PAGE 1 – OPINION AND ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

COUNTRYMAN NEVADA, LLC.,

Plaintiff,

v.

PETER SUAREZ,

Defendant.

Case No. 6:15-cv-0436-SI

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Countryman Nevada, LLC (“Countryman”) brings this action against Defendant 

Peter Suarez. Countryman alleges that Defendant copied and distributed Countryman’s motion 

picture The Necessary Death of Charlie Countryman (“NDCC”) through a public BitTorrent 

network in violation of Countryman’s exclusive rights under the Copyright Act. Before the Court 

is Countryman’s amended motion for entry of default judgment under Federal Rule of Civil 

Procedure 55(b). ECF 38. For the following reasons, the Court grants in part Countryman’s 

motion, and will enter a default judgment against Defendant in the amount of $750, along with

injunctive relief.

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STANDARDS

Under Federal Rule of Civil Procedure 55(a), the Clerk of the Court is required to enter 

an order of default if a party against whom affirmative relief is sought fails timely to answer or 

otherwise defend an action. Fed. R. Civ. P. 55(a) (“When 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, the clerk must enter the party’s default.”). Upon the entry of default, the 

Court accepts “the well-pleaded factual allegations” of the complaint “as true.” DIRECTV, Inc. v. 

Hoa Huynh, 503 F.3d 847, 854 (9th Cir. 2007) (quoting Cripps v. Life Ins. Co. of N. Am., 980 

F.2d 1261, 1267 (9th Cir. 1992)); see also Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th 

Cir. 1977). The court, however, does not accept as admitted facts that are not well-pleaded,

conclusions of law, or facts relating to the amount of damages. DIRECTV, 503 F.3d at 854; 

Geddes, 559 F.2d at 560; see also Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 

(9th Cir. 2008) (“‘The general rule of law is that upon default the factual allegations of the 

complaint, except those relating to the amount of damages, will be taken as true.’” (quoting 

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

After default has been entered against a defendant, a court may enter a default judgment 

against that defendant. See Fed. R. Civ. P. 55(b). “The district court’s decision whether to enter a 

default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980); 

see also Dreith v. Nu Image, Inc., 648 F.3d 779, 786 (9th Cir. 2011) (noting that a district’s court 

decision whether to enter a default judgment is reviewed for abuse of discretion). In Eitel v. 

McCool, 782 F.2d 1470 (9th Cir. 1986), the Ninth Circuit set out factors to guide a district 

court’s consideration of whether to enter a default judgment. See DIRECTV , 503 F.3d at 852 

(noting that Eitel “set[] out factors to guide district court’s determination regarding the 

appropriateness of granting a default judgment”). 

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The Ninth Circuit in Eitel held:

Factors which may be considered by courts in exercising discretion 

as to the entry of a default judgment include: (1) the possibility of 

prejudice to the plaintiff, (2) the merits of plaintiff's substantive 

claim, (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 Federal Rules of 

Civil Procedure favoring decisions on the merits.

Eitel, 782 F.2d at 1471-72 (punctuation in original). The “starting point” of the court’s analysis, 

however, “is the general rule that default judgments are ordinarily disfavored.” Id. at 1472.

BACKGROUND

Beginning in 2014, counsel for Plaintiff has filed hundreds of cases in this District 

asserting that Doe defendants, originally identified only by their Internet Protocol (“IP”) 

addresses, violated the Copyright Act by downloading movies on the internet using a peer-topeer BitTorrent file sharing protocol. On March 17, 2015, Countryman filed its complaint in this 

case, identifying Defendant only by his IP address as a person who illegally downloaded NDCC

using the BitTorrent network. After the Court granted Countryman’s motion to subpoena 

Defendant’s internet service provider, Countryman identified Defendant as the subscriber 

associated with the infringing IP address. On April 2, 2015, Defendant telephoned Plaintiff’s 

counsel, identified himself as Peter Suarez, refused to provide a contact phone number or 

address, and indicated that his internet service provider may have been “hacked” or an overnight 

guest may have engaged in the infringing activity. After this telephone conversation, Defendant 

ceased all communications with Plaintiff’s counsel.

On June 18, 2015, Plaintiff filed an amended complaint, naming Peter Suarez as the 

defendant. Plaintiff was unable to personally serve Defendant, and on September 15, 2015, the 

Court permitted Plaintiff to serve Defendant via publication and first class mail to Defendant’s 

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last known address. On January 20, 2016, the Court entered an order of default against 

Defendant.

