# Oppenheimer v. Johnson

> District Court, W.D. North Carolina · July 23, 2020

URL: https://www.frixlaw.com/law-library/cases/10256038

## Case

- **Court:** District Court, W.D. North Carolina
- **Decided:** July 23, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10256038

## How later opinions describe it (automated extraction)

- finding that defendants posted the protected material “on the internet on three separate occasions, and therefore committed three violative acts.”

## Opinion text

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. ) MEMORANDUM OF
) DECISION AND ORDER
)
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 June 4, 2020 Order [Doc. 18] and the Plaintiff’s Motion for Entry of
Default Judgment on Liability and Request for Jury Trial on Damages. [Doc.
19].
I. BACKGROUND
On August 13, 2019, the Plaintiff David Oppenheimer (the “Plaintiff”)
initiated this action against the Defendants Joseph Riley Johnson, Highlands
at Cullowhee, LLC, and JOMCO, Inc. (the “Defendants”). [Doc. 1]. The
Plaintiff’s Complaint asserted claims against the Defendants for non-willful
copyright infringement, willful copyright infringement, vicarious copyright
infringement, contributory copyright infringement, and violations of the Digital
Millennium Copyright Act (“DMCA”). [Doc. 1 at ¶¶ 18-40]. The Plaintiff’s

Complaint included a demand “for a jury trial on all issues.” [Id. at 14].
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 entered a 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 a “Response to

Court’s April 3, 2020 Order [Doc. 14] and Request to Set Jury Trial to
Determine Damages” requesting a jury trial for the purposes of setting the
damages to be awarded. [Doc. 15 at 3].
On April 21, 2020, the Court entered an Order denying the Plaintiff’s

request for a jury trial regarding damages as premature because there had
not yet been a determination of the Defendants’ liability. [Doc. 16]. In that
Order, the Court noted that it was questionable whether the Plaintiff was

entitled to a jury trial regarding his damages at all. [Doc. 16 at 3-5].
On June 4, 2020, the Court entered an Order instructing the Plaintiff to
show cause why this action should not be dismissed due to his failure to

prosecute. [Doc. 17]. On June 12, 2020, the Plaintiff filed a Response to
that Order asking this Court to “retain this case on its docket, enter default
judgment in favor of Oppenheimer on Defendants’ liability, and then to set

this case for trial by jury to assess damages.” [Doc. 18 at 1]. On June 19,
2020, the Plaintiff filed a Motion for Entry of Default Judgment on Liability
and Request for Jury Trial on Damages. [Doc. 19].
II. STANDARD OF REVIEW

“To obtain a default judgment, a party must first seek an entry of default
under Federal Rule of Civil Procedure 55(a).” Hayhurst v. Liberty Int'l
Underwriters, No. 5:08-cv-5347, 2009 U.S. Dist. LEXIS 5347, at *2 (N.D.W.

Va. Jan. 29, 2009); see Eagle Fire, Inc. v. Eagle Integrated Controls, Inc.,
No. 3:06-cv-264, 2006 WL 1720681, at *14 (E.D. Va. June 20, 2006) (“The
entry of default is a procedural prerequisite to the entry of a default
judgment.”). Rule 55(a) states that the clerk must enter default “[w]hen 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.”
Fed. R. Civ. P. 55(a). After the clerk enters default, the party may seek a

default judgment under Rule 55(b)(1) or (2), depending on the nature of the
relief sought. Rule 55(b) “authorizes the entry of a default judgment when a
defendant fails ‘to plead or otherwise defend’ in accordance with the Rules.”

United States v. Moradi, 673 F.2d 725, 727 (4th Cir. 1982). By such a
default, a defendant admits the well-pleaded factual allegations in the
plaintiff’s complaint. Ryan v. Homecomings Fin. Network, 253 F.3d 778, 780

(4th Cir. 2001).
III. PLAINTIFF’S FACTUAL ALLEGATIONS
The well-pleaded factual allegations of the Plaintiff’s Complaint are
deemed admitted by virtue of the Defendants’ default. Id. The following is a

summary of the relevant and admitted facts.
The Plaintiff is a citizen of North Carolina engaged in the professional
photography business. [Doc. 1 at ¶ 3]. The Plaintiff captured the photograph

at issue in this matter (the “Work”) and registered it with the Register of
Copyrights at the U.S. Copyright Office. [Id. at ¶ 9; Doc. 1-2]. The Work
consists of an aerial photograph of Western Carolina University. [Doc. 1-1].
The Plaintiff is the sole owner and proprietor of all right, title, and interest in

