United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI UNITED STATES DISTRICT JUDGE
matter comes before the Court on Plaintiff Christ Center of
Divine Philosophy, Inc.'s Motion for Default Judgment
[Doc. No. 10]. On October 7, 2016, default was entered
against Defendant Ellen Veronica Elam, and Defendant has not
responded to the motion. For the reasons stated below, the
Court finds Plaintiff's motion should be granted.
January 28, 2016, Plaintiff filed the present action alleging
it held, by assignment, valid copyrights in thirty-one
separate publications created by Audle Allison, and Defendant
willfully infringed such work by publishing and selling three
books containing copyrighted material found in four of the
works [Doc. No. 1]. Defendant was personally served with the
Summons and Complaint on August 25, 2016 [Doc. No.
To date, Defendant has neither answered nor otherwise
responded to the Complaint. On October 7, 2016, the Court
Clerk entered default against Defendant for failing to plead
or otherwise defend the present action [Doc. No. 9]. Pursuant
to Rule 55(a) of the Federal Rules of Civil Procedure,
Plaintiff, accordingly, moves for an entry of default
judgment consisting of statutory damages totaling $120, 000
and an injunction prohibiting Defendant from infringing upon
Plaintiff's copyrighted works.
entry of default judgment is committed to the sound
discretion of the Court. Tripodi v. Welch, 810 F.3d
761, 764 (10th Cir. 2016). The Court may consider a variety
of factors in the exercise of such discretion, including:
(1) the degree of actual prejudice to the defendant; (2) the
amount of interference with the judicial process; (3) the
culpability of the litigant; (4) whether the court warned the
party in advance that dismissal of the action would be a
likely sanction for noncompliance; and (5) the efficacy of
Ehrenhaus v. Reynolds, 965 F.2d 916, 921 (10th Cir.
1992) (internal citations omitted). Default judgments are
generally disfavored in light of the policy that cases should
be tried upon their merits whenever reasonably possible.
In re Rains, 946 F.2d 731, 732 (10th Cir. 1991).
Nonetheless, default judgment is viewed as a reasonable
remedy when the adversary process has been halted because of
an essentially unresponsive party. Id.
defendant fails to answer or otherwise defend against an
action, Rule 55 of the Federal Rules of Civil Procedure
provides two distinct sequential steps: the entry of default
and the entry of default judgment. See Fed. R. Civ.
P. 55(a), (b); Guttman v. Silverberg, 167 F.
App'x 1, 2 n. 1 (10th Cir. 2005) (unpublished)
(“The entry of default and the entry of a judgment by
default are two separate procedures.”). Initially, a
party must ask the Clerk of the Court to enter default.
Fed.R.Civ.P. 55(a). Only when the Clerk has complied may a
party seek default judgment. Garrett v. Seymour, 217
F. App'x 835, 838 (10th Cir. 2007) (unpublished) (holding
that entry of default is a prerequisite for the entry of a
default judgment under Rule 55(b)(1)). The procedural
requirements for grant of default judgment by the Court is
that the application be accompanied by an affidavit in
compliance with LCvR 55.1, which states “[n]o
application for a default judgment shall be entertained
absent an affidavit in compliance with the Servicemembers
Civil Relief Act, [50 U.S.C. § 3931].” To this
end, it is undisputed Defendant has failed to answer or
plead, default was entered by the Clerk, and Plaintiff has
satisfied the Court's procedural requirements.
See Mot. for Default Judgment at Ex. 1 [Doc. No.
entry of default, the Court takes all of the well-pleaded
facts in a complaint as true. See Tripodi v. Welch,
810 F.3d 761, 765 (10th Cir. 2016) (noting that after default
is entered, “a defendant admits to a complaint's
well-pleaded facts and forfeits his or her ability to contest
those facts.”) (citation omitted); United States v.
Craighead, 176 F. App'x 922, 924 (10th Cir. 2006)
(“The defendant, by his default, admits the
plaintiff's well-pleaded allegations of fact, is
concluded on those facts by the judgment, and is barred from
contesting on appeal the facts thus established.”)
(unpublished, citation omitted). However, the Court need not
accept the moving party's legal conclusions or factual
allegations relating to the amount of damages sought.
Therefore, before granting a default judgment, the Court must
first ascertain whether the uncontested facts constitute a
legitimate cause of action, since a party in default does not
admit mere conclusions of law. See, e.g., Mathiason v.
Aquinas Home Health Care, Inc., 187 F.Supp.3d 1269,
1274-75 (D. Kan. 2016) (“Even after default, it remains
for the court to consider whether the unchallenged facts
constitute a legitimate basis for the entry of a judgment
since a party in default does not admit conclusions of law.
Furthermore, a default judgment does not establish the amount
of damages. Plaintiff must establish that the amount
requested is reasonable under the circumstances.”)
(internal citations omitted); Gunawan v. Sake Sushi
Restaurant, 897 F.Supp.2d 76, 83 (E.D.N.Y. 2012)
(“[A] default does not establish conclusory
allegations, nor does it excuse any defects in the
plaintiff's pleading. Thus, with respect to liability, a
defendant's default does no more than concede the
complaint's factual allegations; it remains the
plaintiff's burden to demonstrate that those
uncontroverted allegations, without more, establish the
defendant's liability on each asserted cause of
action.”) (citations omitted).
[a] defendant does not contest the amount prayed for in the
complaint [by failing to answer] and the claim is for a sum
certain or a sum that can be made certain by computation, the
judgment generally will be entered for that amount without
any further hearing.” Craighead, 176 F.
App'x at 925 (citation omitted); H.B. Hunt v.
Inter-Globe Energy, Inc., 770 F.2d 145, 148 (10th Cir.
1985) (“[A] court may enter a default judgment without
a hearing only if the amount claimed is a liquidated sum or
one capable of mathematical calculation.”) (citing
Venable v. Haislip, 721 F.2d 297, 300 (10th Cir.
the well-pled allegations in the Complaint as true and for
the reasons stated below, the Court finds that the
allegations support entry of a default judgment. In order to
establish a prima facie case of copyright infringement, a
plaintiff must prove two elements: (1) ownership of a valid
copyright, and (2) copying of constituent elements of the
work that are original. Savant Homes, Inc. v.
Collins, 809 F.3d 1133, 1138 (10th Cir. 2016). The
plaintiff bears the burden of proof as to both elements.
La Resolana Architects, PA v. Reno, Inc., 555 F.3d
1171, 1171 (10th Cir. 2009). With respect to the first
element, “[a] plaintiff's presentation of a
certificate of registration from the U.S. Copyright Office
usually constitutes prima facie ...