Glynn v. Cigar Store, Inc., No. 3:2018cv00031 - Document 25 (N.D. Cal. 2018)

Court Description: ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT. Signed by Judge Maxine M. Chesney on 06/27/2018. (mmclc2, COURT STAFF) (Filed on 6/27/2018)
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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 BRYAN GLYNN, Plaintiff, 8 v. 9 10 CIGAR STORE, INC., Defendant. 11 United States District Court Northern District of California Case No. 18-cv-00031-MMC ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR DEFAULT JUDGMENT Re: Dkt. No. 17 12 13 Before the Court is plaintiff Bryan Glynn’s (“Glynn”) Motion for Default Judgment, 14 brought pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure, and filed May 15 7, 2018.1 By order filed June 6, 2018, the Court afforded Glynn an opportunity to file 16 supplemental declarations, which Glynn subsequently filed. Having read and considered 17 the papers filed in support of the instant motion, including the supplemental declarations, 18 the Court rules as follows.2 BACKGROUND3 19 20 Glynn is a “professional photographer.” (See Dkt. No. 1 (“Compl.”) ¶ 2.) “In 2009, 21 Glynn created a photograph” of a Don Diego cigar (the “Work”) (see id. ¶ 11), and, “[a]t 22 the time he created the Work, . . . applied copyright management information to the Work 23 24 25 1 On May 24, 2018, Glynn served defendant Cigar Store, Inc. d/b/a Cigar Store Online (“CSI”) with notice of the instant motion. To date, CSI has not filed a response. 2 26 27 28 By order filed June 26, 2018, the Court vacated the hearing scheduled for July 6, 2018, and took the matter under submission. 3 The following facts are taken from the complaint and declarations filed in support of the instant motion. 1 consisting of the words ‘© 2009 Bryan Glynn’ in the bottom left corner of the photograph” 2 (see id. ¶ 12). On October 22, 2015, Glynn registered the Work with the United States 3 Copyright Office. (See id. ¶ 13 & Ex. 1.) 4 On January 24, 2017, Glynn “discovered the unauthorized use of [the Work] on 5 [CSI’s] website” (see Glynn Decl., filed June 6, 2018, ¶ 4; see also Compl. Ex. 2), through 6 which CSI sells cigars, including Don Diego cigars (see id. ¶¶ 4, 16 & Ex. 2). In 7 reproducing the Work on its website, CSI removed the copyright management 8 information. (See Compl. ¶ 36 & Ex. 2.) 9 On May 11, 2017, Glynn’s counsel sent a letter to CSI demanding that CSI “cease and desist” its infringement and compensate Glynn for its unauthorized use of the Work. 11 United States District Court Northern District of California 10 (See id. Ex. 3.) Although CSI thereafter ceased its infringing use of the Work, CSI has 12 not agreed to compensate Glynn. (See Glynn Decl., filed June 20, 2018, ¶ 7 (stating the 13 Work was “taken down by [CSI] sometime after May 11, 2017”); Compl. ¶ 23 (alleging 14 that, “[t]o date, the parties have failed to resolve [the] matter”).) 15 Based on the above, Glynn, on January 3, 2018, filed the instant action, by which 16 he asserts the following two claims for relief: (1) “Copyright Infringement,” brought 17 pursuant to the Copyright Act, 17 U.S.C. § 101, et seq., and (2) “Removal of Copyright 18 Management Information,” brought pursuant to the Digital Millennium Copyright Act 19 (“DMCA”), 17 U.S.C. § 1201, et seq. 20 On January 16, 2018, Glynn completed service of the summons and complaint on 21 CSI’s registered agent for service of process (see Dkt. No. 9), and, on February 22, 2018, 22 CSI having failed to respond to the complaint or otherwise appear, Glynn moved for entry 23 of default against CSI, which default was entered by the Clerk of Court on February 23, 24 2018 (see Dkt. Nos. 13-14). 25 DISCUSSION 26 By the instant motion, Glynn seeks entry of a default judgment against CSI, 27 pursuant to Rule 55(b)(2), as well as statutory damages, a permanent injunction, and 28 attorney’s fees and costs. 