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Malibu Media, LLC v. Brickhouse

United States District Court, E.D. Pennsylvania

August 27, 2019




         Plaintiff Malibu Media, LLC produces what is euphemistically referred to as "adult films." Malibu alleges that Defendant Terrelle Brickhouse infringed on four of its copyrighted works "using the internet and BitTorrent protocol." Mem. in Support of Motion for Default Judgment at 1 (Doc. No. 23). Malibu filed an amended complaint in this action on January 9, 2019. Although Malibu served Mr. Brickhouse with the amended complaint on January 21, 2019, see Affidavit of Service (Doc. No. 20), Mr. Brickhouse failed to file an answer or otherwise respond thereto. Malibu now moves for an entry of default judgment, seeking statutory damages of $1, 500 per infraction (for a total of $6, 000), a permanent injunction, and attorneys' fees. As with all of the other filings in this case, Mr. Brickhouse failed to respond to the Motion for Entry of Default Judgment.

         Although an entry of default judgment is appropriate in this case, Malibu has failed to explain why it is entitled to $1, 500 per infraction, which is twice the statutory minimum of $750. Because the Court concludes that the statutory minimum of $750 is sufficient in this case, the Court awards a total of $3, 000 in statutory damages, in addition to attorneys' fees and a permanent injunction against Mr. Brickhouse.


         Malibu alleges that the owner of IP address illegally downloaded and distributed four of its copyrighted works via the BitTorrent file distribution network. Malibu identified Terrelle Brickhouse as the IP address owner through use of a subpoena on the internet service provider and an investigator, IPP International.[1] Malibu then amended its complaint to name Mr. Brickhouse as the defendant in this action. When Mr. Brickhouse failed to file a timely answer, Malibu requested entry of default. The Clerk of Court entered default on February 13, 2019, and Malibu thereafter filed this Motion for Entry of Default Judgment and a supporting memorandum.

         Legal Standard

         Federal Rule of Civil Procedure 55 governs the procedure a plaintiff must follow to obtain a default judgment against a nonresponsive defendant. First, if the plaintiff shows the defendant's "fail[ure] to plead or otherwise defend, ... the clerk must enter [the defendant's] default," Fed.R.Civ.P. 55(a), which is only valid if the defendant was properly served. See Petrucelli v. Bohringer & Ratzinger, 46 F.3d 1298, 1304 (3d Cir. 1995).

         The plaintiff may then "apply to the court for a default judgment." Fed.R.Civ.P. 55(b)(2). The Court's initial inquiry is "whether the unchallenged facts constitute a legitimate cause of action[.]" 10A Charles Alan Wright, Arthur R. Miller, et al., Federal Practice and Procedure § 2688.1 (4th ed. 2019) (citing cases). As with the motion to dismiss stage, the Court accepts as true the well-pleaded factual allegations in the plaintiffs complaint, except those relating to damages, as though they were admitted or established by proof. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990). The Court also accepts all reasonable inferences that can be drawn from the complaint. Joe Hand Promotions, Inc. v. Yakubets, 3 F.Supp.3d 261, 270 (E.D. Pa. 2014). However, conclusory allegations and the parties' legal theories or "conclusions of law" are not entitled to the same presumption and are not deemed admitted. Wright & Miller, supra, § 2688.1.

         If the Court determines that the plaintiff has stated a cause of action, it must then assess damages. Unlike liability, damages "cannot be awarded simply on the basis of the pleadings, but must instead be established at an evidentiary hearing held pursuant to [Rule] 55(b)(2)," unless damages are "liquidated or computable" or the plaintiff otherwise submits such proof without a hearing. Comdyne I, 908 F.2d at 1152. Rule 55(b)(2)'s language regarding hearings is permissive, however. If the court can determine the amount of damages to be awarded based on affidavits or other evidentiary materials, "[t]he Court is under no requirement to conduct an evidentiary hearing with testimony." E. Elec. Corp. of N.J. v. Shoemaker Constr. Co., 657 F.Supp.2d 545, 552 (E.D. Pa. 2009); see Durantv. Husband, 28 F.3d 12, 15 (3d Cir. 1994) ("If it is necessary 'to determine the amount of damages or to establish the truth of any averment by evidence,' the court may conduct a hearing.") (emphasis added) (quoting Fed.R.Civ.P. 55(b)(2)). The Court did not conduct a hearing in this case because one was not required or helpful to the Court's discharge of its obligations.

         Default judgments are generally disfavored. See Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982). Indeed, the default judgment context usually offers none of the adversarial argument upon which the American legal system is founded and which remains a pillar of courts' ability to make informed and well-reasoned decisions. Thus, under Chamberlain v. Giampapa, 210 F.3d 154 (3d Cir. 2000), the district court must examine three additional factors to determine whether it should grant a default judgment: "(1) prejudice to the plaintiff if default is denied, (2) whether the defendant appears to have a litigable defense, and (3) whether defendant's delay is due to culpable conduct." Id. at 164.


         Malibu alleges that Mr. Brickhouse violated four of its copyrighted works. A claim for copyright infringement requires that the plaintiff prove: "(1) ownership of a valid copyright; and (2) unauthorized copying of original elements of the plaintiffs work." See Dun & Bradstreet Software Servs., Inc. v. Grace Consulting, Inc., 307 F.3d 197, 206 (3d Cir. 2002). Infringement is considered willful if, for example, the defendant fails to respond and default is entered or the defendant used BitTorrent protocol to gain access to a work for free that otherwise would have required payment. See Malibu Media, LLC v. Flanagan, No. 13-5890, 2014 WL 2957701, at *2 n.4 (E.D. Pa. Jul. 1, 2014).

         Mr. Brickhouse allegedly illegally downloaded Malibu's files through a BitTorrent file distribution network. Another court in this District has described the BitTorrent protocol as follows:

[T]he BitTorrent software works automatically, joining together multiple internet subscribers (the "swarm") who are seeking to download the same movie at the same time. These individuals do not know each other. The software sends different "bits" of the same movie to different users and when the overall download is completed, each internet subscriber who has logged on to the ...

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