Killer Joe Nevada LLC v. Does 1-15 Doc. 24

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION
Killer Joe Nevada LLC,
Plaintiff,
v. Case No. 2:13-cv-848
CHIEF JUDGE EDMUND A. SARGUS, JR.
John Does 1-15, Magistrate Judge Terence P. Kemp
Defendants.
OPINION AND ORDER

 

This matter is before the Court on two motions for default judgment ?led by plaintiff
Killer Joe Nevada, LLC. (ECF Nos. 20, 21.) These motions are directed to two of the John Doe
defendants named in the original complaint and later identi?ed as Phillip Spain and Heather
Dew. The Clerk entered default against Mr. Spain on June 6, 2014, and against Ms. Dew on July
31, 2014. The motions for default judgment will be granted as set forth below.

I. Background

KJN is a limited liability company located in Los Angeles, California and claims the
copyright to the motion picture Killer Joe. KIN ?led this action on August 13, 2013, alleging
that ?fteen defendants, identi?ed only by intemet protocol addresses, violated its copyright by
downloading the motion picture and sharing it with others using a BitTorrent protocol or torrent,
a type of peer-to?peer ?le sharing software. By order dated August 30, 2013, the Court granted
KJN leave to take early discovery which allowed KJN to trace IP addresses to Mr. Spain, Ms.

Dew, and Ina Whirlow. These three individuals were named as defendants in the amended

Dockets.Justia.com

complaint. Successful service of process was made only on Mr. Spain and Ms. Dew. After these
defendants failed to plead or otherwise defend, the Clerk entered their default.

KJN seeks $150,000 in statutory damages, as well as attorneys? fees and costs from each
defendant. KJN also requests that the Court permanently enjoin Mr. Spain and Ms. Dew from
infringing, directly or indirectly, rights in the motion picture.

11. Legal Standard

Federal Rule of Civil Procedure 55(b) authorizes a court to enter default judgment against
a party whose default has been entered by the clerk. Once default has been entered, a defaulting
defendant is considered to have admitted all the well-pleaded allegations relating to liability. See
Antoine v. Atlas Turner, Inc, 66 F.3d 105, 110 (6th Cir. 1995). In order to succeed on its claim
of c0pyright infringement under 17 U.S.C. ?101 et seq., plaintiff must prove that it owns a valid
copyright in the motion picture and that defendant violated one or more of plaintiff exclusive
rights by copying or distributing plaintiffs copyrighted motion picture without authorization.

See Lexmark Int Inc. v. Static Control Components, Inc, 387 F.3d 522, 534 (6th Cir. 2004);
Malibu Media v. Doe, 2013 WL 3945978, at *3 (ED. Mich. July 31, 2013). Here, the amended
complaint alleges all of the elements of plaintiff?s claim and defendants? default conclusively
establish those elements. See Thomas v. Miller, 489 .3d 293, 299 (6th Cir. 2007) (entry of
default judgment ?conclusively establishes every factual predicate of a claim for relief?).

The mere determination of defendant?s liability does not, however, automatically entitle
plaintiff to default judgment. The decision to grant default judgment falls within a court?s

discretion. 10A Charles Alan Wright Arthur R. Miller, Fed. Prac. Proc. Civ. ?2685 (3d

 In determining whether to enter judgment by default, courts often consider such factors as
the amount of money potentially involved; whether material facts or issues of

substantial public importance are at issue; whether the default is largely technical;

whether plaintiff has been substantially prejudiced by the delay involved; and

whether the grounds for default are clearly established or are in doubt.

Furthermore, the court may consider how harsh an effect a default judgment might

have; or whether the default was caused by a good?faith mistake or by excusable

or inexcusable neglect on the part of the defendant.
1d. (footnotes omitted).

111. Analysis

Applying the above factors to the present case, consideration of these factors militates in
favor of granting default judgment against Mr. Spain and Ms. Dew. Consequently, the only issue
remaining for the Court?s consideration is that of damages.

