Opinion
6:23-CV-00563-ADA-DTG
07-26-2024
SAY IT VISUALLY, INC. d/b/a FAST FORWARD STORIES Plaintiff, v. TRADE WORLD CORPORATION, Defendant.
HONORABLE ALAN D ALBRIGHT, UNITED STATES DISTRICT JUDGE
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
DEREK T. GILLILAND, UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Court pursuant to 28 U.S.C. § 636(b)(1)(C), Fed.R.Civ.P. 72(b), and Rules 1(d) and 4(b) of Appendix C of the Local Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges. Before the Court is Plaintiff's Motion for Default Judgment against Trade World Corporation (“TWC”). ECF No. 14 (the “Motion”). The Court held a hearing on this motion on June 25, 2024. ECF No. 16 (Minute Entry). After careful consideration of the briefs, arguments of counsel, and the applicable law, the Court RECOMMENDS that the Court GRANT Plaintiff's Motion for Default Judgment. ECF No. 14.
I. BACKGROUND
Plaintiff Say It Visually, Inc. d/b/a Fast Forward Stories (“FFS” or “Plaintiff”) is the author and owner of audiovisual work copyrights in the 163 “explainer” videos at issue. See ECF No. 1, ⁋⁋ 1, 11-12. Copies of these videos (the “Works in Suit”) can be viewed at the hyperlinks set forth in Exhibit 1 to FFS's Complaint (ECF No. 1-1).
Each of these videos is a wholly original expression that has been fixed in a tangible medium of expression, and the United States Copyright Office has issued certificates of copyright registration for each of them. ECF No. 1, ⁋⁋ 12-17. FFS licenses its videos to its subscribers, who pay various subscription fees and are provided “embed links” that allow them to stream the Works in Suit on their websites. Id., ⁋⁋ 18, 24.
In all but two of the Works in Suit, FFS includes a legend that identifies FFS as the copyright owner, and that the copy of the video is being used under license from FFS. This legend is “copyright management information” as defined in 17 U.S.C. § 1202(c), and FFS includes it on its works to deter, detect, and police copyright infringement. ECF No. 1, Id., ⁋⁋ 20-23.
FFS videos 96 (“What is a Loan Estimate and How Can It Help Me?”) and 106 (“Title Insurance Explained Visually”) do not bear such a legend.
TWC is a Canadian company that does website design, and also does business under the name agentwebonline.com. TWC offers a website marketing product known as AgentWebOnline, which it markets to realtors. Id., ⁋ 25. TWC has never been a FFS customer, and has never had any license to reproduce, distribute, modify, or display any of FFS's videos. Id., ⁋ 26.
TWC made copies of all of the Works in Suit, and uploaded those copies to the AgentWebOnline YouTube channel. Id., ⁋ 27. Copies of the Works in Suit that TWC uploaded to the AgentWebOnline YouTube channel can be viewed at the hyperlinks set forth in Exhibit 2 to FFS's complaint. ECF No. 1-2 (“URL of Captured Copy”). This uploading was to YouTube computer servers located in the United States. ECF No. 1, ⁋ 28.
TWC's AgentWebOnline product distributes these copies of the Works in Suit from YouTube servers in the United States to TWC's subscribers in the United States and in Canada, and similarly distributes copies of the Works in Suit to visitors to TWC's subscribers' websites. Id., ⁋ 32. Specifically, AgentWebOnline websites (both TWC's and each of its subscribers) include embed code for a YouTube player, and display a thumbnail image for each of the Works in Suit. Id., ⁋ 33. When a visitor to an AgentWebOnline website clicks on one of these thumbnail images, that launches a YouTube viewer that fetches a copy of the Work in Suit from the YouTube servers in the United States, brands the copy with an AgentWebOnline logo in the upper right corner (visible when the user's pointer is over the video), and streams that doctored copy of the Work in Suit to the visitor's computer or mobile device. Id., ⁋⁋ 34, 39, 54; see also Declaration of Matthew Dunn (ECF No. 14-1, ⁋ 9; explaining how the AgentWebOnline logo was dynamically applied to the copies of the Works in Suit).
