“[S]tatutory damages are appropriate in default judgment cases because the information needed to prove actual damages is within the infringers' control and is not disclosed.”
How later courts described this case
- “[S]tatutory damages are appropriate in default judgment cases because the information needed to prove actual damages is within the infringers' control and is not disclosed.”
- “The language of § 504(c) does not grant a right to have a jury assess statutory damages.”
- “Although usually awarded upon the plaintiff's request, a court may exercise its discretion to award statutory damages even if the plaintiff does not specifically request such an award.”
- “[s]tatutory damages [are] particularly appropriate in a case, such as this one, in which defendant has failed to mount any defense or to participate in discovery, thereby increasing the difficulty of ascertaining plaintiff's actual damages.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
ASHEVILLE DIVISION
CIVIL CASE NO. 1:19-cv-00240-MR
DAVID OPPENHEIMER, )
)
Plaintiff, )
)
vs. ) O R D E R
)
)
JOSEPH RILEY JOHNSON, )
HIGHLANDS AT CULLOWHEE, LLC, )
and JOMCO, INC., )
)
Defendants. )
________________________________ )
THIS MATTER is before the Court on the Plaintiff’s “Response to
Court’s April 3, 2020 Order [Doc. 14] and Request to Set Jury Trial to
Determine Damages.” [Doc. 15].
The Plaintiff David Oppenheimer (the “Plaintiff”) initiated this action
against the Defendants Joseph Riley Johnson, Highlands at Cullowhee,
LLC, and JOMCO, Inc. (the “Defendants”) on August 13, 2019. [Doc. 1].
The Plaintiff’s complaint included a demand for a jury trial on the Plaintiff’s
claims for copyright infringement under the Copyright Act and violations of
the Digital Millennium Copyright Act (“DMCA”). [Doc. 1].
In October 2019, the Plaintiff filed affidavits of service indicating that
the Defendants had been served. [Docs. 7, 8, 9]. The Defendants, however,
did not make an appearance or otherwise defend the action. On December
5, 2019, the Plaintiff filed a Motion for Entry of Default against the
Defendants. [Doc. 11]. On December 10, 2019, the Clerk made an entry of
default against the Defendants. [Doc. 13].
On April 3, 2020, the Court entered an Order instructing the Plaintiff to
file an appropriate motion or otherwise take further action with respect to the
Defendants. [Doc. 14]. On April 15. 2020, the Plaintiff filed the present
“Response to Court’s April 3, 2020 Order [Doc. 14] and Request to Set Jury
Trial to Determine Damages.” [Doc. 15]. In that filing, the Plaintiff requests
a jury trial for the purposes of setting the amount of damages to be awarded.
[Id. at 3]. According to the Plaintiff, “the task of determining statutory
damages is better suited to the opinions of multiple individuals who will likely
bring different perspectives, opinions, and insights about the variables to be
considered.” [Id.].
To begin, the Plaintiff is not entitled to a jury trial based on the present
record because there currently is no issue for a jury to decide. The Plaintiff’s
request for a jury trial is limited to the issue of damages. [Doc. 15 at 3]; see
Fed. R. Civ. P. 38(c) (“In its demand, a party may specify the issues that it
wishes to have tried by a jury.”); Bavelis v. Doukas, No. 2:17-CV-0327, 2019
WL 101916, at *7 (S.D. Ohio Jan. 4, 2019) (stating that after a default
judgment has been entered, damages are the lone issue remaining for “a
jury trial because liability has already been determined.”). In order to hold a
trial on the Plaintiff’s damages, however, the Court must first determine that
the Defendants are liable to the Plaintiff on the claims presented. That has
not yet occurred. The Plaintiff has not yet even moved for a default
judgment. As such, the Plaintiff’s request for a jury trial [Doc. 15] will be
denied as premature.
In anticipation of the Plaintiff filing a motion for default judgment, the
Court will note that the Plaintiff’s entitlement to a jury on the issue of
damages is questionable. A prevailing plaintiff in a copyright infringement
case may elect to recover either actual or statutory damages under the
Copyright Act. See 17 U.S.C. § 504(b) (A plaintiff can “recover the actual
damages suffered by him or her as a result of the infringement, and any
profits of the infringer that are attributable to the infringement and are not
taken into account in computing the actual damages.”); 17 U.S.C. § 504(c)(1)
(A plaintiff “may elect, at any time before final judgment is rendered, to
recover, instead of actual damages and profits, an award of statutory
damages for all infringements . . . with respect to any one work . . . in a sum
of not less than $750 or more than $30,000.”). According to the Plaintiff’s
motion, he elects statutory damages rather than actual damages. [Doc. 15
at 3 (stating that “a jury would provide the best means of assessing an award
of statutory damages . . .”)]. The Plaintiff makes clear in his Complaint [Doc.