and to the copyrights of the Work. [Doc. 1 at ¶ 10].
The Plaintiff makes his photographs available online for print and
licensing through his website. [Id. at ¶ 8]. The Plaintiff’s custom and

business practice is to display his copyright management information (“CMI”)
on his copyrighted photographs when they are first published to the website.
[Id. at ¶ 11]. The Work displayed the Plaintiff’s CMI when it was first

published on his website. [Id.].
The Defendants are citizens of Georgia. [Id. at ¶¶ 4-6]. Defendant
Joseph Riley Johnson is the owner, officer, manager, director, and/or other

principal of Highlands at Cullowhee, LLC, a Georgia limited liability company
that operates an apartment property in Cullowhee, North Carolina. [Id. at ¶¶
4-5]. Defendant JOMCO, Inc. is a Georgia corporation that developed,
constructed, and managed that apartment property and created and

managed the website www.highlandsatcullowhee.com to advertise it. [Id. at
¶ 6]. The Defendants uploaded and published the Work to two URLs
associated with that website.1 [Id. at ¶¶ 11, 13]. The Defendants, or

someone on their behalf, removed the Plaintiff’s CMI and copyright notice
from the copies of the Work before displaying them. [Id. at ¶ 24].
IV. DISCUSSION
A. Jurisdiction

District courts have “original jurisdiction of any civil action arising under
any Act of Congress relating to patents, plant variety protection, copyrights,

1 The Work was posted at http://www.highlandsatcullowhee.com/cullowhee.html and
http://www.highlandsatcullowhee.com/11.jpg.
and trademarks.” 28 U.S.C. § 1338(a); see also 28 U.S.C. § 1331.
Accordingly, this Court has subject-matter jurisdiction over the above-

captioned civil action because it involves a federal question. [Doc. 1 at ¶ 1].
The Court must also have personal jurisdiction over the Defendants as
required to render a valid default judgment. For the Court to have personal

jurisdiction, the Plaintiff must prove, by a preponderance of the evidence,
that exercising jurisdiction will (1) comply with the forum state's long-arm
statute and (2) comport with the due process requirements of the Fourteenth
Amendment. See Carefirst of Maryland, Inc. v. Carefirst Pregnancy Centers,

Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). Because North
Carolina's long-arm statute has been construed to extend as far as due
process allows, Christian Sci. Bd. of Directors of First Church of Christ,

Scientist v. Nolan, 259 F.3d 209, 215 (4th Cir. 2001), this two-pronged test
is collapsed into the single inquiry of whether the exercise of personal
jurisdiction over the defendant comports with due process. Universal
Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 559 (4th Cir. 2014).

The Plaintiff’s Complaint contains jurisdictional facts sufficient to
support the exercise of personal jurisdiction by setting forth that (1) the
Defendants have done business within North Carolina [Doc. 1 at ¶¶ 4-6]; (2)

the Defendants own or manage property in North Carolina [id.]; and (3) the
subject of the Defendants’ infringement depicts scenes within this forum and
attempts to drive business towards this forum. [Doc. 1-1]. Given those

contacts with this forum, the Defendants should have reasonably anticipated
being haled into court here, particularly with respect to their North Carolina
property and any activities attendant thereto.

The Plaintiff has also complied with his obligations to effectuate service
of process by serving each the Defendants with a summons and a copy of
the Complaint pursuant to Federal Rule of Civil Procedure 4. [Doc. 7; Doc.
8; Doc. 9]. Finally, venue is proper under 28 U.S.C. § 1391(b) and (c).

Accordingly, this Court has jurisdiction over this matter.
B. Direct Copyright Infringement
In Count I and II of the Complaint, the Plaintiff asserts claims against

the Defendants for non-willful copyright infringement and willful copyright
infringement. [Doc. 1 at ¶¶ 18-25]. While the Plaintiff presents separate
claims for non-willful copyright infringement and willful copyright
infringement, those claims are separate only to the extent that willful

copyright infringement allows an increased award of statutory damages.
See 17 U.S.C. § 504.
“Copyright infringement occurs when a person ‘violates any of the

exclusive rights of the copyright owner.’ 17 U.S.C. § 501(a). Therefore, the
two elements of an infringement claim are (1) ownership of a valid copyright
and (2) encroachment upon one of the exclusive rights afforded by the

copyright.” Elektra Entertainment Group, Inc. v. Doe, No. 5:08-cv-1159-FL,
2008 WL 5111886 (E.D.N.C. Dec. 4, 2008) (citing Avtec Systems, Inc. v.
Peiffer, 21 F.3d 568, 571 (4th Cir. 1994)). “A certificate of registration issued

by the Copyright Office is ‘prima facie evidence of the validity of the copyright
and of the facts stated in the certificate,’ such as ownership.” Universal
Furniture Int'l, Inc. v. Collezione Europa USA, Inc., 618 F.3d 417, 428 (4th
Cir. 2010), as amended (Aug. 24, 2010) (citing 17 U.S.C. § 410(c)).

