Opinion
Civil Action 22 Civ. 7398 (AS) (SLC)
01-23-2024
SCOTT CAWTHON, Plaintiff, v. NGAN THI PHUONG NGUYEN, Defendant.
TO THE HONORABLE ARUN SUBRAMANIAN, UNITED STATES DISTRICT JUDGE:
REPORT AND RECOMMENDATION
SARAH L. CAVE, UNITED STATES MAGISTRATE JUDGE.
I. INTRODUCTION
Plaintiff Scott Cawthon (“Cawthon”) brought this action for copyright infringement under the Copyright Act, 17 U.S.C. §§ 106 and 501 (the “Act”), against Defendant Ngan Thi Phuong Nguyen (“Nguyen”). (ECF No. 1 (the “Complaint”)). Cawthon, who created and owns the intellectual property arising from the “Five Nights at Freddy's” (“FNAF”) video games and novels, alleges that Nguyen unlawfully sold on Amazon products that infringe Cawthon's copyrights. (Id. ¶¶ 10, 23-26). After Nguyen failed to appear and defend in this action, the Honorable John G. Koeltl ordered that Cawthon was entitled to a default judgment against Nguyen and referred the matter for an inquest on damages. (ECF Nos. 24-25). Having now received and reviewed Cawthon's submissions in support of his request for damages and the record in this case (ECF No. 28 (the “Damages Submission”)), the Court respectfully recommends that:
1. A default judgment be entered awarding Cawthon:
a. $15,000.00 in statutory damages;
b. Post-judgment interest pursuant to 28 U.S.C. § 1961;
c. $7,330.50 in attorneys' fees; and
d. $402.00 in costs.
2. Cawthon's requests for prejudgment interest and injunctive relief be DENIED.
II. BACKGROUND
A. Factual Background
Given Nguyen's default, the court accepts as true all well-pleaded factual allegations in Cawthon's Complaint, except as to damages. See City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 137 (2d Cir. 2011) (“It is an ‘ancient common law axiom' that a defendant who defaults thereby admits all ‘well-pleaded' factual allegations contained in the complaint.”) (quoting Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2004)); Malibu Media, LLC v. Greenwood, No. 17 Civ. 1099 (PAE) (SLC), 2019 WL 7580083, at *1 (S.D.N.Y. Dec. 17, 2019), adopted by, 2020 WL 209140 (S.D.N.Y. Jan. 14, 2020).
Internal citations and quotation marks are omitted from case citations unless otherwise indicated.
Cawthon is the creator, author, and intellectual property owner of the FNAF series of novels and video games, the first of which were released in August 2014 and have since grown to include over twelve games (the “Five Nights Games”) that have been purchased by “[m]illions of people worldwide[.]” (ECF No. 1 ¶¶ 10-12, 14).The Five Nights Games are available to purchase and download for personal computers, on mobile platforms, and on video game platforms. (Id. ¶ 13). Cawthon owns over 200 registered copyrights related to the FNAF franchise, including the following character images:
The Five Nights Games include: Five Nights at Freddy's, Five Nights at Freddy's 2, Five Nights at Freddy's 3, Five Nights at Freddy's 4, FNaF World, Five Nights at Freddy's: Sister Location, Freddy Fazbear's Pizzeria Simulator, Ultimate Custom Night, Five Nights at Freddy's VR: Help Wanted, Five Nights at Freddy's AR: Special Delivery, Freddy in Space 2, and Five Nights at Freddy's: Security Breach. (ECF No. 1 ¶ 12).
(Id. ¶¶ 15-16 (the “Copyrights”); see ECF Nos. 1-2; 1-3; 1-4). Cawthon, through his licensing entity, Scottgames, LLC, licenses the FNAF characters, including those appearing in the Copyrights, for use in merchandise products, which have produced millions of dollars at retail stores. (ECF No. 1 ¶¶ 17-18). Among the products for which Cawthon has granted authorized licenses are “charms depicting the characters.” (Id. ¶ 19). The Five Nights Games and the FNAF characters “have a high degree of consumer recognition.” (Id. ¶ 20).
Bonnie the Rabbit (Adventure Version-Classic) Copyright Registration No. VAu001220851
(Image Omitted)
Foxy the Pirate (Adventure Version-Classic) Copyright Registration No. VAu001220661
(Image Omitted)
Chica the Chicken (Adventure Version-Classic) Copyright Registration No. VAu001220667
(Image Omitted)
Nguyen, an Amazon seller, has advertised and sold the following unauthorized and unlicensed reproductions of the FNAF characters:
(Image Omitted)
(ECF No. 1 ¶¶ 23-26 (the “Infringing Product”); see ECF No. 1-5 (Amazon listing for Infringing Product)). The Infringing Product, which Nguyen advertised as “FNAF Croc Charms,” uses the Copyrights without adding any transformational element. (ECF No. 1 ¶¶ 26, 31; see ECF No. 1-5). Nguyen is not an authorized licensee of Cawthon, advertised using the Copyrights without Cawthon's permission, and has not paid Cawthon any royalties or requested permission to use the Copyrights. (ECF No. 1 ¶¶ 28-30).
On August 9, 2022, Cawthon submitted to Amazon a complaint pursuant to the Digital Millennium Copyright Act, 17 U.S.C. § 1202 (the “DMCA”), requesting that Amazon remove the Infringing Product. (ECF No. 1 ¶ 32). On August 11, 2022, Amazon removed the Infringing Product from its platform. (Id. ¶ 33). On August 16, 2022, Nguyen filed a counter-notification under the DMCA, contesting Amazon's removal of the Infringing Product, consenting to “the jurisdiction of any judicial district in which Amazon may be found[,]” and agreeing to accept service of process from Cawthon. (ECF No. 1-1 at 1 (the “Counter-Notice”)).An Amazon fulfillment center is located at 7 West 34th Street, New York, New York 10001, which is within this District. (ECF No. 1 ¶ 9).