2 1 2 A. Jurisdiction Before a court may enter a default judgment, the court must determine that it has 3 subject matter jurisdiction over the action and personal jurisdiction over the defendant. 4 See In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) (holding, where default judgment is 5 sought, court has “affirmative duty to look into its jurisdiction over both the subject matter 6 and the parties”). 7 Here, as Glynn asserts claims under the copyright laws of the United States, the 8 Court has subject matter jurisdiction under 28 U.S.C. § 1331 (federal question 9 jurisdiction) and 28 U.S.C. § 1338(a) (jurisdiction over copyright actions). The Court also has personal jurisdiction over CSI, a “California corporation with its principal place of 11 United States District Court Northern District of California 10 business” in “San Ramon, California.” (See Compl. ¶ 10.) 12 B. Eitel Factors 13 Once the court establishes it has jurisdiction, its “decision whether to enter a 14 default judgment is a discretionary one.” See Aldabe v. Aldabe, 616 F.2d 1089, 1092 15 (9th Cir. 1980). The Ninth Circuit considers the following factors to determine whether 16 entry of a default judgment is appropriate: 17 18 19 20 (1) the possibility of prejudice to the plaintiff, (2) the merits of 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. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In considering the above- 21 22 listed factors, courts must take all “factual allegations in the plaintiff’s complaint, except those relating to the amount of damages, . . . as true.” See TeleVideo Systems, Inc. v. 23 Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) (internal quotation and citation omitted). 24 25 26 1. First Eitel Factor: Possibility of Prejudice to Plaintiff The first factor considers whether the plaintiff “will be prejudiced if the Court denies default judgment.” See Craigslist, Inc. v. Naturemarket, Inc., 694 F. Supp. 2d 1039, 1054 27 (N.D. Cal. 2010) (citing Eitel, 782 F.2d at 1471). Here, CSI has failed to participate in the 28 3 1 above-titled action, and, consequently, Glynn will be unable to adjudicate his claims or 2 recover damages unless the Court enters a default judgment against CSI. 3 Accordingly, the first factor weights in favor of entry of a default judgment. 4 2. Second and Third Eitel Factors: Merits of the Claim and Sufficiency of the Complaint 5 As, upon entry of default, all factual allegations are taken as true for purposes of 6 establishing the defendant’s liability, see TeleVideo, 826 F.2d at 917, courts consider the 7 second and third Eitel factors together, see, e.g., Autodesk, Inc. v. Flores, No. 10-CV8 01917, 2011 WL 337836, at *3 (N.D. Cal. Jan. 31, 2011). 9 10 a. Copyright Infringement Claim A plaintiff bringing a claim for copyright infringement must show “(1) ownership of 11 United States District Court Northern District of California the copyright; and (2) infringement—that the defendant copied protected elements of the 12 13 14 plaintiff’s work.” See Three Boys Music Corp. v. Bolton, 212 F.3d 477, 481 (9th Cir. 2000). Under the Copyright Act, copyright ownership “vests initially in the author or authors of the work, which is generally the creator of the copyrighted work.” See U.S. 15 Auto Parts Network, Inc. v. Parts Geek, LLC, 692 F.3d 1009, 1015 (9th Cir. 2012) 16 (internal quotation and citation omitted) (citing 17 U.S.C. § 201(a)). 17 18 Here, Glynn alleges he “created” the Work (see Compl. ¶ 11), which contains copyrightable elements, specifically, Glynn’s decisions regarding lighting, shading, angle, 19 and background, see, e.g., Ets-Hokin v. Skyy Spirits, Inc., 225 F.3d 1068, 1071, 1076 20 21 (9th Cir. 2000) (holding photographs of Skyy vodka bottle in front of “plain white or yellow backdrop, with back lighting” were copyrightable; noting “almost any[] photograph may 22 claim the necessary originality to support a copyright merely by virtue of the 23 photographers’ [sic] personal choice of subject matter, angle of photograph, [and] 24 lighting”) (alterations in original) (internal quotation and citation omitted). Glynn also 25 alleges CSI, without authorization, displayed the Work on its website. (See Compl. 