1] and in his Request to Set Jury Trial [Doc. 15] that he seeks a jury trial only
as to the award of statutory damages. [Doc. 1 at 13, Doc. 15 at 3]. A plaintiff,
however, has no right to a jury trial on the issue of statutory damages.
Feltner v. Columbia Pictures Television, Inc., 523 U.S. 340, 346 (1998) (“The
language of § 504(c) does not grant a right to have a jury assess statutory
damages.”). As such, the Plaintiff has no statutory right to a jury trial
regarding the damages he seeks in this copyright infringement claim under
§ 504 the Copyright Act.
As to a statutory jury right for DMCA damages, the Court notes that the
DMCA likewise has no provision granting a right to a jury trial on the issue of
damages. The Plaintiff cites no authority allowing such. Therefore, Plaintiff
is not entitled to a jury trial on that claim.1
1 The Court also notes that it is questionable whether a jury is available to award damages
in Federal Court (unlike the North Carolina courts) for any default judgment. Under Rule
38(a), a plaintiff has a right to a jury trial if one is granted by the Seventh Amendment to
the Constitution or a federal statute. Fed. R. Civ. P. 38(a). As to the Plaintiff’s
constitutional right to a jury trial, “the overwhelming weight of authority instructs that the
Seventh Amendment does not guarantee a jury trial after default.” Armeni v. Transunion
LLC, Inc., No. 3:15-CV-00066, 2016 WL 7046839, at *2 (W.D. Va. Dec. 2, 2016) (citation
omitted). Cf., Bavelis, 2019 WL 101916 at *7. As such, it is unclear whether the Plaintiff
For these reasons, the Court questions whether the Plaintiff will be able
to ultimately show that he is entitled to a jury trial on his damages. See Fed.
R. Civ. P. 38(a).2
has a right to a jury trial under the Seventh Amendment and under Rule 38(a) in this case
for this reason as well.
2 Even though it is clear that the Plaintiff has elected statutory damages in lieu of actual
damages, had the Plaintiff requested actual damages, the Court questions the Plaintiff’s
ability to proceed with such a claim herein. Ordinarily, statutory damages are more
appropriate than actual damages where a defendant has defaulted. See Microsoft Corp.
v. McGee, 490 F.Supp.2d 874, 882 (S.D.Ohio 2007) (“[S]tatutory damages are
appropriate in default judgment cases because the information needed to prove actual
damages is within the infringers' control and is not disclosed.”); Jackson v. Sturkie, 255
F. Supp. 2d 1096, 1101-02 (N.D. Cal. 2003) (“[s]tatutory damages [are] particularly
appropriate in a case, such as this one, in which defendant has failed to mount any
defense or to participate in discovery, thereby increasing the difficulty of ascertaining
plaintiff's actual damages.”); Cate Brown Photography v. David-Jacobs Publ'g Grp., LLC,
No. 8:19-CV-447-T-02CPT, 2019 WL 4039986, at *2 (M.D. Fla. Aug. 27, 2019) (statutory
damages are “especially appropriate in default judgment cases because the information
needed to prove actual damages is uniquely within the infringers’ control and is not
disclosed.”). As the Plaintiff himself recognized when he filed his complaint, his actual
damages were in an amount “not yet ascertained, but which discovery will illuminate.”
[Doc. 1 at ¶ 41]. Given that there has been no discovery in this case, the Court questions
how the Plaintiff would prove his actual damages if he had elected such damages.
Moreover, it is unclear if a Court is compelled to award actual damages instead of
statutory damages upon a plaintiff’s request if it finds that an award of statutory damages
is more appropriate. Wondie v. Mekuria, 742 F. Supp. 2d 118, 125 (D.D.C. 2010)
(“Although usually awarded upon the plaintiff's request, a court may exercise its discretion
to award statutory damages even if the plaintiff does not specifically request such an
award.”) (citation omitted). For instance, courts can award statutory damages instead of
actual damages where “the inadequacy of proof as to both profits and damages . . .
show[s] . . . a case for the exercise of a proper judicial discretion in fixing statutory
damages.” Dan Kasoff, Inc. v. Palmer Jewelry Mfg. Co., 171 F.Supp. 603, 607
(S.D.N.Y.1959).
IT IS THEREFORE ORDERED that Plaintiffs Request to Set Jury Trial
to Determine Damages [Doc. 15] is DENIED as premature, but this is without
prejudice to Plaintiff bringing such a request in a motion for default judgment.
Signed: April 21, 2020
a Reidinger □ ve
United States District Judge oes