The relevant portions of the Counter-Notice state:
You recently provided me with a copy of a Notice of Infringement under the Digital Millennium Copyright Act. (DMCA). This letter is a Counter-Notification as authorized in § 512(g) of the DMCA. I have a good faith belief that the material identified in the Notice of Infringement was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled. I therefore request that the material be replaced and/or no longer disabled. The material in question formerly appeared on [the] Amazon website with Amazon Standard Identification Number (ASIN): B09VGWZ2Q4. My contact information is as follows: Full Legal name: Ngan Thi Phuong Nguyen Email Address: nguyenphuongngan.amazon@gmail.com Mailing Address: I don't know why my account has been violated copyright [sic]. Please check it for me! . . . [Checkmark] (I) . . . I am located outside of the United States and I consent to the jurisdiction of any judicial district in which Amazon may be found. [Checkmark] (II) I agree to accept service of process from the person who provided notification under subsection (c)(1)(C) or an agent of such person. [Checkmark] (III) I have a good faith belief that the material identified in the Notice of Infringement was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.... Enter your full name as a means of a digital signature. Please note that by entering your full name you are providing us with your digital signature which is legally binding. Ngan Thi Phuong Nguyen.(ECF No. 1-1 at 1).
B. Procedural Background
On August 30, 2022, Cawthon filed the Complaint, which asserts a single claim against Nguyen for copyright infringement under sections 106 and 501 of the Act. (ECF No. 1 ¶¶ 36-48). Cawthon requested actual damages, or, in the alternative, statutory damages under § 504(c) of the Act, as well injunctive relief, attorneys' fees and costs, and pre and post-judgment interest. (Id. at 8-10). On January 9, 2023, Cawthon moved for permission to serve Nguyen via email, which Judge Koeltl granted. (ECF Nos. 8-9; 11 (the “Service Order”)). On January 20, 2023, Cawthon served the summons, Complaint and exhibits, civil cover sheet, and Service Order on Nguyen at the email address provided in the Counter-Notice. (ECF Nos. 12; 12-1).
After Nguyen failed to appear and respond to the Complaint, Cawthon requested a certificate of default, which the Clerk of the Court entered on April 7, 2023. (ECF Nos. 13-15). On April 20, 2023, Cawthon moved by order to show cause for entry of default judgment. (ECF Nos. 16-18; 20 (the “Default Motion”)). On May 23, 2023, Judge Koeltl issued an order to show cause directing Nguyen to respond by June 9, 2023, failing which a default judgment could be entered. (ECF No. 21 (the “OTSC”)). On May 26, 2023, Cawthon served on Nguyen by email copies of the OTSC and the Default Motion. (ECF Nos. 22; 22-1).
On June 16, 2023, after Nguyen failed to respond to the OTSC, Judge Koeltl ordered that Cawthon “is entitled to a default judgment against” Nguyen and referred the matter for an inquest on damages. (ECF Nos. 24 (the “Default Order”); 25). On June 26, 2023, the Court entered a scheduling order requiring Cawthon to file the Damages Submission by July 26, 2023, to which Nguyen was ordered to respond by August 16, 2023. (ECF No. 26 (the “Scheduling Order”)). Nguyen was warned that the failure to respond or request an in-court hearing would result in the issuance of a report and recommendation on damages based on Cawthon's Damages Submission alone and without a hearing. (Id. at 1). Cawthon served the Scheduling Order on Nguyen by email. (ECF No. 27).
On July 18, 2023, Cawthon filed the Damages Submission. (ECF Nos. 28; 28-1). On August 1, 2023, the action was reassigned to the Honorable Arun Subramanian. (ECF min. entry Aug. 1, 2023). To date, Nguyen has not appeared in this action, responded to the Complaint, or contacted the Court.
III.DISCUSSION
A. Legal Standards
1. Obtaining a Default Judgment
A party seeking a default judgment must follow the two-step procedure set forth in Federal Rule of Civil Procedure 55. See Bricklayers & Allied Craftworkers Loc. 2 v. Moulton Masonry & Constr., LLC, 779 F.3d 182, 186-87 (2d Cir. 2015) (per curiam). First, under Rule 55(a), where a party has failed to plead or otherwise defend in an action, the Clerk of the Court must enter a certificate of default. See Fed.R.Civ.P. 55(a). Second, after entry of the default, if the party still fails to appear or move to set aside the default, the Court may enter a default judgment. See Fed.R.Civ.P. 55(b). Whether to enter a default judgment lies in the “sound discretion” of the trial court. Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir. 1993). Because a default judgment is an “extreme sanction” that courts are to use as a tool of last resort, Meehan v. Snow, 652 F.2d 274, 277 (2d Cir. 1981) (per curiam), the district court must “carefully balance the concern of expeditiously adjudicating cases, on the one hand, against the responsibility of giving litigants a chance to be heard, on the other.” Lopez v. Emerald Staffing, Inc., No. 18 Civ. 2788 (SLC), 2020 WL 915821, at *4 (S.D.N.Y. Feb. 26, 2020).
In considering whether to enter a default judgment, district courts are “guided by the same factors [that] apply to a motion to set aside entry of a default.” First Mercury Ins. Co. v. Schnabel Roofing of Long Is., Inc., No. 10 Civ. 4398 (JS) (AKT), 2011 WL 883757, at *1 (E.D.N.Y. Mar. 11, 2011). “These factors include: (1) whether the default was willful; (2) whether ignoring the default would prejudice the opposing party; and (3) whether the defaulting party has presented a meritorious defense.” J & J Sports Prods. Inc. v. 1400 Forest Ave. Rest. Corp., No. 13 Civ. 4299 (FB) (VMS), 2014 WL 4467774, at *4 (E.D.N.Y. Sept. 10, 2014), adopted by, 2014 WL 4467774, at *1 (E.D.N.Y. Sept. 9, 2014) (citing Swarna v. Al-Awadi, 622 F.3d 123, 142 (2d Cir. 2010)); see Enron, 10 F.3d at 96 (noting that “[a]lthough the factors examined in deciding whether to set aside a default or a default judgment are the same, courts apply the factors more rigorously in the case of a default judgment because the concepts of finality and litigation repose are more deeply implicated in the latter action”).