As noted above, KJN seeks $150,000 in statutory damages. The Copyright Act permits
an award of statutory damages in lieu of actual damages attributable to the infringement. l7
U.S.C. ?504(a) - Statutory damages for each individual act of infringement ordinarily range
from $750 to $30,000. 17 U.S.C. 504(c)(1). Where the copyright owner establishes willful
infringement, however, the Court may increase the award of statutory damages, up to a maximum
of $150,000 per infringement. 17 U.S.C. 504(c)(2). ?The Court has substantial discretion to
set statutory damages within the permitted range, but it is not without guidance.? Broadcast
Music, Inc. v. 11.81., Inc, 2007 WL 420790], at *4 (SD. Ohio Nov. 26, 2007), citing Douglas v.
Cunningham, 294 US. 207, 210 (1935). When determining the proper amount of statutory

damages, ??courts have looked to: (1) whether [d]efendants? infringement was willful, knowing,

or innocent; (2) [d]efendants? pro?t from infringement; (3) [p]laintiffs? loss from infringement;

and (4) deterring future violations by [d]efendants and similarly situated entities.m Broadcast
Music, Inc. v. 4737 Dixie Highway, LLC, 2012 WL 4794052, at *4 (SD. Ohio Oct. 9, 2012)
quoting H81, Inc., 2007 WL 4207901, at 

In order for KJN to recover the statutory maximum it seeks here, it must prove that Mr.
Spain and Ms. Dew willfully infringed its copyright. 17 U.S.C. KJN has alleged
facts that, when taken as true, could support a ?nding of willful infringement. This does not
mean, however, that KJN is automatically entitled to the statutory maximum. Rather, the Court
retains broad discretion to determine the appropriate damages amount. AF Holdings, LLC v.
Bossard, 976 F.Supp.2d 927, 931 (W.D. Mich. 2013).

Cases from other judges in this District considering facts similar to those presented here,
have not found an award of the statutory maximum to be justi?ed. Rather, these cases have
found that an award of $6,000 in statutory damages ?properly accounts for defendant?s gain,
plaintiffs loss, and the public?s interest in deterring future violations.? See, e. Riding Films,
Inc. v. John Does 129-193, 2015 WL 127912, *2 (SD. Ohio January 8, 2015), adopted and
a?irmed 2015 WL 574277 (SD. Ohio Feb. 11, 2015); The Power ofFew, LLC v. John Does 1?
2014 WL 5025671, *2 (SD. Ohio Oct. 8, 2014), adopted and af?rmed 2014 WL 5502341
(S.D. Ohio Oct. 30, 2014). The Court ?nds these decisions persuasive and adopts their reasoning
in ?nding that an award of $6,000 in statutory damages against each of the defendants is
appropriate here.

KIN also asks the Court to enjoin these defendants from directly or indirectly infringing

its copyrighted works. The injunction would prohibit these defendants? use of the intemet to

reproduce or distribute motion pictures without license or express permission. KJN also
asks the Court to order Mr. Spain and Ms. Dew to destroy all copies of Killer Joe downloaded
by them onto any computer hard drive or server or transferred onto any physical medium or
device in their possession, custody, or control. The Copyright Act authorizes temporary or ?nal
inj unctive relief as a remedy for infringement ?on such terms as [the court] may deem reasonable
to prevent or restrain infringement of a copyright.? 17 U.S.C. ?502(a). It is well established
?that a showing of past infringement and a substantial likelihood of future infringement justi?es
issuance of a permanent inj unction.? Bridgeport Music, Inc. v. Justin Combs Pub., 507 F.3d 470,
492 (6?11 Cir. 2007) (citations and quotation omitted). ?Not only is the issuance of a permanent
injunction justi?ed ?when a copyright plaintiff has established a threat of continuing
infringement, he is entitled to an injunction.? Id, quoting Walt Disney Co. v. Powell, 897 F.2d
565, 567 (DC. 1990). Otherwise, an award of damages without injunctive relief would amount
to a ??forced license to use the creative work of another.? Id, quoting Silverstein 12. Penguin
Putnam, Inc, 368 F.3d 77, 84 (2d Cir. 2004).

In this case, KJN has established past infringement by Mr. Spain and Ms. Dew. Courts in
this District typically consider the factual allegations of the amended complaint, the nature of the
BitTorrent system and the nature of the copyrighted work, in determining whether a plaintiff has
suf?ciently established a continuing threat to its copyright. See, 6. g. Riding Films, Inc, 2015
WL 127912. Applying those factors to this case and adopting the reasoning set forth in Riding
Film, 2015 WL 127912, at and other cases from this District, the Court ?nds that KJN has

suf?ciently established a continuing threat to its copyright. Consequently, the Court will grant

 request for injunctive relief.