The Plaintiff registered the Work pursuant to 17 U.S.C. § 411(a) and
was given a Certificate of Registration reflecting his copyright in the Work as
of November 21, 2013. [Doc. 1-2]. As such the Plaintiff has demonstrated

that he owns a valid copyright to the Work. The Plaintiff has also established
that the Defendants copied the Work and uploaded it to two webpages
without authorization despite its copyright protection. [Doc. 1 at ¶¶ 11-14,
15, 19, 24, 28, 32]. Accordingly, the Plaintiff has pled sufficient factual

allegations, which are deemed admitted by the Defendants’ default, to
establish that the Defendants encroached on the copyright and are liable for
copyright infringement.2

With regard to whether the Defendants’ infringement was willful, “[t]he
standard for willfulness is whether the defendant knew that his conduct
represented infringement or recklessly disregarded that possibility.” EMI

Apr. Music Inc. v. Rodriguez, 691 F. Supp. 2d 632, 636 (M.D.N.C. 2010)
(citing Hamil Am., Inc. v. GFI, 193 F.3d 92, 97 (2d Cir. 1999)). The Plaintiff’s
allegations state that the Defendants removed the Plaintiff’s CMI and
copyright notice from the face of the Work before uploading it to their site.

[Doc. 1 at ¶ 24]. As such, the Defendants had knowledge that the Work was
copyrighted and either knew or recklessly disregarded the fact that copying
the Work and uploading it could constitute copyright infringement.

Accordingly, the Plaintiff’s allegations, deemed admitted by the Defendants’
default, establish that the infringement here was willful.
C. DMCA Violations
The DMCA prohibits a person, “without the authority of the copyright

owner or the law,” either to “intentionally remove or alter any copyright

2 Having found that the Defendants are liable for direct copyright infringement, the Court
need not address the Plaintiff’s claims against Defendant Johnson for contributory
copyright infringement or vicarious copyright infringement. See Metro-Goldwyn-Mayer
Studios Inc. v. Grokster, Ltd., 545 U.S. 913, 931 (2005).
management information” 17 U.S.C. § 1202(b)(1), or to “distribute” work
“knowing that copyright management information has been removed or

altered,” id. § 1202(b)(3). The DMCA requires that the action be taken by a
person “knowing or . . . having reasonable grounds to know that it will induce,
enable, facilitate, or conceal an infringement.” Id. § 1202(b).

Taking the allegations in the Plaintiff’s Complaint, along with the
evidence set forth in the Plaintiff’s declaration submitted in support of this
Motion for Default Judgment, the Court finds that the Plaintiff has established
that the Defendants posted the Work on two different webpages with the CMI

removed, without authorization. [Doc. 1 at ¶ 13]. The Court also finds that
the Defendants distributed the Work while knowing or having reasonable
grounds to know that the Plaintiff’s CMI had been removed or omitted without

authorization and that the action would induce, enable, facilitate, and/or
conceal an infringement of the Plaintiff’s copyrights. [Id. at ¶ 38]. As such,
the Plaintiff’s allegations, deemed admitted by the Defendants’ default,
establish that the Defendants violated the DMCA here. The Court further

finds that the Defendants’ conduct constitutes two separate violations of the
DMCA because it involved uploading the Work to two separate webpages.
Stockwire Research Grp., Inc. v. Lebed, 577 F. Supp. 2d 1262, 1266 (S.D.

Fla. 2008) (finding that defendants posted the protected material “on the
internet on three separate occasions, and therefore committed three violative
acts.”); Granger v. One Call Lender Servs., LLC, 2012 WL 3065271, at *5,

(E.D. Pa. July 26, 2012) (finding that the defendants “posted the infringing
product onto the internet on six separate occasions . . . thereby committing
six violative acts.”).

Because the Court concludes that the Defendants are liable for willful
copyright infringement and two violations of the DMCA, the Court will grant
the Plaintiff’s Motion for Default Judgment as to the Defendants’ liability on
those claims.

