Diary of a Copyright Infringement Lawsuit – 5a (Default and Default Judgment)
After being served with the Complaint, the defendant is supposed to answer or otherwise respond to the complaint within a certain time, as discussed in my earlier blog entry. But sometimes the defendant doesn’t timely respond, either because of a mistake or trying to avoid the matter. So the case goes in a different direction than expected.
The first step is to file a motion to ask the court to enter the defendant’s default pursuant to Fed. R. Civ. P. 55(a). Your motion must include an affidavit stating something such as:
1. I am the attorney for the Plaintiff in this action.
2. A Complaint was filed in this matter on April x, 20xx, and service of process was had on Defendant xxxxxx xxxxxx on April x, 20xx.
3. More than twenty (20) days have elapsed since Defendant xxxxxxx was served in this action, and Defendant xxxxxx has failed to plead or otherwise defend as provided by the Federal Rules of Civil Procedure.
The court clerk then must enter the party’s default. The defaulting party is deemed to have admitted all of the well plead allegations of the complaint.
You next must get the court to award you damages. If your claim is for a sum certain or a sum that can be made certain by computation (such as when you are suing for breach of contract and the defendant failed to pay you your specified license fee), you may request that the clerk enter judgment for that amount, plus costs for filing the suit and any other court costs that you have incurred.
But for copyright infringement damages, the amount due to you usually is not certain. So you have to apply to the court for a default judgment. The court usually will conduct hearings or make referrals when, to enter or effectuate judgment, it needs to:
(A) conduct an accounting;
(B) determine the amount of damages;
(C) establish the truth of any allegation by evidence; or
(D) investigate any other matter.
In the end, the court should grant you an award for damages.
That’s what happened in one copyright infringement case by a photographer. The photographer filed suit but the defendant did not appear. After the photographer filed the appropriate motion, the court entered default.
The attorneys for the photographer then filed a Motion for Default Judgment, which included a Memorandum in Support of Motion for Default Judgment, a Declaration in Support of Plaintiff’s Motion for Default Judgment, and an Exhibit. Because the photographer could no longer afford to pay his attorneys, he subsequently represented himself at the court’s hearing on the damages. The photographer made an opening statement and gave his testimony. He submitted three exhibits and gave a closing argument. The court thereafter ordered that the defendants were permanently enjoined from any further use of plaintiff’s four images on defendants’ website and awarded the photographer $9,800, plus his reasonable attorney’s fees and costs incurred in the lawsuit.
But note that during this process the defendant can ask the court to set aside an entry of default for good cause and to set aside a default judgment under Rule 60(b). If that happens, then the case goes forward as if the defendant timely answered.Check Photo Attorney on Lynda.com, in the Lynda.com Article Center, and on Twitter!