Opinion
Case No. 2:23-cv-00028-SB-AFM
2023-06-16
MICHAEL GRECCO PRODUCTIONS, INC., Plaintiff, v. TREKMOVIE.COM et al., Defendants.
Peter R. Afrasiabi, Alec Pierce Schulman, One LLP, Newport Beach, CA, for Plaintiff.
Peter R. Afrasiabi, Alec Pierce Schulman, One LLP, Newport Beach, CA, for Plaintiff. ORDER GRANTING IN PART PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT [DKT. NO. 22] Stanley Blumenfeld, Jr., United States District Judge
Plaintiff Michael Grecco Productions, Inc. owns the copyright in an image of actor Terry Farrell portraying the character Jadzia Dax in the series Star Trek: Deep Space Nine. Dkt. No. 22-1 at 2. Plaintiff alleges that Defendants Anthony Pascale, SciFanatic Network, and TrekMovie.com infringed Plaintiff's copyright to the image by placing the image on their website, TrekMovie.com. Id. Plaintiff filed a complaint for copyright infringement under the United States Copyright Act, 17 U.S.C. § 501. Dkt. No. 1 ¶ 1. After Defendants failed to respond to Plaintiff's complaint, the clerk entered default against Defendants. Dkt. No. 17. Plaintiff now moves for default judgment seeking statutory damages, attorneys' fees, and costs. Dkt. No. 22-1 at 4, 10, 14. Defendants have not filed an opposition. For the following reasons, Plaintiff's motion is granted in part.
Plaintiff alleges that TrekMovie.com is controlled and operated by the other Defendants in the Central District of California. Dkt. No. 22-1.
The prayer for relief in the complaint includes a request for an injunction, but Plaintiff does not seek injunctive relief in its motion for default judgment.
I.
Before a court may rule on an application for default judgment, it must first determine whether the application complies with Federal Rule of Civil Procedure 55 and Local Rule 55-1. PepsiCo, Inc. v. Cal. Security Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002). The application must set forth: (1) when and against which party the default was entered; (2) the identification of the pleading to which default was entered; (3) whether the defaulting party is an infant or incompetent person, and if so, whether that person is adequately represented; (4) that the Servicemembers Civil Relief Act (50 U.S.C. § 3931) does not apply; and (5) that notice of the application has been served on the defaulting party (if required). Id.
Once these procedural requirements are met, "[g]ranting or denying a motion for default judgment is a matter within the court's discretion." Landstar Ranger, Inc. v. Parth Enters., Inc., 725 F. Supp. 2d 916, 919 (C.D. Cal. 2010) (citations omitted). The Ninth Circuit has identified seven factors courts may consider when exercising this discretion: "(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." Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986).
Factual allegations—other than those relating to the damages amount—are considered admitted upon default. Fed. R. Civ. P. 8(b)(6); see Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977). However, a court must still consider whether the complaint contains the required factual support and asserts legally sufficient claims.
II.
Plaintiff's motion satisfies the procedural requirements for default judgment. Defendants were served with the complaint and summons through email after the Court granted Plaintiff's application to allow alternate service. Dkt. Nos. 12 (application to authorize email service), 13 (order granting application), 14 (proof of service). Because Defendants did not appear or answer the complaint, the clerk entered default against Defendants. Dkt. No. 17. Plaintiff's counsel subsequently discovered a new viable address for Defendants and served Defendants at this address. Dkt. Nos. 9, 10, 11.
Plaintiff's moving papers contain the information required by both the Local Rules and the Federal Rules of Civil Procedure; Defendants are not incompetent persons or minors and are not exempted under the Servicemembers Civil Relief Act; and notice of the motion was served on Defendants. Dkt. No. 22 at 2.
The Eitel factors also weigh in favor of granting a default judgment: (1) Plaintiff would be prejudiced if default judgment is not entered because it cannot otherwise obtain relief for Defendants' violations; (2) Plaintiff's claims for copyright infringement appear to be meritorious; (3) Plaintiff's complaint adequately pleads plausible claims for infringement, as it alleges both ownership of a valid mark and copying of protected elements of the work, see Feist Publ'ns., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991); (4) the sum of money sought by Plaintiff is limited to statutory damages to be awarded in the Court's discretion as well as attorneys' fees and costs; (5) Defendants have made no attempt to defend this case and the undisputed allegations are accepted as true; (6) there is no reason to believe that Defendants' default results from excusable neglect; and (7) Defendants' failure to appear or respond makes deciding the case on the merits impractical.
III.
For Defendants' infringement of Plaintiff's copyright, Plaintiff seeks statutory damages of $150,000 (the maximum amount for willful infringement) or, alternatively, 10 times its standard licensing rate of $2,500-$3,500. Dkt. No. 22-1 at 11. Plaintiff asserts that the damages are warranted because (1) its "livelihood depends on the protection of copyrights," (2) Defendants acted willfully to infringe the copyright by recklessly disregarding Plaintiff's [intellectual property] rights, (3) Defendants' failure to appear has prevented Plaintiff from determining and proving the extent of Defendants' infringement and the actual damages to which Plaintiff is entitled, (4) the amount is reasonable because it is "within the statutorily prescribed minimum and maximum," and (5) the award will "vindicate [Plaintiff's] claim of copyright infringement." Id. at 10-13.