D. Plaintiff’s Request for a Jury Trial on Damages
Having decided the question of liability, the Court now must turn to the
question of damages and the Plaintiff’s request for a jury trial on that issue.

[Doc. 20 at 16].
Under Rule 38(a), a plaintiff has a right to a jury trial if one is granted
by a federal statute or the Seventh Amendment. Fed. R. Civ. P. 38(a). 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) (stating that 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) (stating that 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.”). While plaintiffs have a right to a jury trial when

seeking actual damages under 504(b), “[t]he language of § 504(c) does not
grant a right to have a jury assess statutory damages.” Feltner v. Columbia
Pictures Television, Inc., 523 U.S. 340, 346 (1998).
The Plaintiff makes clear that he seeks statutory damages here. [Doc.

20 at 16 (stating that the Plaintiff seeks “damages in the form of statutory
damages.”)]. Indeed, the Plaintiff’s Complaint [Doc. 1 at 13], and Request to
Set Jury Trial [Doc. 15 at 3], confirm that he wants a jury trial only as to the

award of statutory damages. The Copyright Act, however, provides no
statutory right to a jury trial on the issue of statutory damages. Feltner, 523
U.S. at 346 (“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 under § 504 of the Copyright Act.
Likewise, the DMCA has no provision that grants a right to a jury trial
on the issue of damages. As such, the Plaintiff has no statutory right to a

jury trial as to the damages he seeks under the DMCA. Accordingly, the
Court concludes that the Plaintiff has no statutory right to a jury trial on the
damages he seeks here.

The Court turns next to whether the Plaintiff has a constitutional right
to a jury trial. Under Federal Rule of Civil Procedure 55(b)(2), “the court may
conduct hearings or make referrals—preserving any federal statutory right to

a jury trial—when, to enter or effectuate judgment, it needs to . . . determine
the amount of damages. . . .” (emphasis added). As such, Rule 55
“presupposes that a default judgment extinguishes the constitutional right to
a jury trial.” Frankart Distributors, Inc. v. Levitz, 796 F. Supp. 75, 76

(E.D.N.Y. 1992). “[T]he 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). Indeed, “[c]ase law dating back to the
eighteenth century . . . makes clear that the constitutional right to [a] jury trial
does not survive the entry of default.” Benz v. Skiba, Skiba & Glomski, 164
F.R.D. 115, 116 (D. Me. 1995) (citing Brown v. Ban Braam, 3 U.S. 344, 3

Dall 344, 1 L.Ed. 629 (1797)); see, e.g., Olcott v. Del. Flood Co., 327 F.3d
1115, 1124 (10th Cir. 2003); Sells v. Berry, 24 F. App'x 568, 571 (7th Cir.
2001); Graham v. Malone Freight Lines, Inc., 314 F.3d 7, 16 (1st Cir. 1999);

In re Dierschke, 975 F.2d 181, 185 (5th Cir. 1992); Henry v. Sneiders, 490
F.2d 315, 318 (9th Cir. 1974).3 Notably, courts have denied jury trial requests
in Copyright Act cases following a default. Verizon California Inc. v.

Onlinenic, Inc., No. C 08-2832 JF (RS), 2009 WL 2706393, at *2 (N.D. Cal.
Aug. 25, 2009); Adriana Int'l Corp. v. Thoeren, 913 F.2d 1406, 1414 (9th Cir.
1990): Manno v. Tenn. Production Ctr., Inc., 657 F.Supp.2d 425, 429

(S.D.N.Y. 2009); CountrymAn Nevada, LLC. v. Suarez, No. 6:15-CV-0436-
SI, 2016 WL 5329597, at *4 (D. Or. Sept. 22, 2016); Teri Woods Publ'g,
L.L.C. v. Williams, No. CIV.A. 12-4854, 2013 WL 6179182, at *4 (E.D. Pa.
Nov. 25, 2013).

While the Plaintiff cites some cases where district courts have
questioned whether a constitutional right to a jury trial survives an entry of
default and thus granted a jury, those cases appear to represent the minority

view. None of those courts, however, have held that the that the jury right
actually survives; the jury was granted as an exercise of discretion. Those
cases certainly do not constitute controlling precedent herein. The Plaintiff
has cited to no cases at the Circuit Court or District Court level that have held

that the jury right survives default. Notably, however, this Court has
previously held that parties have no constitutional right to a jury trial after a