On February 18, 2016, Plaintiff filed a motion for default judgment. Plaintiff sought 

statutory damages in the amount of $7,500. The Court ordered Plaintiff to supplement its filing 

with further factual and legal information supporting higher statutory damages, particularly in 

light of the fact that judges in this District regularly award much lower statutory damages. On 

April 22 2016, Plaintiff filed the pending amended motion for default judgment, seeking 

statutory damages in the amount of $5,000.

After this case was filed, the District of Oregon issued Standing Order 2016-7, which 

notifies defendants in BitTorrent cases of their right to request pro bono counsel, and Standing 

order 2016-8, which requires attorneys for plaintiffs in these cases to forward Standing

Order 2016-7 to potential defendants. Because this requirement was not in place when Plaintiff 

filed its complaint against Defendant, on May 25, 2016, the Court ordered Plaintiff to provide 

Defendant with a copy of Standing Order 2016-7. On June 30, 2016, the Court appointed pro 

bono counsel to assist Defendant. On August 10, 2016, appointed pro bono counsel requested 

that the appointment be terminated because counsel was unable to contact Defendant.

DISCUSSION

To establish a claim of copyright infringement, a “plaintiff must show ownership of the 

copyright and copying by the defendant.” Fox Broad. Co. v. Dish Network L.L.C., 747 

F.3d 1060, 1066-67 (9th Cir. 2013) (quotation marks omitted). The factual allegations of 

Plaintiff’s Amended Complaint, which the Court accepts as true upon default, establish these 

elements. Accordingly, a judgment of default is appropriate in this case. See Glacier Films 

(USA), Inc. v. Tenorio, 2016 WL 3766465, at *2 (D. Or. June 22, 2016); Voltage Pictures, LLC 

v. Martinez, 2015 WL 4772856, at *2 (D. Or. Aug. 11, 2015).

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Under the Copyright Act, a plaintiff may elect an award of statutory damages “in a sum 

of not less than $750 or more than $30,000” per infringement, in lieu of an award representing 

actual damages. 17 U.S.C. § 504(c)(1). If a court finds the infringement to be willful, “the court 

in its discretion may increase the award of statutory damages to a sum of not more than 

$150,000.” 17 U.S.C. § 504(c)(2). The court has broad discretion in setting the amount of 

statutory damages. See Columbia Pictures Television, Inc. v. Krypton Broad. of Birmingham, 

Inc., 259 F.3d 1186, 1194 (9th Cir. 2001) (“If statutory damages are elected, the court has wide 

discretion in determining the amount of statutory damages to be awarded, constrained only by 

the specified maxima and minima.”) (quotation marks and alteration omitted).

Plaintiff concedes that the amount of economic damages suffered as a result of 

Defendant’s infringing activity is highly speculative and incalculable. Thus Plaintiff seeks only 

statutory damages. Plaintiff argues that Defendant’s conduct was willful and that because he has 

refused to participate in the legal process, statutory damages of $5,000 are warranted. The Court 

disagrees. 

The Court has awarded statutory damages of greater than $750 under certain 

circumstances, such as a when a defendant expressly admits to the infringing behavior, is 

personally served with the lawsuit yet refuses to participate in the lawsuit, and Plaintiff provides 

evidence of ongoing infringing conduct. See Automata Prods., Inc. v. Spicher, 2016 

WL 4621198 (D. Or. Sept. 6, 2016). Such facts are not present here. Although the Court deems 

the factual allegations of Plaintiff’s Amended Complaint true because of Defendant’s default, in 

the only conversation between Defendant and Plaintiff’s counsel, Defendant did not expressly 

admit to being the person who downloaded Plaintiff’s movies. To the contrary, Defendant 

verbally denied that claim. Additionally, Defendant was not personally served with service. 

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Although there is no evidence indicating that Defendant does not reside at the address to which 

service was mailed, the Court is reluctant to impose heightened statutory damages upon default 

when a defendant was not personally served. 

Further, the Court agrees with the reasoning of U.S. Magistrate Judge Stacie Beckerman 

in Glacier Films. In her opinion dated June 22, 2016, Judge Beckerman declined to award 

statutory damages of $2,500 and instead awarded the minimum statutory damages of $750. 

