United States District Court, W.D. North Carolina, Asheville Division
MEMORANDUM OF DECISION AND ORDER
REIDINGER UNITED STATES DISTRICT JUDGE
MATTER is before the Court on the Plaintiff's
Motion for Default Judgment [Doc. 16].
September 24, 2018, the Plaintiff David Oppenheimer (the
“Plaintiff”) filed a complaint against the
Defendants James Sean Griffin and Jennifer Fowlkes Griffin
(collectively the “Defendants”), asserting claims
for copyright infringement and violations of the Digital
Millennium Copyright Act (“DMCA”). [Doc. 1]. On
January 9, 2019, the Court filed an Order to Show Cause sua
sponte instructing the Plaintiff to show good cause for the
failure to effectuate service on the Defendants. [Doc. 5]. On
January 23, 2019, the Plaintiff filed a Response to the
Court's Show Cause Order explaining his good-faith yet
unsuccessful attempts to serve the Defendants. [Doc. 7 at 2].
February 4, 2019, the Court entered an Order granting 60
additional days for the Plaintiff to effectuate service on
the Defendants. [Doc. 8]. On April 15, 2019, the Plaintiff
filed a Motion for Service by Alternative Means and Request
for Additional Time to Serve because of his continued
inability to serve the Defendants. [Doc. 9]. On May 22, 2019,
the Court entered another Order granting 60 additional days
for the Plaintiff to effectuate service on the Defendants but
denying the request for alternative service. [Doc. 10]. On
July 2, 2019, the Plaintiff filed affidavits of service,
indicating that the Defendants were served on June 13, 2019.
[Docs. 11, 12]. On September 3, 2019, the Court entered an
Order requiring the Plaintiff to either file an appropriate
motion or otherwise take further action with respect to the
Defendants or have his claims dismissed. [Doc. 13].
September 3, 2019, the Plaintiff filed a Motion for Entry of
Default against the Defendants for failure to answer or
otherwise plead in response to the complaint. [Doc. 14]. On
September 5, 2019, pursuant to Federal Rule of Civil
Procedure 55(a), the Clerk entered default against the
Defendants. [Doc. 15]. The Plaintiff now moves pursuant to
Rule 55(b)(2) of the Federal Rules of Civil Procedure for
default judgment against the Defendants, seeking the
following relief: (1) a finding that the Defendants are
liable for copyright infringement; (2) an award of statutory
damages for copyright infringement; (3) an award of statutory
damages for violations of the DMCA; (4) an award of costs and
attorney fees; and (5) entry of a permanent injunction
against the Defendants. [Doc. 16]. The Court held a hearing
on the Plaintiff's Motion on December 4, 2019.
STANDARD OF REVIEW
obtain a default judgment, a party must first seek an entry
of default under Federal Rule of Civil Procedure
55(a).” Hayhurst v. Liberty Int'l
Underwriters, No. 5:08-cv-5347, 2009 U.S. Dist. LEXIS
5347, at *2 (N.D.W.Va. Jan. 29, 2009); see Eagle Fire,
Inc. v. Eagle Integrated Controls, Inc., No.
3:06-cv-264, 2006 U.S. Dist. LEXIS 41054, at * 14, 2006 WL
1720681 (E.D. Va. June 20, 2006) (“The entry of default
is a procedural prerequisite to the entry of a default
judgment.”). Rule 55(a) states that the clerk must
enter default “[w]hen a party against whom a judgment
for affirmative relief is sought has failed to plead or
otherwise defend, and that failure is shown by affidavit or
otherwise.” Fed.R.Civ.P. 55(a). After the clerk enters
default, the party may seek a default judgment under Rule
55(b)(1) or (2), depending on the nature of the relief
sought. Rule 55(b) “authorizes the entry of a default
judgment when a defendant fails ‘to plead or otherwise
defend' in accordance with the Rules.” United
States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). By
such a default, a defendant admits the well-pleaded factual
allegations in the plaintiff's complaint. Ryan v.
Homecomings Fin. Network, 253 F.3d 778, 780 (4th Cir.
PLAINTIFF'S FACTUAL ALLEGATIONS
well-pleaded factual allegations of the Plaintiff's
complaint are deemed admitted by virtue of the
Defendants' default. Eagle Hosp. Physicians, LLC v.
SRG Consulting, Inc., 561 F.3d 1298, 1307 (11th Cir.