Each time an AgentWebOnline website or YouTube channel distributed a copy of a Work in Suit, each such distribution also included the AgentWebOnline logo. That logo was copyright management information, which falsely asserted that AgentWebOnline was the author or writer, performer, or director of the video, and TWC knew that was false because TWC knew it was not the author or writer, performer, or director of the video, but instead had pirated it from FFS. ECF No. 1, ⁋⁋ 64-65. Further, except for distributions of FFS videos 96 and 106, each distribution of a copy of a Work in Suit bore a legend that the copy of the work was under license from FFS. Id., ⁋ 57. Such legends constitute copyright management information. Id., ⁋ 58. Each statement that the work was under license from FFS was false, and TWC knew it was false because it knew it never had any sort of license from FFS. Id., ⁋⁋ 59-60. TWC knowingly distributed such false copyright management information with the intent of facilitating and concealing its infringement of FFS's copyrights. Id., ⁋ 63.
There are at least fourteen TWC subscribers to whom TWC distributed these doctored copies of the Works in Suit, and whose AgentWebOnline websites further distributed such doctored copies. See id. ⁋⁋ 35-55; ECF No. 1-3. One such TWC customer was Debbie Albert Wilson, a realtor in Texas. TWC thus contracted with, and distributed infringing copies of the Works in Suit to, a Texas resident, subjecting TWC to personal jurisdiction in Texas for claims arising out of such conduct. See id. ⁋⁋ 3, 41-45. Additionally, as detailed in Exhibit 3 to FFS's Complaint, some of TWC's subscribers are in Canada, and thus TWC's distributions of copies of the Works in Suit also included distributions of the Works in Suit in Canada. See ECF No. 1, ⁋⁋ 46-56, 92; ECF 1-3.
FFS has adduced evidence, in the form of expert testimony from Matthew Dunn, PhD (ECF No. 14-1), that the market rate for licensing short videos like the Works in Suit for use on a single business website is $30 / month per video. Id., ⁋ 6. Dr. Dunn also opines that from his investigation, the identified TWC's subscribers had their AgentWebOnline websites up for more than three years before FFS filed this action. Id., ⁋ 8.
II. LEGAL STANDARD
This Court has previously detailed the legal standard for adjudicating a motion for default judgment:
“Default judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations.” Lewis v. Lynn, 236 F.3d 766, 767 (5th Cir. 2001). A “party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default.” Settlement Funding, LLC v. TransAmerica Occidental Life Ins. Co., 555 F.3d 422, 424 (5th Cir. 2009).
“When 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, the clerk must enter the party's default.” Fed.R.Civ.P. 55(a). After a defendant has defaulted, the Court may enter a default judgment upon motion. Fed.R.Civ.P. 55(b). Additionally, the plaintiff must file an affidavit stating whether the defendant is in military service before the Court can issue a default judgment. 50 U.S.C § 3931.
“In determining whether to enter a default judgment against a defendant, Courts in the Fifth Circuit use a three-part analysis: (1) whether default judgment is procedurally warranted; (2) whether the [] Complaint sufficiently sets forth facts establishing that [plaintiff] is entitled to relief; and (3) what form of relief, if any, the [plaintiff] should receive.” United States v. Giles, 538 F.Supp.2d 990, 993 (W.D. Tex. 2008).
The Fifth Circuit uses six factors to determine whether a default judgment is procedurally warranted. Alvarado Martinez v. Eltman L., P.C., 444 F.Supp.3d 748, 752 (N.D. Tex. 2020) (citing Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir. 1998)). The factors are: “(1) whether material issues of fact exist; (2) whether there has been substantial prejudice; (3) whether the grounds for default are clearly established; (4) whether the default was caused by a good faith mistake or excusable neglect; (5) the harshness of a default judgment; and (6) whether the court would think itself obliged to set aside the default on the defendant's motion.” Id.