26 ¶¶ 15-20 & Ex. 2.) Consequently, Glynn has established CSI’s liability under the 27 Copyright Act. 28 4 1 b. Removal of Copyright Management Information Claim Glynn’s claim under the DMCA is brought pursuant to 17 U.S.C. § 1202, which 2 provides, in relevant part: 3 4 5 No person shall without the authority of the copyright owner or the law— (1) intentionally remove or alter any copyright management information, . . . knowing, or . . . having reasonable grounds to know, that it will induce, enable, facilitate, or conceal an infringement of any right under this title. 6 See 17 U.S.C. § 1202(b). The DMCA defines “copyright management information” as, 7 inter alia, “[t]he name of, and other identifying information about, the author of a work.” 8 See 17 U.S.C. § 1202(c)(2). 9 Taken as true, Glynn’s allegations establish that CSI intentionally removed the watermark, “© 2009 Bryan Glynn,” from the Work in order to display the Work on its 11 United States District Court Northern District of California 10 commercial website, without authority to either remove such information or display the 12 Work. (See Compl. ¶¶ 12, 24-25.) Glynn has also provided a copy of the Work, which 13 contains the copyright management information, and the Work as displayed by CSI, 14 which photograph does not contain such information. (See Compl. ¶ 11 & Ex. 2.) 15 Consequently, Glynn has established CSI’s liability under the DMCA. 16 17 Accordingly, the second and third factors weigh in favor of entry of a default judgment. 18 3. 19 The fourth Eitel factor “examines the amount of money at stake in relation to the 20 seriousness of a defendant’s conduct.” See Craigslist, 694 F. Supp. 2d at 1060. Here, 21 Glynn seeks $175,000 in statutory damages. Although entry of a default judgment may 22 not be appropriate where the amount of money at stake is substantial or unreasonable, 23 see Eitel, 782 F.2d at 1472 (finding three million dollar claim in questionable legal 24 malpractice action weighed against entry of default judgment), Glynn seeks only statutory 25 damages, the amount of which is left to the Court’s discretion, see 17 U.S.C. § 504(c)(1); 26 17 U.S.C. § 1203(c)(3)(b). Moreover, $150,000 of the amount claimed here is sought 27 pursuant to the Copyright Act, and, as discussed below, Glynn is barred from recovering 28 statutory damages thereunder. Fourth Eitel Factor: Sum of Money at Stake 5 1 2 Accordingly, the fourth factor weighs neither in favor of nor against entry of a default judgment. 3 4. 4 Upon entry of default, the defendant is deemed to have admitted all well-pleaded Fifth Eitel Factor: Possibility of a Dispute Concerning Material Facts 5 facts in the complaint, except those relating to the amount of damages. See Benny v. 6 Pipes, 799 F.2d 489, 495 (9th Cir.1986) (holding “[w]ell-pleaded allegations are taken as 7 admitted on a default judgment”). Here, CSI, despite having been served with the 8 complaint and instant motion, has not responded to the complaint or moved to set aside 9 the entry of default, and thus has made clear that it does not intend to contest the 10 allegations asserted against it. United States District Court Northern District of California 11 Accordingly, the Fifth factor weighs in favor of entry of a default judgment. 12 5. 13 As noted, CSI has been served with both the complaint and instant motion. 14 Additionally, CSI, in an email to Glynn’s counsel, has acknowledged its awareness of the 15 instant action. (See Grossbardt Decl., filed May 7, 2018, Ex. G (stating CSI “received a 16 summons” in the instant action).) Under such circumstances, and absent any 17 explanation for CSI’s failure to appear, CSI’s default cannot be attributed to excusable 18 neglect. See Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 19 (N.D. Cal. 2001) (finding defendants’ default could not be “attributed to excusable 20 neglect” where defendants were “properly served with the [c]omplaint, the notice of entry 21 of default, as well as the papers in support of” the motion for default judgment). Sixth Eitel Factor: Whether Default was Due to Excusable Neglect 22 Accordingly, the sixth factor weighs in favor of entry of a default judgment. 