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ORDER RENOTING MOTION FOR

DEFAULT JUDGMENT

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF WASHINGTON

AT SEATTLE

____________________________________________ )

MOTOWN RECORD COMPANY, L.P., et al., )

) Case No. C06-0236RSL

Plaintiffs, ) 

v. )

) ORDER RENOTING MOTION

GRANT SONG, ) FOR DEFAULT JUDGMENT 

)

Defendant. )

____________________________________________ )

This matter comes before the Court on plaintiffs’ “Application for Entry of Default

Judgment by the Court” pursuant to Fed. R. Civ. P. 55 and Local Civil Rule 55(b)(2). Dkt. # 13. 

Upon entry of default, the well-pleaded allegations of the complaint relating to defendant’s

liability are taken as true, and the defaulting party is deemed to have admitted all allegations in

the complaint pertaining to liability (but not allegations as to the amount of damages). See

TeleVideo System, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987); Danning v. Lavine,

572 F.2d 1386, 1389 (9th Cir. 1978); Dundee Cement Co. v. Howard Pipe & Concrete Prods.,

Inc., 722 F.2d 1319, 1323 (7th Cir. 1983). In exercising its discretion to grant default judgment,

the Court may consider the following factors: (1) the possibility of prejudice to plaintiffs; (2) the

merits of plaintiffs’ substantive claims; (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

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1

 Certain recordings, such as Boyz II Men’s “It’s so Hard to Say Goodbye to Yesterday,” appear

on Exhibit B more than once.

ORDER RENOTING MOTION FOR

DEFAULT JUDGMENT -2-

Federal Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d

1470, 1471-72 (9th Cir. 1986). The Court has the discretion to consider plaintiffs to have met

their burden of proof by the admissions of liability which accompany entry of default against

defendant. However, “necessary facts not contained in the pleadings, and claims which are

legally insufficient, are not established by default.” Cripps v. Life Ins. Co., 980 F.2d 1261, 1267

(9th Cir. 1992). The Court has the power to require additional proof of any fact alleged in the

complaint “or to make an investigation of any other matter” necessary to establish liability or

damages. Fed. R. Civ. P. 55(b)(2). 

Having reviewed the complaint to determine if plaintiffs are entitled to the remedy

sought, the Court finds that additional proof is necessary. Plaintiffs seek a finding that

defendant committed six copyright violations by using an online media distribution system to

copy and distribute copyrighted sound recordings in violation of the Copyright Act, 17 U.S.C. §

101, et seq. Plaintiffs’ complaint does not contain any specific allegations regarding the number

of copies made or distributed by defendant. Paragraph 11 of the complaint asserts that plaintiffs

are the owners or licensees of the six copyrighted recordings identified in Exhibit A and of

“certain of the sound recordings listed on Exhibit B.” In paragraph 13, plaintiffs allege that

defendant has copied and distributed “Copyrighted Recordings,” defined to include the six

recordings identified in Exhibit A plus an undisclosed number of the approximately 1400

recordings listed in Exhibit B. There are no allegations regarding the number of recordings

copied or distributed by defendant. Nor have plaintiffs provided sufficient evidence from which

the Court could, with confidence, find the number of copyright violations. Although the six

copyrighted recordings identified in Exhibit A each appear on the list provided as Exhibit B,1

 the

latter document has not been authenticated (or even described), there is no obvious link between

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ORDER RENOTING MOTION FOR

DEFAULT JUDGMENT -3-

defendant and “defaultuser@KaZaA,” and the Court cannot simply presume that defendant

violated the Copyright Act six times. 

Plaintiffs shall, within 30 days of the date of this Order, submit additional proof to

support the requested finding regarding the number of copyright violations committed by

defendant. Failure to do so will result in the denial of the pending motion for default judgment. 

The Clerk of Court is directed to renote plaintiffs’ “Application for Entry of Default Judgment

by the Court” on the Court’s calendar for Friday, September 1, 2006. 

DATED this 25th day of July, 2006.

A

Robert S. Lasnik,

United States District Judge

Case 2:06-cv-00236-JCC-RSL Document 14 Filed 07/25/06 Page 3 of 3