2. Determining Liability
A defendant's default is deemed “a concession of all well-pleaded allegations of liability,” Rovio Entm't, Ltd. v. Allstar Vending, Inc., 97 F.Supp.3d 536, 545 (S.D.N.Y. 2015), but a default “only establishes a defendant's liability if those allegations are sufficient to state a cause of action against the defendants.” Gesualdi v. Quadrozzi Equip. Leasing Corp., 629 Fed.Appx. 111, 113 (2d Cir. 2015) (summary order). The Court must determine “whether the allegations in [the] complaint establish the defendants' liability as a matter of law.” Id. If the Court finds that the well-pleaded allegations establish liability, the Court then analyzes “whether plaintiff has provided adequate support for [his requested] relief.” Gucci Am., Inc. v. Tyrrell-Miller, 678 F.Supp.2d 117, 119 (S.D.N.Y. 2008). If, however, the Court finds that the complaint fails to state a claim on which relief may be granted, the Court may not award damages, “even if the postdefault inquest submissions supply the missing information.” Lopez, 2020 WL 915821, at *4.
3. Determining Damages
Once liability has been established, the Court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm. v. Berman, No. 15 Civ. 5983 (LAK) (JLC), 2016 WL 3365313, at *3 (S.D.N.Y. June 15, 2016), adopted by, 2016 WL 4532201 (S.D.N.Y. Aug. 29, 2016). A plaintiff “bears the burden of establishing [its] entitlement to recovery and thus must substantiate [its] claim with evidence to prove the extent of damages.” Dunn v. Advanced Credit Recovery Inc., No. 11 Civ. 4023 (PAE) (JLC), 2012 WL 676350, at *2 (S.D.N.Y. Mar. 1, 2012). The evidence the plaintiff submits must be admissible. See Poulos v. City of New York, No. 14 Civ. 3023 (LTS) (BCM), 2018 WL 3750508, at *2 (S.D.N.Y. July 13, 2018), adopted by, 2018 WL 3745661 (S.D.N.Y. Aug. 6, 2018); see also House v. Kent Worldwide Mach. Works, Inc., 359 Fed.Appx. 206, 207 (2d Cir. 2010) (summary order) (“[D]amages must be based on admissible evidence.”). If the documents the plaintiff has submitted provide a “sufficient basis from which to evaluate the fairness of” the requested damages, the Court need not conduct an evidentiary hearing. Fustok v. ContiCommodity Servs. Inc., 873 F.2d 38, 40 (2d Cir. 1989); see Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105, 111 (2d Cir. 1997) (noting that a court may determine appropriate damages based on affidavits and documentary evidence “as long as [the court has] ensured that there [is] a basis for the damages specified in the default judgment”).
B. Application
1. Default Judgment
In accordance with the two-step process in Rule 55, the Clerk of the Court entered a certificate of default as to Nguyen, and Judge Koeltl entered the Default Order, holding that Cawthon “is entitled to a default judgment against” Nguyen. (ECF Nos. 15; 24). Considering the relevant factors set forth above, the Court first finds, based on Nguyen's failure to submit any response to the Damages Submission after having been properly served, that the default was willful. See Indymac Bank, F.S.B. v. Nat'l Settlement Agency, Inc., No. 07 Civ. 6865 (LTS) (GWG), 2007 WL 4468652, at *1 (S.D.N.Y. Dec. 20, 2007) (finding that a failure to respond to a complaint and subsequent motion for default judgment “indicate[s] willful conduct”). Second, delaying entry of a default judgment might prejudice Cawthon, “as there are no additional steps available to secure relief in this Court.” Bridge Oil Ltd. v. Emerald Reefer Lines, LLC, No. 06 Civ. 14226 (RLC) (RLE), 2008 WL 5560868, at *2 (S.D.N.Y. Oct. 27, 2008), adopted by, 2009 U.S. Dist. LEXIS 6074 (S.D.N.Y. Jan. 26, 2009). Third, Nguyen has failed to respond to the Court's order to appear and defend in this action. Thus, because the requirements of Rule 55 are satisfied and the relevant factors weigh in Cawthon's favor, entry of default judgment fixing the award of damages to Cawthon is proper.
2. Liability
a. Jurisdiction and Venue
As a threshold matter, the Court has subject matter jurisdiction over this action. Cawthon sues under a federal statute-the Act-that gives rise to the Court's subject matter jurisdiction under 28 U.S.C. § 1331. The Court also has personal jurisdiction, “a necessary prerequisite to entry of a default judgment[,]” over Nguyen, who consented to jurisdiction and service in the Counter-Notice. Reilly v. Plot Commerce, No. 15 Civ. 5118 (PAE) (BCM), 2016 WL 6837895, at *2 (S.D.N.Y. Oct. 31, 2016), adopted by, 2016 U.S. Dist. LEXIS 160884 (S.D.N.Y. Nov. 21, 2016); see 17 U.S.C. § 512(g)(3)(D). (ECF No. 1-1 at 1). Cawthon also properly served Nguyen by email with the Court's permission. (ECF Nos. 11-12). Venue is also proper under 28 U.S.C. § 1391(b)(3).
b. Statute of Limitations
A civil action for copyright infringement must be “‘commenced within three years after the claim accrued.'” Psihoyos v. John Wiley & Sons, Inc., 748 F.3d 120, 124 (2d Cir. 2014) (quoting 17 U.S.C. § 507(b)). The Second Circuit follows the “discovery rule,” pursuant to which “copyright infringement claims do not accrue until actual or constructive discovery of the relevant infringement[.]” Id. at 125. Thus, “an infringement claim does not ‘accrue' until the copyright holder discovers, or with due diligence should have discovered, the infringement.” Id. at 124. “The standard for whether a plaintiff should have discovered the relevant infringement is an objective one.” PK Music Performance, Inc. v. Timberlake, No. 15 Civ. 1215 (VSB), 2018 WL 4759737, at *7 (S.D.N.Y. Sept. 30, 2018); accord Minden Pictures, Inc. v. Complex Media, Inc., No. 22 Civ. 4069 (RA), 2023 WL 2648027, at *2 (S.D.N.Y. Mar. 27, 2023).