A copyright infringer is liable for either statutory damages or the copyright owner's actual damages plus any additional profits of the infringer. 17 U.S.C. § 504(a). At any time before final judgment, the copyright holder may elect to recover an award based on statutory damages instead of actual damages. Id. § 504(c). Where an infringer is found liable, a Plaintiff can recover "a sum of not less than $750 or more than $30,000 as the court considers just." Id. § 504(c)(1). "In a case where the copyright owner sustains the burden of proving, and the court finds, that infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." Id. § 504(c)(2). Willfulness in this context extends to infringement by one who acts in reckless disregard of the rights of a copyright holder. Star Fabrics, Inc. v. Zappos Retail, Inc., No. 13-cv-00229-MMM, 2013 WL 12123687, at *6 (C.D. Cal. Sept. 10, 2013) (citing 3 Nimmer on Copyright, § 14.04[B][3], at 14-52 (2000)). In determining the proper amount of statutory damages, courts are to apply their discretion, guided by what is just, the facts of a particular case, the nature of the copyright, the circumstances of the infringement, and the minimum and maximum damages allowed. Peer Int'l Corp. v. Pausa Recs., Inc., 909 F.2d 1332, 1336 (9th Cir. 1990).
A copyright plaintiff may prove willfulness by indirect evidence, including a defendant's conduct. Star Fabrics, Inc., 2013 WL 12123687, at *7. Here, Plaintiff alleges that Defendants' willfulness can be inferred from the circumstantial evidence surrounding the improper publication of the copyrighted photograph. The photograph was taken of "Terry Farrell as the character Jadzia Dax in the series Star Trek: Deep Space Nine" and is immediately recognizable by Star Trek fans. Dkt. No. 1 ¶¶ 10-11 ("Michael Grecco authored the iconic image of Farrell that Star Trek fans immediately associate with the show."); see also id. ¶ 11 ("This iconic image has been licensed to media outlets for many thousands of dollars."). Plaintiff also alleges facts that would suggest that Defendants knew or should have known of the copyrighted protection of this photograph. According to the complaint, "Defendants' website TrekMovie is a 'blogging' website dedicated to reporting all things Star Trek." Id. ¶ 13. Given the nature of Defendants' business and the fame of the photograph in that business, it is reasonable to infer that Defendants at a minimum acted in reckless disregard of Plaintiff's rights. On this record, the Court finds that Plaintiff has demonstrated the requisite willfulness.
While the infringing conduct appears to have been willful, Plaintiff has not established that it would be appropriate to award the statutory maximum of $150,000 or, alternatively, 10 times its standard licensing rate. Plaintiff acknowledges that it likely would be able to prove only that the use of the photograph was reckless. Dkt. No. 22-1 at 11-12. Moreover, Plaintiff does not provide any substantial support for its maximum or alternative request. Instead, Plaintiff largely offers broad generalities about the need to vindicate its intellectual property rights and the basic parameters of statutory damages. Id. at 13-14. In these circumstances, the Court finds that an award of $9,000, three times the average licensing fee for the infringed photograph, is sufficient to protect Plaintiff's rights and discourage Defendants from future acts of infringement. See Nat'l Photo Grp., LLC v. Pier Corp., No. 13-cv-01165-DOC, 2014 WL 12576641, at *4 (C.D. Cal. Mar. 10, 2014) (noting that "courts typically award two to three times the license fees").
IV.
Plaintiff also seeks $12,860 in attorneys' fees and $1,288.46 in costs incurred in prosecuting this case. Dkt. No. 22-3 ¶ 20.
In a copyright infringement action, the court may allow the prevailing party to recover reasonable attorneys' fees. 17 U.S.C. § 505. An award of attorneys' fees to a prevailing plaintiff "serve[s] the purpose of encouraging private enforcement and deterring infringements." Frank Music Corp. v. Metro-Goldwyn-Mayer Inc., 886 F.2d 1545, 1556 (9th Cir. 1989). The Court has an independent duty to assess the reasonableness of a motion for attorneys' fees. Gates v. Deukmejian, 987 F.2d 1392, 1398 (9th Cir. 1992). The moving party requesting attorneys' fees bears "the burden of submitting billing records to establish that the number of hours it has requested is reasonable." Gonzalez v. City of Maywood, 729 F.3d 1196, 1202 (9th Cir. 2013). While attorneys are not required to document every minute worked in great detail, they must "identify the general subject matter of his time expenditures." Trs. of Drs. Guild of Am.-Producer Pension Benefits Plans v. Tise, 234 F.3d 415, 427 (9th Cir. 2000). "The district court should exclude hours 'that are excessive, redundant, or otherwise unnecessary.' " McCown v. City of Fontana, 565 F.3d 1097, 1102 (9th Cir. 2009) (quoting Hensley v. Eckerhart, 461 U.S. 424, 434, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983)).