23 6. 24 “[W]here a defendant’s failure to appear makes a decision on the merits Seventh Eitel Factor: Policy Favoring Decision on the Merits 25 impracticable, if not impossible, entry of default judgment is warranted.” See Craigslist, 26 694 F. Supp. 2d at 1061 (internal quotation and citation omitted). Here, CSI has failed to 27 participate in the instant action, preventing a decision on the merits. 28 Accordingly, the seventh factor favors entry of a default judgment. 6 1 7. Summary of Eitel factors In sum, the Eitel factors weigh in favor of entry of a default judgment against CSI. 2 The Court next turns to the relief requested. 3 C. Statutory Damages 4 Pursuant to both the Copyright Act and DMCA, a plaintiff may, prior to entry of a 5 final judgment, elect to recover an award of statutory, rather than actual, damages. See 6 17 U.S.C. § 504(c)(1); 17 U.S.C. § 1203(c)(1). Here, Glynn seeks statutory damages 7 under both statutes. 8 9 10 United States District Court Northern District of California 11 12 13 1. Statutory Damages Under the Copyright Act Pursuant to § 412 of the Copyright Act, and subject to limited exceptions not applicable here, “in order to recover statutory damages, the copyrighted work must have been registered prior to commencement of the infringement, unless the registration is made within three months after first publication” by the copyright holder, in which case statutory damages may be recovered for any infringement commenced during such 14 three-month period. See Derek Andrew, Inc. v. Proof Apparel Corp., 528 F.3d 696, 699 15 (9th Cir. 2008) (citing 17 U.S.C. § 412(2)); see also Zito v. Steeplechase Films, Inc., 267 16 F. Supp. 2d 1022, 1026 (N.D. Cal. 2003) (holding, “if a work is unpublished and 17 unregistered at the time of infringement, no statutory damages or attorney’s fees are 18 available”). “[T]he first act of infringement in a series of ongoing infringements of the 19 same kind marks the commencement of one continuing infringement under § 412.” See 20 Derek Andrew, Inc., 528 F.3d at 701 21 Here, Glynn has submitted evidence showing CSI’s infringing use of the Work 22 dating back to June 25, 2014, over a year before Glynn’s October 22, 2015, registration 23 of the Work. (See Glynn Decl., filed June 20, 2018, ¶ 6 (stating “Internet Archive shows 24 [CSI’s] use of [the Work] going back to June 25, 2014”); see also id. Ex. A (Internet 25 Archive screenshot showing CSI’s infringing use of the Work on June 25, 2014). 26 27 Accordingly, Glynn is barred from recovering statutory damages under the Copyright Act. 28 7 1 2. Statutory Damages Under the DMCA As discussed above, Glynn brings his DMCA claim under § 1202. Pursuant to the 2 DMCA, a court, in its discretion, can award statutory damages of not less than $2500, but 3 not more than $25,000, per violation of § 1202. See 17 U.S.C. § 1203(c)(3)(B). Here, 4 Glynn seeks statutory damages in the amount of $25,000. 5 6 7 Although statutory damages are intended to serve as a deterrent, plaintiffs are “not entitled to a windfall,” and, consequently, the amount awarded should bear a “plausible relationship to the plaintiff’s actual damages.” See Flores, 2011 WL 337836, at *8 8 (internal quotation and citation omitted). In this instance, Glynn has not shown what 9 damages, if any, he incurred as a result of CSI’s removal of the copyright management 10 information. 11 United States District Court Northern District of California Under such circumstances, the requested sum of $25,000 is excessive, and, 12 considering the violation alleged, namely, removal of information from a single image, as 13 well as the limited nature of CSI’s use of that image and voluntary cessation of such use, 14 the Court finds an award of $3500 under the DMCA is appropriate. 