3 The constitutional right to a jury trial does not survive default even when the jury demand
was made by the non-defaulting party. Mwani v. Bin Ladin, 244 F.R.D. 20, 23-24 (D.D.C.
2007); Patray v. Nw. Pub., Inc., 931 F. Supp. 865, 870 (S.D. Ga. 1996).
default. Parlier v. Casteen, No. 5:14-CV-00085-RLV-DCK, 2016 WL
3032692, at *2 n.2 (W.D.N.C. May 26, 2016) (Voorhees, J.). Moreover, the

Court finds the majority approach is more consistent with long-standing
precedent. As such, the Court concludes that the Plaintiff has no
constitutional right to a jury trial on his damages claim because a default has

been entered in this case.
Notwithstanding the fact that the Plaintiff has no constitutional or
statutory right to a jury trial here, he argues that the Court would be within its
discretion to impanel a jury to assess his damages. [Doc. 20 at 19]. The

Plaintiff contends that “fairness dictates” that result because the Plaintiff
would have a constitutional right to have a jury assess his statutory damages
under the Copyright Act if the Defendants had not defaulted. [Id. at 19-21].

The Plaintiff also argues that a jury would provide the best means for
assessing damages here. [Id.]. Juries, however, are well suited to determine
the facts where advocates for both sides ably present their opposing
contentions. When only one side is presented, the underlying function of the

jury (in civil cases) is largely absent. Therefore, the Court is better suited to
determine what damages have been proven where there has been a default.
The Plaintiff has cited no authorities that have concluded otherwise.
Another reason the Court is in a better position than a jury to assess
the damages in this case is that it is particularly familiar with the issues

presented in these copyright infringement actions. “[T]he Plaintiff has filed
several other copyright infringement lawsuits in this District within the last
year alone.” Oppenheimer v. Griffin, No. 1:18-CV-00272-MR-WCM, 2019

WL 7373784, at *7 (W.D.N.C. Dec. 31, 2019) (collecting cases) appeal
docketed No. 20-1112 (4th Cir. Jan 31, 2020). The Court is also familiar with
the Plaintiff’s business because it recently assessed damages in a
comparable case where the Plaintiff sought statutory damages under the

Copyright Act and the DMCA following a default judgment. Id.4 Given the
Court’s familiarity with the issues presented in this case, judicial economy
and responsible stewardship of judicial resources weigh in favor of the Court

assessing the damages here instead of a jury. Accordingly, the Court will
deny the Plaintiff’s requests for a jury trial and will assess the damages in
this case.

4 Where the Court is faced with very similar (even identical) circumstances, the law calls
for the issues to be decided consistently and uniformly. If this case involved different
issues, a defense, or adversarial presentations to a jury, that interest in uniformity would
be greatly diminished. This case, however, involves none of those. As such, the Court
can promote the interests of consistency and uniformity by assessing the damages here.
E. Hearing on Damages
The Court having found that “liability is established, it must then

determine damages.” Allstate Ins. Co. v. Frost, No. 3:16-CV-00134-RJC-
DSC, 2018 WL 1175230, at *3 (W.D.N.C. Mar. 6, 2018) (Conrad, J.) (citation
omitted). The Court must make an independent determination regarding

damages and cannot accept factual allegations of damages as true. Fed.
Rule Civ. P. 55; S.E.C. v. Lawbaugh, 359 F. Supp. 2d 418, 422 (D. Md.
2005). While the court may conduct an evidentiary hearing to determine
damages, it is not required to do so, but may rely instead on affidavits or

documentary evidence in the record to determine the appropriate sum. J &
J Sports Prods., Inc. v. Sisniega, No. 3:12-CV-392-FDW-DSC, 2013 WL
3899664, at *2 (W.D.N.C. July 29, 2013) (Whitney, J.) (citation omitted).

Here, the Plaintiff has not provided evidence from which the Court can
ascertain the statutory damages that should be awarded under the Copyright
Act and the DMCA. As such, the Court will set a hearing at a later date to
allow the Plaintiff to present evidence regarding the statutory damages that

should be awarded in this case.
ORDER
IT IS, THEREFORE, ORDERED that the Plaintiff's Motion for Entry of
Default Judgment on Liability and Request for Jury Trial on Damages [Doc.
19] is GRANTED IN PART and DENIED IN PART as follows:
(1) The Motion is GRANTED with respect to the Plaintiffs Motion for
Default Judgment as to the Defendants’ liability for copyright
infringement and violations of the DMCA.
(2) The Motion is DENIED with respect to the Plaintiff's request for a
jury trial.
IT IS SO ORDERED.

Signed: July 23, 2020
Se ee
Chief United States District Judge AS

18

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10256038. Public record. Not legal advice.