Glacier Films, 2016 WL 3766465, at *3. Judge Beckerman explained:

[C]ommon sense supports a conclusion that a $750 financial 

penalty for illegal downloading one movie is more than 

sufficiently punitive to deter others from illegally downloading 

free movies on the BitTorrent network. With knowledge that it will 

now cost $750 to watch a single movie on the BitTorrent network, 

consumers should be motivated instead to spend a few dollars to 

rent the same move legally. This Court believes that the problem is 

not with the magnitude of the damages awarded, but the fact that 

the general public does not appear to be aware of the dozens of 

BitTorrent copyright infringement actions filed by Plaintiffs’ 

counsel in this district alone. The Court declines Plaintiffs’ 

invitation to punish Defendant with a statutory damages award 

higher than $750 because he chose not to defend against this 

copyright infringement action. The Court is not aware of the 

reasons why Defendant chose not to appear and present a defense 

in this case, but notes that some individuals may choose to default 

merely due to the cost of federal court litigation, not for any 

nefarious reason that would support the award of enhanced 

statutory damages. In sum, Plaintiffs have failed to present 

evidence to demonstrate that the infringing conduct in this action 

differs from the several other actions in which judges in this 

district have awarded the minimum statutory damages.

Id. (citations and footnote omitted) (alteration in original). The considerations noted by Judge 

Beckerman apply in this case and the Court similarly declines to award greater than the 

minimum statutory damages in this case.

Plaintiff states in its motion for entry of default judgment that if the Court does not award 

damages of $5,000 or greater, then Plaintiff will seek to exercise its Seventh Amendment right to 

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a jury trial on damages. Plaintiff cites to Feltner v. Columbia Pictures, 523 U.S. 340 (1998), for 

the proposition that there is a Seventh Amendment right to a jury trial for statutory damages 

under the Copyright Act. This is correct, as far it goes. 

Feltner, however, did not involve a case in which the Court had granted a plaintiff’s 

motion for default. Plaintiff offers no legal authority for the proposition that the right to a jury 

trial on damages survives the entry of default. There is, however, substantial case law holding 

that there is no right to a jury trial for damages after an entry of default, including under the 

Copyright Act, and including precedent from the Ninth Circuit. See, e.g., Olcott v. Delaware 

Flood Co., 327 F.3d 1115, 1124 (10th Cir. 2003) (finding that a party bears no constitutional 

right to a jury trial following the entry of default); Sells v. Berry, 24 F. App’x. 568, 572 (7th 

Cir. 2001) (“In the case of a default, only 28 U.S.C. § 1874 may guarantee a right to a jury 

trial . . . .”); Graham v. Malone Freight Lines, 314 F.3d 7, 16 (1st Cir. 1999) (“Neither the 

Seventh Amendment nor the Federal Rules of Civil Procedure require a jury trial to assess 

damages after entry of default . . . .”); Matter of Dierschke, 975 F.2d 181, 185 (5th Cir. 1992)

(“It is also ‘clear . . . that in a default case neither the plaintiff nor the defendant has a 

constitutional right to a jury trial on the issue of damages.’” (citing 5 Moore’s Federal Practice 

§ 38.19[3] (1992)) (emphasis added)); Adriana Int'l Corp. v. Lewis & Co., 913 F.2d 1406, 1414 

(9th Cir. 1990) (holding in a copyright case that after default, “a party has no right to jury trial 

under either Fed. R. Civ. P. 55(b)(2), which authorizes a district court to hold an evidentiary 

hearing to determine the amount of damages, or the Seventh Amendment”); Henry v. 

Sneiders, 490 F.2d 315, 318 (9th Cir. 1974) (“[T]he Seventh Amendment right to trial by jury 

does not survive a default judgment.”); Ballard v. RCM Constr., Inc., 2015 WL 4392955, at *2 

(S.D. Ind. June 26, 2015), report and recommendation adopted, 2015 WL 4393522 (S.D. Ind. 