15 D. Permanent Injunction 16 Pursuant to § 502 of the Copyright Act, courts may grant injunctive relief 17 18 19 “reasonable to prevent or restrain infringement of a copyright.” See 17 U.S.C. § 502(a). “[E]ven in a copyright infringement case, the plaintiff must demonstrate a likelihood of irreparable harm as a prerequisite for injunctive relief, whether preliminary or permanent.” 20 See Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011). 21 Here, Glynn has failed to show he is likely to suffer irreparable harm absent 22 injunctive relief. Indeed, as Glynn acknowledges, CSI voluntarily ceased its use of the 23 Work after receiving the May 11, 2017, demand letter (see Glynn Decl., filed June 20, 24 2018, ¶ 7), and Glynn’s conclusory assertion that CSI “may again willfully infringe” upon 25 the Work (see Mot. 17:5) is insufficient to support a finding of irreparable harm, see In re 26 Excel Innovations, Inc., 502 F.3d 1086, 1098 (9th Cir. 2007) (holding “[s]peculative injury 27 cannot be the basis for a finding of irreparable harm”). 28 8 1 2 3 Accordingly, Glynn’s request for a permanent injunction will be denied. E. Attorney’s Fees and Costs As noted above, Glynn is barred from recovering attorney’s fees under the 4 Copyright Act. See 17 U.S.C. § 412. Pursuant to the DMCA, however, the Court may 5 award reasonable attorney’s fees, as well as costs, to the prevailing party. See 17 6 U.S.C. § 1203(b). Here, Glynn, having prevailed on his DMCA claim, requests $6279 in 7 attorney’s fees and $538.77 in costs. The Court addresses each request in turn. 8 9 10 1. Attorney’s Fees a. Reasonable Hours Expended and Reasonable Hourly Rate The Ninth Circuit applies the lodestar method to determine a reasonable attorney’s United States District Court Northern District of California 11 fee, “multiplying the number of hours reasonably expended by a reasonable hourly rate.” 12 See Ryan v. Editions Ltd. W., Inc., 786 F.3d 754, 763 (9th Cir. 2015). A “reasonable” 13 number of hours is “[t]he number of hours . . . [which] could reasonably have been billed 14 to a private client.” See Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 15 2013) (alterations in original) (internal quotation and citation omitted). “In determining the 16 reasonable hourly rate, the district court should be guided by the rate prevailing in the 17 community for similar work performed by attorneys of comparable skill, experience, and 18 reputation.” See Chalmers v. City of Los Angeles, 796 F.2d 1205, 1210-11 (9th Cir. 19 1986). The relevant community is generally the “forum in which the district court sits.” 20 See Camacho v. Bridgeport Fin., Inc., 523 F.3d 973, 979 (9th Cir. 2008). 21 Here, Glynn seeks $6279 in fees incurred for 17.4 hours of work. In support of his 22 motion, Glynn has submitted a detailed breakdown of the hours expended by his counsel 23 and the hourly rates charged for such work. (See Grossbardt Decl., filed May 7, 2018, 24 ¶¶ 8-12 & Ex. H). Specifically, Glynn’s counsel, who has been practicing law for ten 25 years, performed a total of 14.7 hours of work at a rate of $395 an hour, and a paralegal 26 performed 2.7 hours of work at a rate of $175 an hour. (See id. Ex. H; see also 27 Grossbardt Decl., filed June 20, 2018, ¶ 2.) Courts in this district have found similar, if 28 not higher, rates and numbers of hours to be reasonable under circumstances closely 9 1 resembling those presented here. See, e.g., Myeress v. USA World Business Services, 2 Inc., No. 16-CV-05236, 2017 WL 990587, at *6 (N.D. Cal. Mar. 3, 2017) report and 3 recommendation adopted by 2017 WL 976916 (N.D. Cal. Mar. 14, 2017) (awarding, on 4 motion for default judgment in copyright action, $7877.50 in fees for 22.3 hours of work; 5 finding hourly rates of $395 and $295 for associate with four years experience and 6 paralegal, respectively, reasonable). 