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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

DALLAS BUYERS CLUB, LLC.,

Plaintiff,

v.

KLAYTON ANDERSON,

Defendant.

Case No. 3:15-cv-1042-AC (Lead)

 3:15-cv-1043-AC (Associated)

OPINION AND ORDER

Michael H. Simon, District Judge.

Plaintiff Dallas Buyers Club, LLC (“DBC”) brings this action against Defendant Klayton 

Anderson. DBC alleges that Defendant copied and distributed DBC’s motion picture Dallas 

Buyers Club (“DBC Movie”) through a public BitTorrent network in violation of DBC’s 

exclusive rights under the Copyright Act. Before the Court is DBC’s motion for entry of default 

judgment under Federal Rule of Civil Procedure 55(b). ECF 44. For the following reasons, the 

Court grants in part DBC’s motion, and will enter a default judgment against Defendant in the 

amount of $750, along with injunctive relief.

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 

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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”). 

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 

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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 June 11, 2015, DBC filed its complaint in these 

consolidated cases this case, identifying Defendant only by his IP addresses as a person who 

illegally downloaded the DBC Movie using the BitTorrent network. After the Court granted 

DBC’s motion to subpoena Defendant’s internet service provider, DBC identified Defendant as 

the subscriber associated with two infringing IP addresses. 

Plaintiff’s counsel mailed letters to Defendant addressing his alleged copyright and 

infringement but Defendant did not respond. Plaintiff attempted to serve Defendant with a 

subpoena under Federal Rule of Civil Procedure 45, but was unable to effectuate personal 

service. Accordingly, the Court permitted Plaintiff to serve Defendant with the Rule 45 subpoena 

via U.S. mail to Defendant’s last known address, with delivery confirmation. Defendant failed to 

show up for his scheduled deposition or otherwise respond to the Rule 45 subpoena.

On February 23, 2016, Plaintiff filed its Amended Complaint in these consolidated 

actions, naming Mr. Anderson as the defendant. Mr. Anderson was served with a summons and 

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the Amended Complaint via substitute service. Defendant did not respond to the Amended 

Complaint and on May 23, 2016, the Court entered an order of default against Defendant.

On June 30, 2016, Plaintiff filed its motion for default judgment. Plaintiff seeks statutory 

damages in the amount of at least $5,000. On July 5, 2016, the Court appointed pro bono counsel 

to assist Defendant in responding to Plaintiff’s motion. After seeking extensions of time to 

respond to the pro bono counsel appointment, on September 20, 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).

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 

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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,

Defendant has never expressly admitted to being the person who downloaded Plaintiff’s movies. 

Additionally, Defendant was not personally served with the Rule 45 subpoena or service of 

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

which service was mailed and left with an adult resident, 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 

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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 also seeks injunctive relief preventing Defendant from future infringing activity 

against the DBC Movie. 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 DBC’s rights, including without 

limitation by using the internet to reproduce or copy the DBC Movie, to distribute the DBC 

Movie, or to make the DBC Movie available for distribution to the public except pursuant to a 

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lawful license or with the express authority of DBC. The Court also orders Defendant to destroy 

all unauthorized copies of the DBC Movie.

CONCLUSION

Plaintiff’s motion for default judgment (ECF 44) is GRANTED IN PART. Defendant is 

ordered to (1) pay DBC statutory damages of $750; (2) cease all activities infringing on DBC’s

rights in the motion picture Dallas Buyers Club; and (3) destroy all unauthorized copies of 

Dallas Buyers Club in the possession of Defendant.

IT IS SO ORDERED.

DATED this 29th day of September, 2016.

/s/ Michael H. Simon

Michael H. Simon

United States District Judge

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