The opinion of the court was delivered by: J. Phil Gilbert District Judge
This matter is before the Court on the Motion for Default Judgment and Permanent Injunction brought by Plaintiffs UMG Recordings, Inc., Arista Records, LLC, and Sony BMG Music Entertainment against Defendant Ronny Stewart (Doc. 14). For the following reasons the motion is GRANTED and judgment is entered as follows: (1) Plaintiffs are awarded statutory damages under 17 U.S.C. § 504(c)(1) in the total amount of $3,750; (2) Plaintiffs are awarded $420 in costs under 17 U.S.C. § 505; and (3) Plaintiffs are awarded permanent injunctive relief under 17 U.S.C. §§ 502 and 503.
Plaintiffs filed this action against Defendant on March 17, 2006, seeking damages and injunctive relief for willful copyright infringement under the copyright laws of the United States, 17 U.S.C. §§ 101 et seq. Plaintiffs allege they are the holders of copyrights or licenses in the following sound recordings: (1) "In the Mood," on album "In the Mood with Tyrone Davis," by artist "Tyrone Davis" (SR# 8-557); (2) "Burn Rubber (Why You Wanna Hurt Me?)," on album "The 12-Inch Collection," by artist "Gap Band" (SR# 70-785); (3) "Halfcrazy," on album "Juslisen," by artist "Musiq" (SR# 308-859); (4) "Nice and Slow," on album "My Way," by artist "Usher" (SR# 257-730); and (5) "Leave Me Alone," on album "Bad," by artist "Michael Jackson" (SR# 84-256) (hereinafter, "the Copyrighted Recordings"). See Complaint ("Compl.") ¶ 9 & Ex. A.
Plaintiffs allege that Defendant, without their permission and consent, has "used, and continues to use, an online media distribution system to download the Copyrighted Recordings, to distribute the Copyrighted Recordings to the public, and/or to make the Copyrighted Recordings available for distribution to others." Compl. ¶ 11. Plaintiffs allege that Defendant has infringed their exclusive rights of reproduction and distribution of the Copyrighted Recordings, in violation of the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq., and that Defendant's "acts of infringement have been willful and intentional, in disregard of and with indifference" to Plaintiffs' rights in the Copyrighted Recordings. Id. ¶ 12. In their complaint Plaintiffs seek: (1) actual or statutory damages at their election pursuant to 17 U.S.C. § 504; (2) costs pursuant to 17 U.S.C. § 505; and (3) injunctive relief pursuant to 17 U.S.C. §§ 502 and 503, prohibiting Defendant from further infringing Plaintiffs' rights in the Copyrighted Recordings and ordering Defendant to destroy all copies of the Copyrighted Recordings. See id. ¶¶ 13-14.
Although Defendant was properly served with Plaintiffs' complaint on June 15, 2006, he did not file an answer or otherwise respond to the complaint. On July 24, 2006, Plaintiffs filed a motion for entry of default, whereupon a default was entered by the Clerk of Court on July 25, 2006. Plaintiffs now have moved for entry of a default judgment against Defendant, requesting an award of statutory damages under 17 U.S.C. § 504(c)(1) in the total amount of $3,750, an award of costs under 17 U.S.C. § 505 in the total amount of $420, and permanent injunctive relief under 17 U.S.C. §§ 502 and 503. Having reviewed carefully Plaintiffs' submissions in support of their request for entry of a default judgment in this case, the Court now is prepared to rule.
A. Procedure for Obtaining Default Judgment
Obtaining a default judgment entails two steps. First, the party seeking a default judgment must file a motion for entry of default with the clerk of a district court by demonstrating that the opposing party has failed to answer or otherwise respond to the complaint, and, second, once the clerk has entered a default, the moving party may then seek entry of a default judgment against the defaulting party. See Fed. R. Civ. P. 55; Conn-Selmer, Inc. v. Apex Indus., Inc., No. 04C0245, 2006 WL 752895, at *1 (E.D. Wis. Mar. 20, 2006).
Cf. Keesh Constr., Inc. v. United States, No. 1:02-CV-899, 2004 WL 2536840, at *1 n.1 (S.D. Ohio Sept. 28, 2004). Rule 55 of the Federal Rules of Civil Procedure provides that the clerk may enter a judgment by default when the plaintiff's claim is for a sum certain or for a sum which can be computed with certainty and the defendant has been defaulted for failure to appear and is neither an infant nor incompetent. See Fed. R. Civ. P. 55(b)(1); Palladino v. General Crushed Stone Co., No. 96-CV-1355, 1997 WL 67792, at *1 (N.D.N.Y. Feb. 13, 1997). In all other cases, the party seeking a judgment by default must apply to the presiding district judge for entry of a default judgment. See Fed. R. Civ. P. 55(b)(2).
In this instance, Plaintiffs request entry of a judgment of default by the Court pursuant to Rule 55, which provides, in relevant part,
[T]he party entitled to a judgment by default shall apply to the court therefor; but no judgment by default shall be entered against an infant or incompetent person unless represented in the action by a general guardian, committee, conservator, or other such representative who has appeared therein. If the party against whom judgment by default is sought has appeared in the action, the party . . . shall be served with written notice of the application for judgment at least 3 days prior to the hearing on such application. If, in order to enable the court to enter judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper . . .
Fed. R. Civ. P. 55(b)(2). Thus, to procure a default judgment under Rule 55(b)(2), a party must establish the following: (1) when and against what party the default was entered; (2) identification of the pleading as to which default was entered; (3) whether the defaulting party is an infant or incompetent person; (4) that the defendant is not in military services such that the Soldiers' and Sailors' Civil Relief Act of 1940 does not apply; and (5) that notice has been served on the defaulting party, if required by Rule 55(b)(2). See Elektra Entertainment Group Inc. v. Crawford, 226 F.R.D. 388, 392 (C.D. Cal. 2005).
In this case, all of the requirements for entry of a default judgment under Rule 55(b)(2) are satisfied. The record discloses that, as discussed, a default was entered against Defendant on July 25, 2006. Plaintiffs' memorandum of points and authorities in support of their request for entry of a default judgment attaches a copy of the pleading as to which default was entered (Doc. 15, Ex. A). Both the memorandum and the uncontroverted affidavit of Alexis E. Payne, one of Plaintiffs' attorneys, state that Plaintiffs have no reason to believe Defendant is either an infant or incompetent and that, after searching public military or military locator databases, Plaintiffs have discovered no evidence that Defendant is serving in the military (Doc. 15 at 2 ¶ 4; id., Ex. B ¶ 5). Because Defendant has never entered an appearance in this action, the notice requirement of Rule 55(b)(2) does not apply. Therefore, the Court concludes that Plaintiffs have fully complied with the procedure for obtaining a judgment of default in this case. See Disney Enters. v. Farmer, 427 F. Supp. 2d 807, 815 ...