Here, the Complaint alleges that, on August 9, 2022, Cawthon requested that Amazon remove the Infringing Product from its platform (ECF No. 1 ¶ 32), giving rise to the inference that Cawthon discovered the infringement as of that date. Cawthon filed the Complaint on August 30, 2022, well within the three-year statute of limitations. (See ECF No. 1) In any event, Nguyen's failure to appear and assert a defense based on the statute of limitations is a waiver of that defense. See Clement v. United Homes, LLC, No. 10 Civ. 2122 (RRM), 2010 WL 4941489, at *2 (E.D.N.Y. Nov. 30, 2010) (deeming defendant's default to be a waiver of statute of limitations defense); see also Davis v. Bryan, 810 F.2d 42, 44 (2d Cir. 1987) (“If a defendant fails to assert the statute of limitations defense, the district court ordinarily should not raise it sua sponte.”).
c. Copyright Infringement
Cawthon alleges that Nguyen's Infringing Product infringes the Copyrights on the FNAF characters. (ECF No. 1 ¶¶ 23-31). Nguyen's “default equates to a concession of liability as to the allegations in [Cawthon]'s Complaint[,]” Malibu Media, 2019 WL 7580083, at *3, provided that the “allegations are sufficient to state a cause of action[.]” Taizhou Zhongneng Imp. & Exp. Co. v. Koutsobinas, 509 Fed.Appx. 54, 56 (2d Cir. 2013) (summary order). A claim of copyright infringement requires proof of two elements: “‘(1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original.'” Abdin v. CBS Broad., Inc., 971 F.3d 57, 66 (2d Cir. 2020) (quoting Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991)). Under the Act, “the certificate of a registration made before or within five years after first publication of the work shall constitute prima facie evidence of the validity of the copyright and the facts stated in the certificate.” 17 U.S.C. § 410(c). “The evidentiary weight to be accorded the certificate of a registration made thereafter shall be within the discretion of the court.” Id. Cawthon registered the Copyrights in 2015 (ECF Nos. 1-2; 1-3; 1-4), so they are not entitled to a statutory presumption of validity, but because Nguyen “has adduced no evidence to cast doubt on the validity of these copyright registrations, the Court finds that they suffice as prima facie evidence of a copyright.” BMaddox Enters. LLC v. Oskouie, No. 17 Civ. 1889 (RA), 2021 WL 3675072, at *8 (S.D.N.Y. Aug. 18, 2021) (“BMaddox I”). As to the second element, the record establishes that Nguyen copied the Copyrights and incorporated into the Infringing Product, without Cawthon's authorization. (ECF No. 1 ¶¶ 23-31; see ECF Nos. 1-2 - 1-5). Accordingly, Cawthon has established Nguyen's liability for copyright infringement under the Act as a matter of law. See Malibu Media, 2019 WL 7580083, at *3 (holding that defendant's default was concession of liability for copyright infringement, which was adequately pled based on allegations of plaintiff's ownership of valid copyrights and defendant's copying without authorization).
3. Damages
Nguyen's liability for copyright infringement under the Act having been established, the Court must “conduct an inquiry in order to ascertain the amount of damages with reasonable certainty.” Am. Jewish Comm., 2016 WL 3365313, at *3. Here, Cawthon seeks statutory damages of $30,000.00, enhanced statutory damages of $150,000.00, and attorneys' fees of $13,895.50. (ECF No. 28 ¶¶ 5-6, 11).
As an initial matter, the Court finds that a hearing is unnecessary because Cawthon's Damages Submission and the record constitute a “sufficient basis from which to evaluate the fairness of” his damages request. Fustok, 873 F.2d at 40; see McDermott v. NYFireStore.com, Inc, No. 18 Civ. 10853 (AJN) (SLC), 2021 WL 952455, at *3 (S.D.N.Y. Jan. 15, 2021) (finding no hearing necessary where plaintiff requested statutory damages), adopted by, 2021 WL 950507 (S.D.N.Y. Mar. 12, 2021); Craine v. Beyond the W, LLC, No. 19 Civ. 2259 (JMA) (AYS), 2021 WL 930255, at *2 (E.D.N.Y. Mar. 11, 2021) (same); Hirsch v. Sell It Soc., LLC, No. 20 Civ. 153 (LTS) (BCM), 2020 WL 5898816, at *4 (S.D.N.Y. Oct. 5, 2020) (same).
a. Statutory Damages
i. Legal Standard
“Pursuant to Section 504 of the [] Act, a copyright owner is entitled to recover the actual damages the infringer caused, plus any profits the infringer gained, or statutory damages.” Malibu Media, 2019 WL 7580083, at *3 (citing 17 U.S.C. § 504(a)). A copyright owner who elects to recover statutory damages instead of actual damages may recover damages “of not less than $750 or more than $30,000 as the court considers just.” 17 U.S.C. § 504(c)(1). “Statutory damages are available without proof of plaintiff's actual damages, and are useful in cases where proof of actual damages or profits is insufficient.” EMI April Music Inc. v. 4MM Games, LLC, No. 12 Civ. 2080 (DLC) (JLC), 2014 WL 325933, at *3 (S.D.N.Y. Jan. 13, 2014), adopted by, 2014 WL 1383468 (S.D.N.Y. Apr. 7, 2014). The Act gives a court “wide discretion” to set the amount of statutory damages.” Fitzgerald Publ'g Co. v. Baylor Publ'g Co., 807 F.2d 1110, 1116 (2d Cir. 1986). Courts in this Circuit consider the following factors in exercising discretion to set the amount of statutory damages:
(1) the infringer's state of mind; (2) the expenses saved, and profits earned, by the infringer; (3) the revenue lost by the copyright holder; (4) the deterrent effect on the infringer and third parties; (5) the infringer's cooperation in providing evidence concerning the value of the infringing material; and (6) the conduct and attitude of the parties.
Myeress v. Elite Travel Grp. USA, No. 18 Civ. 340 (AJN), 2018 WL 5961424, at *3 (S.D.N.Y. Nov. 14, 2018) (quoting Bryant v. Media Right Prods., 603 F.3d 135, 144 (2d Cir. 2010)). In addition, the Court is “guided by the calculations of other courts in this Circuit to ensure that [Cawthon] receives a fair and just recovery.” Serio v. Skijor, USA, Inc., No. 23 Civ. 438 (LJL), 2023 WL 8372894, at *3 (S.D.N.Y. Dec. 4, 2023).
