1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 NORTHERN DISTRICT OF CALIFORNIA 9

VICTOR ELIAS,

10 Case No. 20-cv-06031-RS Plaintiff, 11 v. ORDER GRANTING RENEWED 12 MOTION FOR DEFAULT JUDGMENT ALLURE SEO, et al., 13 Defendants. 14

15 16 Plaintiff Victor Elias is a professional photographer. He brings this action for copyright 17 infringement arising from an allegedly unauthorized use of one of his photographs on a website 18 promoting carpet and upholstery cleaning services. The original complaint named as defendant 19 “Fremont Carpet Cleaners,” an “unincorporated entity,” with an address listed in the city of 20 Fremont, California. Fremont Carpet Cleaners was alleged to be the owner of the website on 21 which Elias’ photograph appeared, www.carpetcleaning-fremont.com. 22 Elias subsequently filed a status report advising that he had discovered Fremont Carpet 23 Cleaners was a “defunct company” and that Allure SEO might be “the entity solely responsible for 24 the infringing use of Plaintiff’s photograph alleged in the Complaint.” Elias then filed an amended 25 complaint alleging that Allure is an unincorporated entity with its principal place of business in 26 Brooklyn, New York, and that Allure is the operator of the website in question. The amended 27 complaint also names as a defendant Alan Hamkon, the alleged principal of Allure, who is also a 1 When Allure and Hamkon failed to respond to the amended complaint, their defaults were 2 entered, and Elias moved for default judgment. The then-presiding magistrate judge issued a 3 Report and Recommendation that the motion be denied without prejudice, on the basis that Elias 4 had failed to establish personal jurisdiction over Allure and Hamkon was proper. The Report and 5 Recommendation was adopted, and Elias was permitted to file a renewed motion for entry of 6 default judgment, which is now pending. 7 Although the question is somewhat close, Elias has now made an adequate jurisdictional 8 showing. There is no dispute that because this case involves copyright infringement, which sounds 9 in tort, the purposeful direction analysis applies. Mavrix Photo, Inc. v. Brand Techs., Inc., 647 10 F.3d 1218, 1228 (9th Cir. 2011). Purposeful direction is analyzed under the three-part “effects 11 test” derived from Calder v. Jones, 465 U.S. 783 (1984), which “requires that ‘the defendant 12 allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) 13 causing harm that the defendant knows is likely to be suffered in the forum state.’” Id. (citations 14 omitted). 15 The complaint plainly alleges intentional acts. Elias has adequately shown those acts— 16 including the creation and maintenance of a website soliciting customers for Fremont Cleaners and 17 using a copyrighted photo without consent— were “expressly aimed” at California. While the 18 amended complaint itself does not clearly tie Allure and Hamkon to conduct directed at California, 19 the showing in the renewed motion includes evidence of their own solicitation of business in 20 California as well as their responsibility for the use of the photo on the original version of the 21 website, which quite expressly solicited California residents to do business in California. 22 Turning to the merits, entry of default judgment is warranted. Following entry of default, a 23 district court’s decision as whether to enter a default judgment is discretionary. See Fed. R. Civ. P. 24 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In exercising its discretion, the court 25 may consider: “(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s 26 substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; 27 (5) the possibility of a dispute concerning material facts; (6) whether the default was due to 1 excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure 2 favoring decisions on the merits.” Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). In 3 considering these factors, all factual allegations in the complaint are taken as true, except for those 4 relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987) 5 The Eitel factors support default judgment in this case. First, Elias would be prejudiced by 6 the denial of its default motion as he could not recover for the infringement of his work. The 7 second and third Eitel factors also favor Elias, as his claim is adequately pleaded and no reason to 8 doubt its merit is apparent. The fourth Eitel factor “pertains to the amount of money at stake in 9 relation to the seriousness of [d]efendant’s conduct.” Brightpoint Distribution, LLC v. AliphCom, 10 2017 WL 7310780, at *4 (N.D. Cal. Dec. 4, 2017) (internal quotation marks omitted). The 11 damages Elias is requesting, while not trivial, are relatively modest and are not out of line, given 12 his status as a professional photographer and the potential value of his work. 13 The fifth factor weighs in Elias’ favor as there is little reason to assume the central material 14 facts would be in significant dispute. Finally, while Allure and Hamkon’s reasons for not 15 participating in the litigation are unknown, there is no indication of “excusable neglect.” Under 16 these circumstances, and on this record, the preference for a resolution on the merits must yield to 17 Elias’ right to a determination of his claims. See Eitel, 782 F.2d at 1472. 18 The only remaining question is the amount of damages. Elias seeks the maximum statutory 19 damages for non-willful infringement, $30,000, thereby foregoing his pleaded claim that the 20 infringement was willful. An award in that amount is appropriate. See Microsoft Corp. v. Nop, 549 21 F. Supp. 2d 1233, 1238 (E.D. Cal. 2008) (“statutory damages are appropriate in default judgment 22 cases because the information needed to prove actual damages is within the infringers’ control and 23 is not disclosed.). 24 Elias also seeks attorney fees in the amount of $2400, contending that is the amount 25 allowed under Rule 55-3 of the Civil Local Rules for the Central District of California in the 26 context of default judgments. Although this is the Northern District of California, where those 27 rules do not apply, the modest amount is reasonable in light of what the record shows as to the 1 nature and extent of the services performed. Finally, Elias has adequately shown an entitlement to 2 || costs in the amount of $611.84. 3 The motion for default judgment is granted. A separate judgment will issue.! 4 5 || ITISSO ORDERED. 6 7 Dated: July 14, 2022

ICHARD SEEBORG

9 Chief United States District Judge 10 11 12

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19 20 21 22 23 24 25 _. As Elias has abandoned pursuit of Fremont Carpet Cleaners, it is hereby dismissed, to permit 27 entry of a final judgment in this case. 28 CASE No. 20-cv-06031-RS