In considering whether the Complaint sets forth facts establishing that plaintiff is entitled to relief, the court accepts as true the well-pleaded allegations of facts in the complaint (except regarding damages) but must determine whether those facts state a claim upon which relief may be granted. United States ex rel. M-Co. Constr., Inc. v. Shipco Gen., Inc., 814 F.2d 1011, 1014 (5th Cir. 1987); Nishimatsu Constr. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). Thus, for a plaintiff to obtain a default judgment, “[t]here must be a sufficient basis in the pleadings for the judgment entered.” Nishimatsu, 515 F.2d at 1206.Avus Holdings, LLC v. Iron Lab, No. 6:22-CV-00134-ADA, 2022 WL 4099748, at *3-4 (W.D. Tex. Sept. 7, 2022) (“Avus Holdings”).
III. DISCUSSION
A. Default judgment against TWC is procedurally warranted.
Default Judgment against TWC is procedurally warranted. TWC received proper service but failed to answer or otherwise respond to the Complaint as required by Federal Rule of Civil Procedure 12. ECF No. 7, ECF No. 12. Additionally, the requirements of 50 U.S.C. § 3931 are not applicable in this case as Defendant is a foreign entity and would therefore be ineligible to serve in the United States military. ECF No. 1 ⁋ 2; see 50 U.S.C. § 3902 (defining scope of “servicemember” to only include “servicemembers of the United States”). Finally, the “procedurally warranted” factors weigh in favor of granting default judgment.
Courts use six factors to determine whether a default judgment is procedurally warranted. Alvarado, 444 F.Supp.3d at 752, and, in this case, all six factors weigh in favor of granting default judgment. First, TWC has not answered or filed a Rule 12(b) motion; accordingly, all of Plaintiff's well-plead allegations, except those related to damages, are accepted as true and no material issues of fact exist. Id.; Nishimatsu, 515 F.2d at 1206 (“The defendant, by his default, admits the plaintiff's well pleaded allegations of fact”). Further, nothing in the record indicates that default resulted from a “good faith mistake or excusable neglect” and the Court finds no substantial prejudice against TWC-it received proper notice and had ample time to appear before the Court, including a 21-day extension of time. ECF No. 7, ECF No. 11. Indeed, TWC actually retained counsel who sought that extension. ECF No. 8. As such, there is no doubt that TWC was aware of this lawsuit and deliberately chose not to respond to it. Defendant's failure to appear is grounds for default. Fed.R.Civ.P. 55. Additionally, default would not be a harsh result in this situation because judgment would be the equivalent to what FFS is entitled to receive by law. Finally, based on the facts known to the Court, the Court will have no reason for which it would be obligated to set aside the default.
B. Plaintiffs' claims have merit.
Default on its own does not warrant entry of default judgment. Aire Serv LLC v. Haywood, No. 6:18-CV-00023-ADA, 2019 WL 10349402, at *2 (W.D. Tex. May 10, 2019). Rather, there must be a sufficient basis in the pleadings, i.e., a plaintiff's claim must have merit. See id. FFS alleges TWC infringed these copyrights in the United States and Canada, and violated Section 1202(a) of the Digital Millennium Copyright Act. Under both United States law and that of Canada, these claims have merit.
Copyright Infringement (US Law). Copyright infringement is committed by “anyone who violates any of the exclusive rights of the copyright owner. A plaintiff generally must prove two elements to establish infringement: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Joe Hand Promotions, Inc. v. Johnson, No. W-19-CV-00472-ADA, 2022 WL 3233433, at *2 (W.D. Tex. Aug. 9, 2022). Taking the well-pleaded allegations of FFS's Complaint as true, these elements are present. FFS is the owner of valid copyrights in each of the Works in Suit (each of which is an original work), and TWC has reproduced and distributed literal copies of them.
Once a copyright owner makes a prima facie showing that it is the owner of a valid copyright, there is a presumption that the work is original and thus protected expression. See 17 U.S.C. § 410(c); M. Kramer Mfg. Co. v. Andrews, 783 F.2d 421, 434 (4th Cir. 1986). The burden then shifts to the defendant to identify why the work or any portion of it is not protected, and to prove that. See, e.g., SAS Inst., Inc. v. World Programming Ltd., 64 F.4th 1319, 1330 (Fed. Cir. 2023); Compulife Software Inc. v. Newman, 959 F.3d 1288, 1306 (11th Cir. 2020); Boisson v. Banian, Ltd., 273 F.3d 262, 269 (2d Cir. 2001); Masquerade Novelty, Inc. v. Unique Indus., Inc., 912 F.2d 663, 669 (3d Cir. 1990). Obviously, that has not happened in this case.