In addition, where the defendant's infringement is willful, the Act gives the court discretion to increase the award up to $150,000 per work. See 17 U.S.C. § 504(c)(2). Where there is evidence of willfulness, the “court should consider incorporating both a compensatory and punitive component to discourage further wrongdoing by the defendants and others.” Whitehead v. Mix Unit, LLC, No. 17 Civ 9476 (VSB) (JLC), 2019 WL 384446, at *3 (S.D.N.Y. Jan. 31, 2019), adopted by, 2019 WL 1746007 (S.D.N.Y. Apr. 18, 2019).
ii. Application
Nguyen's failure to appear and produce discovery in this action renders it difficult for the Court to evaluate most of the discretionary factors set forth above. Nguyen's default, as well as the Counter-Notice, which disputed Cawthon's assertion of the Copyrights (ECF No. 1-1), are some evidence of willfulness. See Cawthon v. Pan Nuan Nuan, No. 22 Civ. 3019 (DLC), 2023 WL 2758435, at *2 (S.D.N.Y. Apr. 3, 2023) (“Courts in this district have consistently held that ‘[c]opyright infringement is deemed willful by virtue of a defendant's default.'”) (quoting Rovio, 97 F.Supp.3d at 546); Hirsch, 2020 WL 5898816, at *4 (finding that defendant's default was evidence of willfulness). The remaining factors, however, “either militate against a substantial award or are indeterminable upon the record before the Court.” Hirsch, 2020 WL 5898816, at *4. As to the second and third factors, Cawthon has neither alleged any amount of Nguyen's profits on the Infringed Products nor any amount of revenue Cawthon lost as a result of the infringement. While Cawthon certainly had “the right to elect not to provide evidence of actual damages,” the Court is also “free to consider the absence of such evidence in arriving at an award of statutory damages.” Green v. Akonik Label Grp., LLC, No. 19 Civ. 7492 (PGG) (OTW), 2022 WL 2817311, at *4 (S.D.N.Y. July 19, 2022). Furthermore, “numerous courts have found that an award of the maximum statutory damages is not appropriate where there is no evidence of actual harm to the plaintiff.” Id. (collecting cases awarding between $750 to $5,000 for single use copyright infringement).
The fourth factor-the need to deter the infringer and third parties-weighs against a substantial statutory damages award here. As one court in this District has recognized, “if the need to deter any infringement warranted a statutory damages award for tens of thousands of dollars, Congress would not have permitted awards as low as $750.” Serio, 2023 WL 8372894, at *4. “Instead, courts have concluded that the need for specific deterrence is particularly acute when the defendant is ‘a serial copyright infringer, or . . . continues to infringe copyrights in spite of repeated notices of infringement.'” Id. (quoting Parsons v. Bong Mines Ent'mt LLC, No. 19 Civ. 813 (JMA) (AKT), 2021 WL 931506, at *9 (E.D.N.Y. Feb. 18, 2021), adopted by, 2021 WL 930259 (E.D.N.Y. Mar. 11, 2021)); see Bass v. Diversity Inc. Media, No. 19 Civ. 2261 (AJN), 2020 WL 2765093, at *4 (S.D.N.Y. May 28, 2020) (finding that absence of evidence of serial infringement or continued infringement despite repeated notices of infringement weighed against substantial award). Here, there is no evidence that Nguyen is a serial infringer or continued infringing the Copyrights after receiving Cawthon's notice of infringement.
As to the fifth factor-the infringer's cooperation in providing evidence of the value of the infringing material-Nguyen's “default weighs in favor of a substantial statutory award.” Parsons, 2021 WL 931506, at *9 (collecting cases holding that default warranted substantial award).
As to the sixth factor-the conduct and attitude of the parties-while Nguyen's default weights in favor of a larger award, Cawthon's “failure to provide any evidence which might assist the Court in evaluating the appropriateness of the statutory award sought, such as [his] licensing fees history, weighs against a substantial award.” Parsons, 2021 WL 931506, at *10 (collecting cases); see Serio, 2023 WL 8372894, at *5 (finding that “dearth of information” from plaintiff weighed against substantial award); Hirsch, 2020 WL 5898816, at *4 (finding that $30,000 award was not warranted where “Plaintiff's decision to withhold information about the Defendant and his own licensing history has hindered the Court in its assessment of the basis for the requested statutory damages”).
The Court's balancing of all six factors demonstrates that awarding the maximum amount of statutory damages of $30,000 plus enhanced statutory damages of $150,000 that Cawthon requests is not warranted here. Courts in this District have awarded statutory damages in an amount between $1,000 and $5,000 for single-use copyright infringement actions. See Serio, 2023 WL 8372894, at *5 (awarding $1,000 for single non-willful infringement); Green, 2022 WL 2817311, at *3-4 (awarding $1,000 for single infringement with “weak” evidence of willfulness); Hirsch, 2020 WL 5898816, at *5 (awarding $5,000 for single willful infringement where “licensing fee is inferred to be de minimis”). Here, Nguyen infringed on the three Copyrights, and while the Counter-Notice contains some evidence of willfulness, there is no evidence that Nguyen was a serial infringer or continued the infringement after being notified of the infringement. In addition, Cawthon has not provided evidence of comparable licensing fees for the Copyrights. Under these circumstances, the Court considers $15,000-i.e., $5,000 for Nguyen's infringement of each of the three Copyrights-to be a “just” statutory damages award on the record Cawthon has provided. 17 U.S.C. § 504(c)(1).
b. Interest and Injunctive Relief
In the Complaint, Cawthon requests prejudgment and postjudgment interest, as well as various forms of injunctive relief. (ECF No. 1 at 9-10). Cawthon repeated these requests in the Default Motion, but did not provide any analysis or legal support. (ECF No. 18 at 18-19). The Damages Submission does not address these requests. (See ECF No. 28).
i. Prejudgment interest
“The Copyright Act neither allows nor prohibits an award of prejudgment interest, and the issue of the permissibility of prejudgment interest is unresolved in this Circuit.” Tetra Images, LLC v. Grahall Partners, LLC, No. 19 Civ. 5250 (PMH), 2021 WL 2809566, at *6 (S.D.N.Y. July 6, 2021) (quoting Capitol Recs., Inc. v. MP3tunes, LLC, No. 07 Civ. 9931 (WHP), 2015 WL 13684546, at *4 (S.D.N.Y. Apr. 3, 2015)). “District courts thus have the discretion to award or not award prejudgment interest in copyright cases and cases where other federal law is similarly neutral.” Joe Brands LLC v. Edcmaker, No. 21 Civ. 5278 (LLS) (RWL), 2023 WL 8591613, at *4 (S.D.N.Y. Nov. 28, 2023), adopted by, 2023 WL 8763450 (S.D.N.Y. Dec. 19, 2023).
