal. 1996)). However, Rosen has failed to establish there is a continuing threat of future 19 infringement by Defendant. With the instant motion, Rosen filed exhibits showing the infringing 20 use on Movie Times, Inc.’s website as of January 7, 2021. Rosen Decl., Exs. 2, 4, 5. But there is 21 no evidence of continuing infringement after January 7, 2021. Generally, injunctions are granted 22 in cases in which the violation is continuing, or in which specific facts indicate there is a threat of 23 future infringement. Neither situation applies to this case, so injunctive relief is not warranted. 24 Therefore, the Court DENIES Rosen’s request for a permanent injunction. 25 CONCLUSION 26 For the foregoing reasons, the Court GRANTS Rosen’s Motion for Default Judgment. 27 The Court awards Rosen $37,200 in damages. The Court GRANTS Rosen’s request for 1 attorneys’ fees, paralegal fees, and costs, for a total of $10,757.50. The Court DENIES Rosen’s 2 || request for office administrator fees. The Court GRANTS Rosen’s request for pre-judgment and 3 || post-judgment interest. And the Court DENIES Rosen’s request for a permanent injunction. 4 The Clerk shall close the file. 5 IT IS SO ORDERED. 6 || Dated: April 9, 2021 7 EDWARD J. DAVILA 8 United States District Judge 9 10 11 12
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Z 18 19 20 21 22 23 24 25 26 27 28 || Case No.: 20-cv-07043-EJD ORDER GRANTING MOTION FOR DEFAULT JUDGMENT