Copyright Infringement (Canadian Law). Where a court has personal jurisdiction over the defendant, and has subject matter jurisdiction under either diversity jurisdiction or supplemental jurisdiction, it can adjudicate foreign copyright infringement claims. See, e.g., New Name, Inc. v. Walt Disney Co., No. CV07-5034PA(RZX), 2007 WL 5061697, at *4-5 (C.D. Cal. Dec. 3, 2007) (allowing claims under Canadian law for copyright infringement to go forward); Frink Am., Inc. v. Champion Rd. Mach. Ltd., 961 F.Supp. 398, 404 (N.D.N.Y. 1997) (same); Armstrong v. Virgin Recs., Ltd., 91 F.Supp.2d 628, 637 (S.D.N.Y. 2000) (discussing the issue); see generally NIMMER, 3 NIMMER ON COPYRIGHTS §17.03; GOLDSTEIN, 3 GOLDSTEIN ON COPYRIGHTS § 16.2.
The Court finds this case is an appropriate one to adjudicate FFS's Canadian law claims for three reasons. First, unlike foreign patent or trademark claims, which often implicate passing judgment on the actions of foreign governmental authorities, “in adjudicating an infringement action under a foreign copyright law there is no need to pass upon the validity of acts of foreign government officials since foreign copyright laws, by and large, do not incorporate administrative formalities which must be satisfied to create or perfect a copyright.” New Name, Inc., 2007 WL 5061697, at *5 (cleaned up; quoting London Film Prods. Ltd. v. Intercontinental Commc'ns, Inc., 580 F.Supp. 47, 49 (S.D.N.Y. 1984). Indeed, the Canadian copyright infringement claims here are for the infringement in Canada of FFS's American copyrights, which Canada is obligated to honor and legally protect under the terms of the Berne Convention. See Frink Am., 961 F.Supp. at 404. “Therefore, no ‘act of state' is called into question here.” London Film Prods. Ltd. 580 F.Supp. at 49.
For example, as the Second Circuit observed in affirming a district court's declining to adjudicate a Canadian trademark infringement claim:
We do not think it the province of United States district courts to determine the validity of trademarks which officials of foreign countries have seen fit to grant. To do so would be to welcome conflicts with the administrative and judicial officers of the Dominion Canada.Vanity Fair Mills, Inc. v. T. Eaton, Ltd., 234 F.2d 633 (2d Cir.) cert. denied, 352 U.S. 871, 77 S.Ct. 96, 1 L.Ed.2d 76 (1956).
Second, the foreign law claims are not complicated. Canadian copyright law is very similar to that of the United States and is quite straightforward. Canadian law is also written in English, and thus the difficulties that can arise from translations of foreign law into English are not present.
It is thus not unusual for United States courts to adjudicate Canadian copyright infringement claims. E.g., New Name, Inc. 2007 WL 5061697, at *4-5; Frink Am., Inc., 961 F.Supp. at 404.
Third, international copyright piracy - particularly of materials distributed online - is a growing problem. Providing American copyright owners a domestic forum where they can have all of their claims against international copyright pirates adjudicated promotes both the rule of law and judicial economy (as opposed to requiring such copyright owners to file repetitive lawsuits all over the world in order to obtain relief).
As required by the Berne Convention, Canadian law protects copyrights of “treaty countries” from infringement in Canada. Because the United States is a “treaty country” under the Canadian Copyright Act, FFS's United States copyrights in the Works in Suit are protected under Canadian law from infringement in Canada. See Frink Am., Inc. v. Champion Rd. Mach. Ltd., 961 F.Supp. 398, 404 (N.D.N.Y. 1997).
Canadian Copyright Act, R.S.C., 1985, c. C-42 (hereinafter, the “CCA § x”), § 2 (definition of “treaty country”).