Here, “[a]s the authority to grant prejudgment interest is not clear”-and Cawthon did not elaborate on this issue in his Default Motion or Damages Submission-“the Court is not inclined to grant that relief.” Tetra, 2021 WL 2809566, at *6; see Stokes v. MilkChocolateNYC LLC, No. 22 Civ. 6786 (PAE) (RWL), 2023 WL 4447073, at *12 (S.D.N.Y. June 20, 2023) (recommending denial of prejudgment interest on copyright infringement claims), adopted by, 2023 WL 4447073 (S.D.N.Y. July 11, 2023). Accordingly, the Court respectfully recommends that no prejudgment interest be awarded.
ii. Postjudgment interest
The applicable federal statute provides that “[i]nterest shall be allowed on any money judgment in a civil case recovered in a district court . . . calculated from the date of entry of the judgment, at a rate equal to the weekly average 1-year constant maturity Treasury yield, as published by the Board of Governors of the Federal Reserve System, for the calendar week preceding . . . the date of the judgment.” 28 U.S.C. § 1961. The Second Circuit has explained that an award of postjudgment interest is mandatory. See Schipani v. McLeod, 541 F.3d 158, 165 (2d Cir. 2008). Given the mandatory nature of postjudgment interest, the Court respectfully recommends that Cawthon be awarded postjudgment interest in an amount consistent with 28 U.S.C. § 1961.
iii. Injunctive relief
“Because [Cawthon] does not request injunctive relief in his inquest briefing, it is unnecessary to analyze whether it is appropriate to recommend an injunction against [Nguyen].” Sadowski v. Primera Plana NY, Inc., No. 18 Civ. 10072 (GBD) (OTW), 2019 WL 8362165, at *1 n.1 (S.D.N.Y. Oct. 16, 2019), adopted by, 2021 WL 5910407 (S.D.N.Y. Dec. 14, 2021). (See ECF No. 28). “Regardless, [Cawthon] has submitted no evidence to support any form of injunctive relief.” Id. (citing Lane Crawford LLC v. Kelex Trading (CA) Inc., No. 12 Civ. 9190 (GBD) (AJP), 2013 WL 6481354, at *12 (S.D.N.Y. Dec. 3, 2013) (recommending denial of permanent injunction following default judgment where the plaintiff “fail[ed] to provide any briefing or case law to support the imposition of such broad equitable relief” in its inquest briefing), adopted by, 2014 WL 1338065 (S.D.N.Y. Apr. 3, 2014).
Accordingly, the Court respectfully recommends that Cawthon's request for a permanent injunction be DENIED.
c. Attorneys' Fees
Cawthon seeks attorneys' fees in the amount of $13,895.50, or, alternatively, the discounted amount of $12,114.00, for 34 hours of attorney and paralegal time. (ECF No. 28 ¶ 11; see ECF No. 28-1). In support of his request, he has submitted contemporaneous time records, which are important to assist the Court in evaluating the reasonableness of the fees. See Morozov v. ICOBOX Hub Inc., No. 18 Civ. 3421 (GBD) (SLC), 2020 WL 5665639, at *8 (S.D.N.Y. May 5, 2020) (explaining that “a fee application should be supported by ‘contemporaneous time records' relaying the rates charged and the hours worked by each attorney”) (quoting N.Y. State Ass'n for Retarded Child., Inc. v. Carey, 711 F.2d 1136, 1154 (2d Cir. 1983)).
Although Cawthon did provide billing records, he failed to comply with the Court's directive to provide a tabulation of the timekeepers' hours (ECF No. 26 at 1, 3), so the calculation of hours is the Court's own. (See generally ECF No. 28).
i. Legal Standard
“A court may award reasonable attorneys' fees and costs to a prevailing party under the [] Act.” McDermott, 2021 WL 952455, at *3 (citing 17 U.S.C. § 505); see Malibu Media, 2019 WL 7580083, at *4. An award of attorneys' fees in a copyright action is “not automatic,” but rather “‘a matter of the court's discretion.'” Lucerne Textiles, Inc. v. H.C.T. Textiles Co., No. 12 Civ. 5456 (KMW) (AJP), 2013 WL 174226, at *4 (S.D.N.Y. Jan. 17, 2013) (quoting Fogerty v. Fantasy, Inc., 510 U.S. 517, 534 (1994)), adopted by, 2013 WL 1234911 (S.D.N.Y. Mar. 26, 2013).
In analyzing whether to award attorneys' fees under the Copyright Act, courts consider several factors, including “(1) the frivolousness of the non-prevailing party's claims or defenses; (2) the party's motivation; (3) whether the claims or defenses were objectively unreasonable; and (4) compensation and deterrence.” Bryant, 603 F.3d at 144 (citing Fogerty, 510 U.S. at 534 n.19). The Court must give “substantial weight” to the third factor, objective unreasonableness. Bryant, 603 F.3d at 144 (citing Matthew Bender & Co. v. W. Publ'g Co., 240 F.3d 116, 122 (2d Cir. 2001)).
In calculating a reasonable award of attorneys' fees, the Court must determine the “presumptively reasonable fee” by looking to “what a reasonable, paying client would be willing to pay[.]” Arbor Hill Concerned Citizens Neighborhood Ass'n v. Cnty. of Albany, 522 F.3d 182, 183-84 (2d Cir. 2008); see Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (“The most useful starting point for determining the amount of a reasonable fee is the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate.”). The Second Circuit has explained that the “‘presumptively reasonable fee'” is “the product of a reasonable hourly rate and a reasonable number of hours engaged in litigating the matter.” Solano v. Andiamo Cafe Corp., No. 19 Civ. 3264 (SN), 2021 WL 2201372, at *1 (S.D.N.Y. June 1, 2021) (citing Millea v. Metro-North R. Co., 658 F.3d 154, 166 (2d Cir. 2011)). A party requesting an award of attorneys' fees must provide “contemporaneous time records establishing ‘for each attorney [for whom fees are sought], the date [on which the work was performed], the hours expended, and the nature of the work done.'” Annuity, Welfare & Apprenticeship Skill Imp. & Safety Funds of Int'l Union of Oper. Engineers, Loc. 15, 15A, 15C, 15D v. Integrated Structures Corp., No. 12 Civ. 436 (LGS) (KNF), 2013 WL 2649644, at *7 (S.D.N.Y. June 13, 2013) (quoting Carey, 711 F.2d at 1154), adopted by, 2013 WL 3684933 (S.D.N.Y. July 12, 2013).