7 8 9 b. Adjustment in Light of Result Achieved Where the prevailing party succeeds on only some of his claims for relief, “[t]he product of reasonable hours times a reasonable rate does not end the inquiry.” See Hensley v. Eckerhart, 461 U.S. 424, 434 (1983). Under such circumstances, to 11 United States District Court Northern District of California 10 determine whether such initial calculation produces a reasonable fee, a court must 12 consider whether the claims on which the plaintiff failed to prevail were related or 13 unrelated to the claims on which he succeeded, as work expended on “unrelated claim[s] 14 cannot be deemed to have been expended in pursuit of the ultimate result achieved.” 15 See id. at 434-35. 16 Claims are “related” if they share a “common core of facts or will be based on 17 related legal theories.” See id. at 436. Here, Glynn’s Copyright Act and DMCA claims 18 share a “common core of facts,” and, consequently, are related. Where successful and 19 unsuccessful claims are related, the court essentially looks to the “overall relief obtained.” 20 See id. In this instance, given the relief obtained, the Court finds the modest fee award 21 requested should not be reduced “simply because [Glynn] failed to prevail on every 22 contention raised in the lawsuit.” See id. at 435. 23 Accordingly, Glynn’s request for attorney’s fees will be granted. 24 Glynn’s request for “leave to submit documentation supporting any additional fees” 25 (see Mot. at 18:18), however, will be denied, as any fees incurred after the filing of the 26 motion would relate solely to the preparation of the supplemental declarations, which 27 pertain almost entirely to Glynn’s unsuccessful request for statutory damages under the 28 Copyright Act. See Hensley, 461 U.S. at 435 (holding fees for work not “expended in 10 1 pursuit of the ultimate result achieved” not recoverable). 2 2. 3 Glynn seeks $538.77 in costs, consisting of a $400 filing fee, $116.65 for service 4 of process, and $22.12 for “[d]isbursement to courier for shipment of documents.” (See 5 Grossbardt Decl. ¶¶ 6-7 & Ex. H.) Such costs were reasonably incurred. 6 7 8 Costs Accordingly, Glynn’s request for costs will be granted. F. Post-Judgment Interest Lastly, Glynn seeks post-judgment interest pursuant to 28 U.S.C. § 1961. Under § 1961, “the award of post judgment interest on a district court judgment is mandatory,” 10 and shall be recoverable on all aspects of the judgment. See Barnard v. Theobald, 721 11 United States District Court Northern District of California 9 F.3d 1069, 1078 (9th Cir. 2013). “Such interest shall be calculated from the date of the 12 entry of the judgment, at a rate equal to the weekly average 1-year constant maturity 13 Treasury yield, as published by the Board of Governors of the Federal Reserve System, 14 for the calendar week preceding the date of the judgment.” See 28 U.S.C. 1961(a). 15 Accordingly, Glynn’s request for post-judgment interest will be granted. CONCLUSION 16 17 18 19 20 For the reasons set forth above, Glynn’s motion is hereby GRANTED in part and DENIED in part, as follows: 1. To the extent Glynn seeks a default judgment against CSI, the motion is GRANTED. 21 2. To the extent Glynn seeks an award of statutory damages under the DMCA, 22 the motion is GRANTED, and Glynn shall have judgment against CSI in the amount of 23 $3500. 24 25 3. To the extent Glynn seeks statutory damages under the Copyright Act, the motion is DENIED. 26 4. To the extent Glynn seeks a permanent injunction, the motion is DENIED. 27 5. To the extent Glynn seeks attorney’s fees and costs in the amount of $6817.77, 28 the motion is GRANTED; to the extent Glynn seeks leave to file documentation 11 1 2 supporting additional fees, the motion is DENIED. IT IS SO ORDERED. 3 4 Dated: June 27, 2018 MAXINE M. CHESNEY United States District Judge 5 6 7 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 12