UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

WESTERN DIVISION

BRIAN METHE,

Plaintiff,

vs.

AMAZON.COM.DEDC, LLC, et al.,

Defendants.

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Case No. 1:17-cv-749

Judge Timothy S. Black

ORDER DENYING PLAINTIFF BRIAN METHE’S MOTION 

FOR DEFAULT JUDGMENT AGAINST DEFENDANTS WEBINTELLICS, INC. 

AND RIPT APPAREL, LLC WITHOUT PREJUDICE (Doc. 36)

This case is before the Court on Plaintiff Brian Methe’s (“Plaintiff”) motion for 

default judgment against Defendants Webintellics, Inc. and RIPT Apparel, LLC

(collectively the “Defaulting Defendants”). (Doc. 36).

I. BACKGROUND

On November 7, 2017, Plaintiff filed suit against the Defaulting Defendants, as 

well as other defendants, for copyright infringement. (Doc. 1). Subsequently, Plaintiff 

served the Defaulting Defendants with a copy of the Complaint. (Docs. 30, 35, 36-1). 

Neither of the Defaulting Defendants timely answered. (See Doc. 36-1 at ¶¶ 2–4). On 

September 5, 2018, Plaintiff filed a motion for default judgment against the Defaulting 

Defendants. (Doc. 36). One day later, Plaintiff filed an application for entry of default. 

(Doc. 37). On September 10, 2018, the Clerk issued an entry of default, confirming that 

the Defaulting Defendants were “in default.” (Doc. 38).
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Plaintiff’s motion for default judgment consists of a single paragraph:

Pursuant to Fed. R. Civ. P. 55, [Plaintiff] moves the Court to 

enter the attached Default Judgments against [the Defaulting 

Defendants] for failure to plead or otherwise defend this case.

The claims asserted in this matter do not involve a sum certain, 

therefore Plaintiff further requests a hearing to determine the 

amount of damages owed by the defaulting parties. In support 

of this Motion, Plaintiff tenders the Affidavit of Counsel 

attached as Exhibit A.

(Doc. 36). The Affidavit of Counsel contains: (1) information about the Defaulting 

Defendants’ service, and (2) a request for an evidentiary hearing. (Doc. 36-1).

II. LEGAL STANDARD

Rule 55 governs Plaintiff’s motion for default judgment. Where, as here, a case 

does not involve a sum certain, Rule 55 sets out a two-step process. First, the Clerk must 

issue an entry of default under Rule 55(a). Second, the plaintiff must file a motion for a 

default judgment under Rule 55(b)(2). After the Clerk’s entry of default and the 

plaintiff’s motion for default judgment, the Court considers whether a default judgment is 

proper. When doing so, the Court takes all of the factual allegations in the complaint as 

true.1 Ohio Nat’l Life, Assurance Corp. v. Crescent Fin. & Ins. Agency, Inc., No. 1:15-

CV-727, 2016 WL 8199123, at *1 (S.D. Ohio June 20, 2016).

An entry of default does not automatically entitle the plaintiff to a default 

judgment. See F.C. Franchising Sys., Inc. v. Schweizer, No. 1:11-CV-740, 2012 WL 

 

1 More precisely, the Court takes all of the factual allegations relating to liability as true; factual 

allegations relating to damages are not entitled to the same presumption. PNC Equip. Fin., LLC 

v. MDM Golf, LLC, No. 1:14-CV-509, 2014 WL 5219582, at *1 (S.D. Ohio Oct. 14, 2014).
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1945068, at *3 (S.D. Ohio May 30, 2012). The plaintiff must still show that, when all of 

the factual allegations in the complaint are taken as true, the defendant is liable for the 

claim(s) asserted. Said v. SBS Elecs., Inc., No. 1:08-CV-3067, 2010 WL 1265186, at *2 

(E.D.N.Y. Feb. 24, 2010) (It “remains the plaintiff’s burden to demonstrate that” the 

complaint’s factual allegations, taken as true, “establish the defendant’s liability.”), 

adopted as modified, No. 1:08-CV-3067, 2010 WL 1287080 (E.D.N.Y. Mar. 31, 2010).

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When considering whether a default judgment is proper, courts:

[T]ake into account: (1) possible prejudice to the plaintiff; (2) 

the merits of the claims; (3) the sufficiency of the complaint; 

(4) the amount of money at stake; (5) possible disputed 

material facts; (6) whether the default was due to excusable 

neglect; and (7) the preference for decisions on the merits.