ii. Application
The Court finds that an award of attorneys' fees is warranted in this case given Nguyen's default and concludes that an award of attorneys' fees “will further serve the goal of deterrence of copyright infringement.” See Mockingbird 38, LLC v. Int'l Bus. Times, Inc., No. 21 Civ. 283 (LJL), 2022 WL 154137, at *6 (S.D.N.Y. Jan. 18, 2022). The Court therefore turns to the appropriate amount of the award, using the framework set forth above.
a) Reasonable hourly rate
To determine whether an hourly rate is reasonable, the Second Circuit has instructed district courts to “apply the prevailing rate within the district for similar services by lawyers of comparable experience and skill.” Galeana v. Lemongrass on Broadway Corp., 120 F.Supp.3d 306, 323 (S.D.N.Y. 2014) (citing Gierlinger v. Gleason, 160 F.3d 858, 882 (2d Cir. 1998)). A court may also adjust the hourly rate to account for case-specific variables such as:
[i] the time and labor required; [ii] the novelty and difficulty of the questions; [iii] the skill requisite to perform the legal service properly; [iv] the preclusion of employment by the attorney due to acceptance of the case; [v] the customary fee; [vi] whether the fee is fixed or contingent; [vii] time limitations imposed by the client or the circumstances; [viii] the amount involved and the results obtained; [ix] the experience, reputation, and ability of the attorneys; [x] the “undesirability” of the case; [xi] the nature and length of the professional relationship with the client; and [xii] awards in similar cases.Gamero v. Koodo Sushi Corp., 328 F.Supp.3d 165, 173 (S.D.N.Y. 2018) (quoting Hensley, 461 U.S. at 430 n.3). The movant bears the “burden to establish the prevailing market rate.” Sub-Zero, Inc. v. Sub Zero NY Refrig. & Appliances Servs., Inc., No. 13 Civ. 2548 (KMW) (JLC), 2014 WL 1303434, at *8 (S.D.N.Y. Apr. 1, 2014).
Cawthon was represented in this action by the Nissenbaum Law Group (the “Firm”). (ECF No. 28 ¶¶ 8, 12). Five attorneys and three paralegals recorded a total of 34 hours to the matter. (ECF Nos. 28 ¶ 12; 28-1). The most senior timekeeper, Steven L. Procaccini, of counsel to the Firm with over 19 years of experience, requests a rate of $575. (ECF No. 28 ¶ 12(k)). “Courts awarding attorneys' fees in copyright cases have regularly found rates in the range of $400 to $750 for partners to be reasonable.” BMaddox Enters. LLC v. Oskouie, No. 17 Civ. 1889 (RA) (SLC), 2023 WL 1418049, at *4 (S.D.N.Y. Jan. 6, 2023) (collecting cases) (“BMaddox II”), adopted by, 2023 WL 1392075 (S.D.N.Y. Jan. 30, 2023); see Hirsch, 2020 WL 5898816, at *5 (finding $425 to be reasonable hourly rate for partner in copyright case); Bass, 2020 WL 2765093, at *6 (collecting cases finding reasonable range of $350 to $500 for partner in copyright case). Although not a partner in the Firm, Procaccini's experience places him on a level comparable to experienced partners for whom an hourly rate of $500 or more was reasonable in copyright cases. See, e.g., BMaddox II, 2023 WL 1418049, at *4 (finding $500 reasonable hourly rate for attorneys with more than ten years of copyright experience).
The Damages Submission lists a sixth attorney timekeeper, Gary D. Nissenbaum (ECF No. 28 ¶ 12(f)), but, based on the Court's review, he did not record any time to the matter. (ECF No. 28-1). The billing records also list a timekeeper with the initials “GAD” (ECF No. 28-1 at 8), but the Damages Submission provides no identification or credentials for this timekeeper and, accordingly, the Court awards no fees for this timekeeper.
“With respect to associates' rates, courts in the Southern District have generally found hourly rates of $200 to $450 to be reasonable in copyright cases.” Latin Am. Music Co. v. Spanish Broad. Sys., Inc., No. 13 Civ. 1526 (RLS), 2020 WL 2848232, at *7 (S.D.N.Y. June 1, 2020) (collecting cases). Here, two counsel-Anthony C. Guest IV, a 2018 law school graduate, and Ryan Fernandez, a 2014 law school graduate-and two associates-Matthews A. Florez and Sudhit Raghupathi, both 2019 graduates-worked on this matter. (ECF No. 28 ¶¶ 12(g)-(j)). The Court finds that the requested hourly rates of up to $605 for Gunst, $575 for Fernandez, and $450 to $525 for Florez are unreasonably high in light of their experience and recent awards in copyright actions in this District, and instead respectfully recommends that hourly rates of $400 for Gunst and Fernandez and $200 for Florez are more reasonable. See Mockingbird, 2022 WL 154137, at *7 (awarding $300 hourly rate to senior associate); Latin Am. Music Co., 2020 WL 2848232, at *7 (capping copyright associates' rates at $465); Rock v. Enfants Riches Deprimes, LLC, No. 17 Civ. 2618 (ALC), 2020 WL 468904, at *5 (S.D.N.Y. Jan. 29, 2020) (awarding $400 hourly rate for associate with five years of copyright experience). Raghupathi, however, recorded only 0.6 hours of time for preparing a notice of appearance and substitution of counsel, an administrative task that could have been performed by a paralegal, and then no subsequent substantive work on the matter. (ECF No. 28-1 at 8). Accordingly, the Court recommends that Raghupathi's hourly rate be set at the midpoint of the paralegal rate, $150, as discussed below. See Mockingbird, 2022 WL 154137, at *7 (reducing attorney's rate to $100 for tasks that were “administrative in nature but billed” at higher rate).