Here, Plaintiff initially provided only the total number of hours worked by each attorney, the rate charged by each attorney, and a brief list of five activities the attorneys performed during the last eight months. Dkt. No. 22-3 ¶¶ 21-23. Without more information about the amount of time spent on each activity and the comparable rates for attorneys performing similar work, the Court could not determine whether the attorneys' fees requested were reasonable. See Namecheap, Inc. v. Amecheap.com, No. 12-cv-03868-GAF, 2013 WL 12131574, at *7 (C.D. Cal. Jan. 3, 2013) (denying request for attorneys' fees and costs without prejudice because Plaintiff's counsel did not provide evidence to support its request).
After the Court issued its tentative ruling stating its intent to inquire further about Plaintiff's counsel's fees at the hearing on this motion, Plaintiff filed a supplemental declaration with billing records that show the hours spent by each attorney on each task performed in this case. Dkt. No. 23-1. Though counsel failed to provide evidence of comparable rates for similar attorneys performing similar work, the Court finds the rates requested for each attorney are reasonable based on its experience and similar cases in the district. See Ingram v. Oroudjian, 647 F.3d 925, 928 (9th Cir. 2011) (finding that a district court may rely "in part, on its own knowledge and experience" to determine reasonable hourly rates when awarding attorneys' fees); see also Westgate MFG, Inc. v. Norco Wholesale Elec. Supply Inc., No. 21-cv-02059-JWH, 2022 WL 3101766, at *7 (C.D. Cal. Aug. 3, 2022) (finding hourly rates ranging from $460 to $710 reasonable in a trademark infringement case resulting in default judgment). Consequently, the Court finds that rates of $650 per hour for Partner Peter R. Afrasiabi and $350 per hour for Associate Alec P. Schulman are appropriate in this case.
Plaintiff filed its supplemental declaration without leave of court and erroneously presented it on the docket as a Notice of Motion and Motion. While the Court could strike the supplement as improperly filed, it has elected not to do so because it contains useful information and has not caused prejudice. See Fantasy, Inc. v. Fogerty, 984 F.2d 1524, 1527 (9th Cir. 1993), rev'd on other grounds, 510 U.S. 517, 114 S.Ct. 1023, 127 L.Ed.2d 455 ("A party may not file supplemental pleadings, briefs, authorities, or evidence without leave of court granted for good cause. The judge may strike supplemental filings made without leave of court.").
The Court turns to the number of hours counsel spent litigating this case. District courts may impose a small "haircut" to a party's request for attorneys' fees without explanation. Moreno v. City of Sacramento, 534 F.3d 1106, 1112 (9th Cir. 2008). This case involves the unauthorized use of a single copyrighted photograph that resulted in the preparation of a relatively straightforward complaint and the filing of a motion for default judgment by lawyers who specialize in intellectual property law. The Court has reviewed the billing records provided in Plaintiff's supplemental declaration. Having determined that a small reduction in fees is appropriate to account for some excessive time spent on the case, the Court will reduce Plaintiff's counsel's total fee award by ten percent. Dkt. No. 23-1.
The principal basis for the reduction is the amount of time spent supervising the reasonably straightforward work performed in this case.
Multiplying the reduced hours by Plaintiff's counsel's rates, the Court finds an award of $11,574 in attorneys' fees in this case reasonable.
Plaintiff also sought to recover its costs in the amount of $1,288.46. Generally, a plaintiff is entitled to recover its full costs, subject to the Court's discretion. 17 U.S.C. § 505. However, Plaintiff failed to provide information to substantiate its claimed costs. The declaration submitted in support of the motion for default judgment simply states that, "[i]n bringing this action, [Plaintiff's counsel's] firm has incurred $1,288.46 in litigation costs." Dkt. No. 22-3 ¶ 19. At the hearing on the motion, Plaintiff agreed to the Court's proposed award of $1,243.01 in costs, consisting of (1) the $402 filing fee; (2) $220.67 for Service of Process on Anthony Pascale; (3) $220.67 for Service of Process on SciFanatic Network; and (4) $399.67 for Service of Process on TrekMovie.com. Dkt. Nos. 23-9, 23-10, and 23-11.
Accordingly, the Court will grant in part Plaintiff's request for attorneys' fees and costs.
V.
In sum, the Court GRANTS IN PART Plaintiff's motion. Plaintiff is AWARDED $9,000 in statutory damages. Plaintiff is AWARDED $11,574 in attorneys' fees and $1,243.01 in costs. Plaintiff is ORDERED to serve a copy of this order and the judgment concurrently filed on Defendants via email. Plaintiff shall file proof of service by June 23, 2023. A Final Judgment will be entered separately.
IT IS SO ORDERED.