Russell v. City of Farmington Hills, 34 F. App’x 196, 198 (6th Cir. 2002).

III. ANALYSIS

In this case, Plaintiff seeks a default judgment on its copyright infringement claim 

against the Defaulting Defendants (Doc. 36). However, Plaintiff’s motion for default 

judgment does not (1) set out the legal standard applicable copyright infringement claims,

 

2

See United States v. Ponte, 246 F. Supp. 2d 74, 76 (D. Me. 2003) (“The legal effect of [an] 

entry of default is clear; [an] entry of default does not automatically entitle the plaintiff to the 

relief it seeks, but it does amount to an admission by the defendants of the material allegations of 

the complaint. . . . A plaintiff must nevertheless establish that on the law it is entitled to the 

relief it seeks, given the facts as established by the default.” (emphasis added)); see also 

Cummings v. W. Harlem Cmty. Org., Inc., No. 1:17-CV-4236, 2018 WL 3435058, at *2 

(E.D.N.Y. July 17, 2018) (same); OTO Software, Inc. v. Highwall Techs., LLC, No. 1:08-CV1897, 2011 WL 3236049, at *4 (D. Colo. July 5, 2011) (same), report and recommendation 

adopted, No. 1:08-CV-1897, 2011 WL 3235707 (D. Colo. July 27, 2011).
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or (2) show why the facts alleged in the Complaint meet that legal standard. (Id.)

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Instead, Plaintiff’s motion for default judgment assumes that a default judgment is 

proper, because the Defaulting Defendants have failed to timely answer (i.e., because 

there has been an entry of default). This is not the case. Ponte, 246 F. Supp. 2d at 76 

(An “entry of default does not automatically entitle the plaintiff to the relief it seeks.”).

A default judgment is a “harsh sanction.” Morais-Pierson v. Pierson, No. 3:15-

CV-609, 2015 WL 2365398, at *2 (N.D. Ohio May 15, 2015). It allows the plaintiff to 

obtain a judgment, absent the defendant’s presence, participation, or objection. It would 

not be proper to enter so harsh a sanction where, as here, Plaintiff has failed to show (or 

even tried to show) that, when all of the factual allegations in the Complaint are taken as 

true, the Defaulting Defendants are liable for copyright infringement. Said, 2010 WL 

1265186, at *2; see Russell, 34 F. App’x at 198 (noting that the complaint’s “sufficiency” 

and the claims’ “merits” should be considered before entering a default judgment).

IV. CONCLUSION

As a result, Plaintiff’s motion for default judgment (Doc. 36) is DENIED without 

prejudice. Plaintiff shall file an amended motion for default judgment, which 

 

3 A procedural issue warrants discussion. Plaintiff filed his motion for default judgment before

the Clerk issued its entry of default. (Docs. 36, 38). This is not proper. Ramada Franchise Sys., 

Inc. v. Baroda Enters., LLC, 220 F.R.D. 303, 305 (N.D. Ohio 2004) (An “entry of default is a 

prerequisite to a default judgment.” (emphasis added)). However, as Plaintiff’s motion fails 

from a substantive standpoint (as set forth infra), the Court does not reach the issue of whether 

Plaintiff’s motion is, in fact, a proper motion for default judgment.
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cures the issues described supra, within 30 days of the date of this Order.4

IT IS SO ORDERED.

Date: 7/15/2019

Timothy S. Black

United States District Judge

 

4

In the Affidavit of Counsel attached to Plaintiff’s motion for default judgment, Plaintiff claims 

that because “[t]his is a copyright infringement case,” a “hearing is required to determine the 

amount of damages.” (Doc. 36-1 at ¶ 5). This is not the standard. See Vesligaj v. Peterson, 331 

F. App’x 351, 354 (6th Cir. 2009) (Rule 55(b)(2) “allows but does not require the district court to 

conduct an evidentiary hearing” to ascertain an uncertain sum of damages.); Campinha-Bacote v. 

Ware, No. 1:14-CV-597, 2014 WL 6901746, at *1 (S.D. Ohio Dec. 5, 2014) (awarding damages, 

under the Copyright Act, on a motion for default judgment, after noting that an “evidentiary 

hearing is not required if the Court can determine the amount of damages by computation from 

the record before it”).