Finally, as to paralegal rates, “judges in the Southern District of New York have generally found hourly rates of $150 to $200 to be reasonable for paralegals in copyright cases.” Latin Am. Music Co., 2020 WL 2848232, at *7 (collecting cases). Here, Cawthon requests hourly rates of $345 for one senior paralegal, Kaitlyn Ketterman, and $225 for two junior paralegals, Nikki Schuldt and Mardelis Campos, (ECF No. 28 ¶¶ 12(1)-(n)), which exceed the range typically awarded in this District. The use of three paralegals for overlapping tasks also indicates a measure of inefficiency, as discussed further below. Accordingly, the Court respectfully recommends hourly rates of $200 for Ketterman, and $100 for Schuldt and Campos.
b) Hours reasonably expended
To determine the reasonable number of hours required by a case, the critical inquiry is “whether, at the time the work was performed, a reasonable attorney would have engaged in similar time expenditures.” Grant v. Martinez, 973 F.2d 96, 99 (2d Cir. 1992). Courts must perform “a conscientious and detailed inquiry into the validity of the representations that a certain number of hours were usefully and reasonably expended.” Lunday v. City of Albany, 42 F.3d 131, 134 (2d Cir. 1994) (per curiam). “If the Court finds that some of the claimed hours are ‘excessive, redundant or otherwise unnecessary,' it may reduce the number of reasonable hours accordingly.” Bumble & Bumble, LLC v. Pro's Choice Beauty Care, Inc., No. 14 Civ. 6911 (VEC) (JLC), 2016 WL 658310, at *9 (S.D.N.Y. Feb. 17, 2016) (quoting Hensley, 461 U.S. at 434), adopted by, 2016 WL 1717215 (S.D.N.Y. Apr. 27, 2016). The Court is not required to “set forth item-by-item findings concerning what may be countless objections to individual billing items.” Lunday, 42 F.3d at 134. An across-the-board percentage reduction is permitted as a “practical means of trimming fat from a fee application.” Carey, 711 F.2d at 1146.
Cawthon asserts that the 34 hours his counsel expended is reasonable because:
the time and labor expended on this case was increased because of the difficulty and novelty of this matter. Indeed, the difficulty of this case was increased because it involved the Amazon counter-notice process and issues involving email service on an intellectual property located [sic] in China. Indeed, the issue of service on the Defendant (located in China) required motion practice before the Court, legal research, and was implicated by another Southern District case that was on appeal before the Second Circuit court of Appeals.
(ECF No. 28 ¶ 12(a)). The Court finds, however, that these factors fail to justify the use of seven timekeepers on a matter involving three Copyrights and a single instance of infringement sold on an easily accessible sales platform, and in which the Defendant defaulted. While the Firm did file a motion for alternative service on Nguyen (ECF No. 8), the memorandum of law in support was less than thirteen pages (ECF No. 9), and the motion was granted by endorsement without opposition. (ECF No. 11). Furthermore, no court appearances were required over the course of the action. While the Firm also notes that it has already afforded Cawthon an approximately 13% discount of $1,781.50 off the invoices (ECF Nos. 28 ¶ 11; 28-1 at 7), the Court nevertheless finds that a modest additional reduction of 10% is warranted to account for “the scope and complexity”-or lack thereof-of this litigation and the billing inefficiencies noted above. Carey, 711 F.2d at 1146; see BMaddox II, 2023 WL 1418049, at *6 (imposing 20% reduction to account for various billing inefficiencies); Rock, 2020 WL 468904, at *6 (imposing 25% reduction to hours expended where court was “unconvinced” that two attorneys needed to spend as many hours as they did).
Accordingly, applying the 10% reduction to the reduced hourly rates set forth above, the Court respectfully recommends an award of attorneys' fees in the amount of $7,330.50, calculated as follows:
Timekeeper
Requested Rate
Awarded Rate
Requested Hours
Hours
Reduced by 10%
Total
Procaccini
$575
$575
3
2.7
$1,552.50
Gunst
$335-$605
$400
2.1
1.89
$756.00
Fernandez
$575
$400
3.5
3.15
$1,260.00
Florez
$450-$525
$200
12.7
11.43
$2,286.00
Raghupathi
$395
$150
0.6
0.54
$81.00
Ketterman
$345
$200
3.4
3.06
$612.00
Schuldt
$225
$100
7.3
6.57
$657.00
Campos
$225
$100
1.4
1.26
$126.00
TOTAL
$7,330.50
d. Costs
Cawthon seeks reimbursement of costs under 17 U.S.C. § 505. (ECF No. 1 at 10). He has not however, identified the specific costs for which he seeks reimbursement or “submit[ted] invoices or receipts to substantiate the claimed amount[s].” Khotovitskaya v. Shimunov, No. 18 Civ. 7303 (NGG) (CLP), 2021 WL 868781, at *2 (E.D.N.Y. Mar. 9, 2021) (denying costs where party failed to submit documentation substantiating the amounts reflected in attorney billing records); see J&J Sports Prods., Inc. v. Fantasy Bar & Rest. Corp., No. 17 Civ. 5355 (JGK) (DF), 2018 WL 5018065, at *7 (S.D.N.Y. Sept. 20, 2018) (recommending denial of request for costs that lacked documentary support), adopted by, 2018 WL 5016606, at *1 (S.D.N.Y. Oct. 15, 2018). The Court may, however, take judicial notice of the filing fees reflected on the docket as a support for an award of those costs. See McDermott v. Nyfirestore, No. 18 Civ. 10853 (AJN) (SLC), 2021 WL 952455, at *6 (S.D.N.Y. Jan. 15, 2021) (doing so in a copyright infringement case), adopted by, 2021 WL 950507 (S.D.N.Y. Mar. 12, 2021); see also Whitehead, 2019 WL 384446, at *6 (taking judicial notice of court filing fee and awarding costs in that amount); BWP Media USA, Inc. v. Uropa Media, Inc., No. 13 Civ. 7871 (JSR) (JCF), 2014 WL 2011775, at *4 (S.D.N.Y. May 16, 2014) (same). Accordingly, the Court recommends that Cawthon be awarded costs in the amount of $402.00. (See ECF No. 1).
IV.CONCLUSION
For the reasons set forth above, the Court respectfully recommends that:
1. A default judgment be entered against Nguyen awarding Cawthon:
a. $15,000.00 in statutory damages;
b. Post-judgment interest pursuant to 28 U.S.C. § 1961;
c. $7,330.50 in attorneys' fees; and
d. Costs in the amount of $402.00.
2. Cawthon's requests for prejudgment interest and injunctive relief be DENIED.
Cawthon shall promptly serve a copy of this Report and Recommendation on Nguyen, and file proof of service by January 26, 2024.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b). Any request for an extension of time for filing objections must be addressed to Judge Subramanian.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), (d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).