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July 15, 2015) (noting that after an entry of default, “[r]egardless of the nature of the asserted 

claims, neither a plaintiff nor a defaulted defendant has a constitutional, statutory, or rule-based 

right to a jury trial on the issue of damages”); Teri Woods Publ'g, L.L.C. v. Williams, 2013 WL 

6179182, at *4–5 (E.D. Pa. Nov. 25, 2013) (distinguishing Feltner because it did not involve a 

default and citing to “a broad, cross-section of courts” finding that the right to a jury trial does 

not survive default); Verizon California Inc. v. Onlinenic, Inc., 2009 WL 2706393, at *1–2 (N.D. 

Cal. Aug. 25, 2009) (distinguishing Feltner because it did not involve a default and noting that 

Rule 55(b)(2) presupposes that a default extinguishes the constitutional right to a jury trial and 

only preserves the right to a jury trial if that right is protected by federal statute, which has been 

interpreted as preserving the right only for cases brought under 28 U.S.C. § 1874 (citing 

numerous cases)); Hornsby v. Three Dollar Cafe, III, Inc., 2007 WL 2106304, at *5 (N.D. Ga. 

July 17, 2007) (“There is no right to a jury trial on damages following the entry of a default.”); 

Shepherd v. Am. Broad. Cos., Inc., 862 F. Supp. 486, 491 n.4 (D.D.C. 1994), vacated on other 

grounds, 62 F.3d 1469 (D.C. Cir. 1995) (“The parties are clearly not entitled to a jury trial on the 

damages question. The sole federal statute that entitles defaulted parties to a jury damages trial 

is 28 U.S.C. § 1874 . . . .”); Benz v. Skiba, Skiba & Glomski, 164 F.R.D. 115, 116 (D. Me. 1995)

(“Caselaw dating back to the eighteenth century . . . makes clear that the constitutional right to 

jury trial does not survive the entry of default.” (citing Brown v. Van Bramm, 3 Dall. [U.S.] 344, 

355 (1797))).

The Court follows these cases and finds that Plaintiff is not entitled to a jury trial on the 

issue of damages. Further, even if the right to a jury trial on damages did survive the entry of 

default, it would not be permissible under these circumstances. Plaintiff may not request that the 

Court resolve the question of damages with the caveat that if Plaintiff is not satisfied with the 

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Court’s award, Plaintiff will then demand a jury trial. Awarding damages in a default judgment 

is at the Court’s discretion, and Plaintiff cannot demand an award of any specific amount of 

damages. Nor can Plaintiff wait and see how much the Court will award in statutory damages 

and then demand a jury trial if Plaintiff is not satisfied by the amount awarded. As the Ninth 

Circuit has explained in a similar context, “A party cannot fairly be permitted to gain two 

chances at victory by waiting until after it is advised of the judge’s decision to decide whether to 

waive its right to a jury. . . . This unsupportable result is akin to allowing a gambler to switch his 

bet as the horses reach the home stretch.” Fuller v. City of Oakland, 47 F.3d 1522, 1532 (9th 

Cir. 1995). Accordingly, Plaintiff’s contingent request for a jury trial on damages if the Court 

awards below $5,000 in statutory damages is denied.

Plaintiff also seeks injunctive relief preventing Defendant from future infringing activity 

against Plaintiff’s motion picture NDCC. The Court agrees that this case merits injunctive relief 

under 17 U.S.C. §§ 502 and 503. Under these sections, the Court may “grant temporary and final 

injunctions on such terms as it may deem reasonable to prevent or restrain infringement of a 

copyright.” § 502(a). The Court may also “order the destruction or other reasonable disposition 

of all copies or phonorecords found to have been made or used in violation of the copyright 

owner’s exclusive rights.” § 503(b). Accordingly, the Court orders a permanent injunction 

enjoining Defendant from directly, indirectly, or contributorily infringing on Countryman’s

rights, including without limitation by using the internet to reproduce or copy Countryman’s

motion picture NDCC, to distribute NDCC, or to make NDCC available for distribution to the 

public except pursuant to a lawful license or with the express authority of Countryman. The 

Court also orders Defendant to destroy all unauthorized copies of NDCC.

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CONCLUSION

Plaintiff’s amended motion for default judgment (ECF 38) is GRANTED IN PART. 

Defendant is ordered to (1) pay Countryman statutory damages of $750; (2) cease all activities 

infringing on Countryman’s rights in the motion picture NDCC; and (3) destroy all unauthorized 

copies of NDCC in the possession of Defendant.

IT IS SO ORDERED.

DATED this 22nd day of September, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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