2009). The following is a summary of the relevant and
Plaintiff is a citizen of North Carolina engaged in the
professional photography business. [Doc. 1 at ¶ 1]. The
Plaintiff registered the photograph at issue in this matter
(the “Work”) with the Register of Copyrights at
the U.S. Copyright Office. [Id. at ¶ 8; Ex. B].
The Plaintiff is the sole owner and proprietor of all right,
title, and interest in and to the copyrights of the Work.
[Id. at ¶ 6]. The Work consists of an aerial
photograph of the Beech Mountain Ski Resort. [Doc. 1-2].
Plaintiff makes his photographs available online for print
and licensing through his website. [Id. at ¶
7]. The Plaintiff's custom and business practice is to
display his copyright management information
(“CMI”) on his copyrighted photographs when they
are first published to the website. [Id.]. The Work
displayed the Plaintiff's CMI and a watermark when it was
first published. [Id. at ¶ 10].
Defendants are citizens of Florida. [Id. at
¶¶ 4-5]. The Defendants own a vacation rental
property in North Carolina. [Id. at ¶ 2]. As
part of their advertisements for that property, the
Defendants uploaded and published, or directed others to
upload and publish, the Work to several websites on or about
July 5, 2017. [Id. at ¶11]. That photograph is
used to identify the location of the Defendants' property
immediately adjacent to the ski slopes at the Beech Mountain
Ski Resort. [Doc. 1-6]. The copies of the Work displayed on
those websites removed the CMI and watermark from the Work.
[Doc. 1 at ¶¶ 19-20].
about August 3, 2017, the Plaintiff discovered the
Defendants' infringement on the copyrights related to the
Work. [Id. at 11]. The Plaintiff sent cease and
desist letters to the Defendants via email on December 12,
2017 and August 18, 2018. [Id. at ¶ 13].
Despite those letters, the Defendants have continued to
infringe the Plaintiff's copyrights by displaying the
Work on several websites. [Id. at ¶
Jurisdiction is Proper.
courts have “original jurisdiction of any civil action
arising under any Act of Congress relating to patents, plant
variety protection, copyrights, and trademarks.” 28
U.S.C. § 1338(a); see also 28 U.S.C. §
1331. Accordingly, the Court has subject matter jurisdiction
over the above-captioned civil action as it was brought by
the Plaintiff against the Defendants for copyright
infringement pursuant to the Copyright Act, 17 U.S.C.
§§ 1 et seq., and the DMCA, 17 U.S.C.
§ 1202. [Doc. 1 at ¶ 1].
Court also must have personal jurisdiction over the
Defendants as required to render a valid default judgment.
For the Court to have personal jurisdiction, the Plaintiff
must prove, by a preponderance of the evidence, that
exercising jurisdiction will (1) comply with the forum
state's long-arm statute and (2) comport with the due
process requirements of the Fourteenth Amendment. See
Carefirst of Maryland, Inc. v. Carefist Pregnancy Centers,
Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation
omitted). Because North Carolina's long-arm statute has
been construed to extend as far as due process allows,
Christian Sci. Bd. of Directors of First Church of
Christ, Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir.
2001), this two-pronged test is collapsed into the single
inquiry of whether the exercise of personal jurisdiction over
the defendant comports with due process. Universal
Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559
(4th Cir. 2014).
of jurisdiction over a nonresident defendant comports with
due process if the defendant has sufficient “minimum
contacts” with the forum, such that to require the
defendant to defend its interest in that state “does
not offend traditional notions of fair play and substantial
justice.” Int'l Shoe Co. v. Washington,
326 U.S. 310, 316 (1945) (internal quotation marks omitted).
The sufficiency of the contacts depends on the circumstances
of the case. A court can have personal jurisdiction over a
defendant for all claims if the defendant's contacts with
the forum state are continuous and systematic. This is
referred to as “general jurisdiction.” However,
more limited contacts can be sufficient to establish personal
jurisdiction over a defendant where those contacts relate to
the substance of the particular claim being asserted. This is
referred to as “specific jurisdiction.” See,
e.g., Helicopteros Nacionales de Colombia, S.A. v.
Hall, 466 U.S. 408, 414-16 (1984). In determining
whether specific jurisdiction exists, the Court considers (1)
the extent to which the defendant purposefully availed itself
of the privilege of conducting activities in the state; (2)
whether the plaintiff's claims arise out of those
activities; and (3) whether the exercise of personal
jurisdiction would be constitutionally