ME2 Productions v. Brower, et al., No. 2:2017cv00200 - Document 79 (D. Utah 2020)

Court Description: MEMORANDUM DECISION AND ORDER granting in part and denying in part 74 Motion for Default Judgment: any motion for attorney's fees must be filed within 14 days after the default judgment's entry. Plaintiff shall verify a current address for James Brower and file a Notice of Change of Address on or before 12/17/20. Signed by Judge David Nuffer on 12/3/20 (alt)

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ME2 Productions v. Brower, et al. Doc. 79 Case 2:17-cv-00200-DN Document 79 Filed 12/04/20 PageID.367 Page 1 of 4 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH ME2 PRODUCTIONS, INC. Plaintiff, MEMORANDUM DECISION AND ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT v. Case No. 2:17-cv-00200-DN JAMES BROWER, et al., District Judge David Nuffer Defendants. Plaintiff ME2 Productions, Inc. seeks entry of default judgment, a permanent injunction, and an award of attorney’s fees against Defendants James Brower, Angela Rivera, and Stephanie Washington. 1 Specifically, Plaintiff seeks an award of $10,000 in statutory damages against each Defendant; a permanent injunction enjoining each Defendant from directly or indirectly infringing Plaintiff’s copyright in the motion picture Mechanic: Resurrection; and an award of costs and attorney’s fees. 2 Plaintiff’s counsel in this case is the same as the plaintiff’s counsel in LHF Productions, Inc. v. Gonzales et al., No. 2:17-cv-00103-DN (D. Utah). A complaint 3 and motion for default judgment 4 were filed in Gonzales, which are substantively identical to those filed in this case. 5 1 Plaintiff’s Motion for Default Judgment, Permanent Injunction and Attorney’s Fees as to Certain Defendants (“Motion”), docket no. 74, filed August 6, 2020. 2 Id. at 2. 3 Amended Complaint for Copyright Infringement and Jury Demand, ECF No. 81 in Gonzales, filed June 20, 2019. 4 Plaintiff’s Motion for Default Judgment Permanent Injunction and Attorney’s Fees as to Certain Defendants, ECF No. 96, filed June 29, 2020. 5 Amended Complaint for Copyright Infringement and Jury Demand, docket no. 68, filed June 17, 2019; Motion, docket no. 74, filed August 6, 2020. Dockets.Justia.com Case 2:17-cv-00200-DN Document 79 Filed 12/04/20 PageID.368 Page 2 of 4 The only relevant differences are: the named Plaintiff; the copyrighted work; the named Defendants; and the Defendants against whom default judgment is sought. On October 28, 2020, a Memorandum Decision and Order Granting in Part and Denying in Part Motion for Default Judgment was entered in Gonzales (“Gonzales Memorandum Decision and Order”). 6 Because this case and Gonzales are substantively identical, the Gonzales Memorandum Decisions and Order’s analysis, findings of fact, and conclusions of law 7 are adopted in total and apply to Plaintiff’s Motion in this case. Defendants were served 8 with Plaintiff’s Complaint; failed to timely appear and respond; and the Clerk has entered the default of each Defendant. 9 Additionally, the factual allegations of Plaintiff’s Complaint, which are deemed admitted, 10 demonstrate that each Defendant is liable for willfully infringing 11 Plaintiff’s copyright in the motion picture Mechanic: Resurrection through use of BitTorrent protocols over the Internet. Therefore, Plaintiff is entitled to entry of a default judgment against Defendants, which includes an award of statutory damages 12 against each Defendant and a permanent injunction 13 enjoining each Defendant from directly or indirectly infringing Plaintiff’s copyright. Plaintiff is also entitled to an award of its costs and reasonable attorney’s fees. 14 But because an award of 6 ECF No. 101 in Gonzales, filed Oct. 28, 2020 (“Gonzales Memorandum Decision and Order”). 7 Id. at 2-25. 8 Affidavit of Service, docket no. 70, filed June 9, 2020. 9 Entry of Default Pursuant to FRCP 55(a) as to Certain Defendants, docket no. 73, filed July 31, 2020. The certificate of default for Defendant James Brower was mailed to him and returned as undeliverable. 10 Tripodi v. Welch, 810 F.3d 761, 764-65 (10th Cir. 2016). 11 17 U.S.C. §§ 411(a), 501; La Resolana Architects, PA v. Reno, Inc., 555 F.3d 1171, 1177-1180 (10th Cir. 2009). 12 17 U.S.C. § 504(c). 13 Id. § 502(a). 14 Id. § 505. 2 Case 2:17-cv-00200-DN Document 79 Filed 12/04/20 PageID.369 Page 3 of 4 $750 in statutory damages against each Defendant is just under the circumstances, 15 rather than the $10,000 requested, Plaintiff’s Motion 16 is GRANTED in part and DENIED in part. ORDER IT IS HEREBY ORDERED that Plaintiff’s Motion 17 is GRANTED in part and DENIED in part. Default judgment shall enter in favor of Plaintiff and against Defendants Angela Rivera and Stephanie Washington. The default judgment shall include an award to Plaintiff of $750 in statutory damages against each of Defendants Angela Rivera and Stephanie Washington and a permanent injunction enjoining each of Defendants Angela Rivera and Stephanie Washington from directly or indirectly infringing Plaintiff’s copyright in the motion picture Mechanic: Resurrection. Plaintiff is also entitled to an award of its costs and reasonable attorney’s fees, the amount of which shall be determined by subsequent motion. IT IS FURTHER ORDERED that any motion for attorney’s fees must be filed within 14 days after the default judgement’s entry. IT IS FURTHER ORDERED that the Motion is denied without prejudice as to Defendant James Brower because the Clerk’s Entry of Default Certificate that was mailed to him was returned as undeliverable. 18 On or before December 17, 2020, Plaintiff shall verify a current address for Brower and file a Notice of Change of Address. Plaintiff shall file a motion for default judgment against Brower within 14 days of that filing. Noncompliance with this order 15 Gonzales Memorandum Decision and Order at 4-25. 16 Motion, docket no. 74, filed August 6, 2020. 17 Motion, docket no. 74, filed August 6, 2020. 18 Docket no. 75, filed Aug. 5, 2020. 3 Case 2:17-cv-00200-DN Document 79 Filed 12/04/20 PageID.370 Page 4 of 4 will result in dismissal of Plaintiff’s claims against Brower, without further notice, for failure to prosecute. Signed December 3, 2020. BY THE COURT ________________________________________ David Nuffer United States District Judge 4

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