This brings the Court to the issue of attorneys? fees. KIN seeks attorneys? fees in the
amount of $5,390.00 and costs in the amount of $477.27 from Mr. Spain. KJN seeks attorneys?
fees in the amount of $4,427.50 and costs in the amount of $405.01 from Ms. Dew. With respect
to Mr. Spain, counsel submitted a declaration stating that he spent 14 hours prosecuting
claims at a rate of $385 per hour. With respect to Ms. Dew, counsel submitted a
declaration stating that he spent 11.5 hours prosecuting the claims against her at the identical
hourly rate. KIN submitted itemized costs relating to each defendant.

Consistent with the other decisions from this District, including YK, LLC v. Does,
2015 WL 763268 (S.D. Ohio Feb. 23, 2015) and TCYK, LLC v. Does 1?10, 2015 WL 357066
(S.D. Ohio Jan. 27, 2015), adopted and af?rmed 2015 WL 795213 (SD. Ohio Feb. 25, 2015),
the Court ?nds that KJN is entitled to an award of reasonable attorneys? fees and costs.

However, those cases also found that requests for attorneys? fees in amounts similar to those
requested here are unreasonable. The Court agrees with the reasoning set forth in those cases and
adopts it here. As those cases found, an amount of $1 ,500 represents a reasonable attorneys? fee.
This is so here regardless of the fact that the amended complaint named two defendants. As the
other decisions have noted, KJN has used ?what are essentially form complaints and motions?
and notices and orders ?applied to multiple defendants or were similar or even identical to the
notices and orders issued in many other cases prosecuted in this Court.? TC YK, 2015 WL

763268, at 

With respect to the issue of costs, KJN seeks $477.27 from Mr. Spain, representing the

?ling fee of $400, service fees of $7.27 and an Look Up Fee? of $70.00. KIN seeks
$405.01 from Ms. Dew, representing the ?ling fee of $400 and service fees of However,
the Court notes that KIN incurred only one ?ling fee upon the ?ling of the original complaint.
Further, ?costs? as enumerated in 28 U.S.C. ?l920 include ?[f]ees of the clerk? but the cost of
service of summons is not included in that statutory de?nition. TCYK, 2015 WL 763268, at 
Rather, the expenses associated with effecting service are recoverable if a defendant fails,
without good cause, ?to sign and return a waiver requested by a Fed. R. Civ. P.
The docket does not re?ect that KIN ever requested these defendants to waive service of
process. Additionally, costs for investigative purposes to determine the identity of the defendant
have not been found by courts to be recoverable. TCYK, 2015 WL 357066, at see also
Achte/Neunte Boll King Betez'ligungs GMBH Co KG v. Palmer, 2011 WL 4632597, *2 (MD.
Fla. Oct. 6, 2011) (expenses for obtaining IP address ?not truly a cost of litigation?).
Consequently, KIN is entitled to attorneys? fees and costs, pursuant to 17 U.S.C. ?505, in the
total amount of $950.00 as to Mr. Spain and $950.00 as to Ms. Dew.
IV. Order

For the reasons set forth above, the motions for default judgment are GRANTED IN
PART AND DENIED IN PART as follows. (ECF Nos. 20, 21.) Phillip Spain and Heather
Dew are permanently enjoined from directly or indirectly infringing plaintiffs copyrighted
works, including by use of the internet to reproduce, copy, distribute, or make available for
distribution to the public plaintiffs copyrighted works, unless plaintiff provides defendants with

a license or express permission. Additionally, Phillip Spain and Heather Dew are ordered to

destroy all copies of plaintiff motion picture ?Killer Joe? that they have downloaded onto any
computer hard drive or server without plaintiff?s authorization and all copies that have been
transferred onto any physical medium or device in defendants? possession, custody, or control.
Finally, plaintiff is awarded damages against Phillip Spain in the amount of $6,000 and
attorneys? fees and costs in the amount of $950.00 and damages against Heather Dew in the
amount of $6,000 and attorneys? fees and costs in the amount of $950.00. The Clerk is

DIRECTED to ENTER JUDGMENT in accordance with this Opinion and Order.

IT IS SO ORDERED.

>7 up $015
DATE SARGUS, JR.
CHIEF UNITED STATES DISTRICT JUDGE