Each of the Works in Suit is a “cinematographic work” under the Canadian Copyright Act. See CCA § 2 (definition of “cinematographic work”). Each distribution by TWC of a copy of a Work in Suit to anyone in Canada (including to those Canadian TWC subscribers listed on Exhibit 3 to FFS's Complaint, and to the actual or potential Canadian customers of such subscribers) infringed FFS's copyright. See CCA §§ 27(1), 27(2), 34(1).
By virtue of the FFS copyright management information on copies of Works in Suit, and TWC's knowledge that it actually had no license from FFS, TWC knew or should have known that its sales, rentals, and distributions of copies of each Work in Suit in Canada infringed FFS's copyrights in such works. See CCA § 27(2); see also CCA § 34.1(2)(c).
By virtue of the FFS copyright management information on each copy of a Work in Suit, and TWC's knowledge that it had no license from FFS, TWC's export of copies of the Works in Suit (including by uploading to YouTube in the United States) were done with TWC knowing or should have known that such was without FFS's consent. See CCA § 27(2.11).
DMCA § 1202(a) Violations. Section 1202(a) of the Digital Millennium Copyright Act prohibits the knowing provision or distribution of false copyright management information, with the intent to induce, enable, facilitate, or conceal copyright infringement. 17 U.S.C. § 1202(a).
Such violations are shown on this default record. The copies TWC knowingly distributed to its subscribers added an AgentWebOnline logo, which falsely represented that AgentWebOnline was the author or writer, performer, or director of the video. See Recif Res., LLC v. Juniper Cap. Advisors, L.P., No. CV H-19-2953, 2020 WL 5739138, op. at *10-11 (S.D. Tex. Sept. 24, 2020) (company logo can be copyright management information). TWC knew that was false because TWC knew it was not the author or writer, performer, or director of the video, but had instead pirated it from FFS. ECF No. 1, ⁋⁋ 64-65. Such copies (except for FFS videos 96 and 106) also included the legend FFS included on licensed copies of the work, identifying them as licensed copies. That legend was also copyright management information, and when distributed by TWC on unlicensed copies it was literally false. Again, TWC knew it did not have any license from FFS to reproduce and distribute these materials, and thus knew that representation was false. TWC distributed this false copyright management information in order to facilitate and conceal its infringement of FFS's copyrights. ECF No. 1, ⁋⁋ 59-60.
C. Remedies
Actual Damages (US Copyright Law). Under 17 U.S.C. § 504(b), FFS is entitled to recover its actual damages for infringements committed in the United States (in whole or in part).
According to the expert declaration of Dr. Matthew Dunn, the market rate for a license of an “explainer” video for a business website of $30 / month. FFS thus calculates its actual damages as follows:
1. The market rate is $30 / month per video.
2. TWC would have had to purchase licenses from FFS for each of the works in suit for itself and for each of its known subscribers (total: 15 parties).
3. Such licenses would have had to be purchased for each of the 163 Works in Suit.
4. TWC and its subscribers used the Works in Suit for at least 36 months before this case was filed.
5. Therefore, 15 x $30 x 163 x 36 = $2,640,600.
The court finds this calculation of actual damages is appropriate, and awards FFS that amount for acts of copyright infringement committed in the United States.
Statutory Damages (Canadian Law). Canadian Law entitled FFS to recover statutory damages of not less that CA$500 and not more than CA$20,000 for each Work in Suit that has been infringed in Canada. CCA § 27(2.11). The Court finds that an award on the high end of this range (CA$15,000 / work) is appropriate, for a total award of CA$2,445,000 for 163 works. According to the 2023 Q3 exchange rates listed by the Treasury Department (https://fiscaldata.treasury.gov/currency-exchange-rates-converter/), the current official rate is CA$1.343 = US$1.00, and FFS is awarded US$1,820,551.01 for acts of copyright infringement committed in Canada.
Statutory Damages (DMCA § 1202(a)). In addition to any award for copyright infringement, the DMCA provides for statutory damages of between $2,500 and $25,000 per violation of DMCA § 1202. 17 U.S.C. § 1203(c)(3)(B). FFS has conservatively calculated the number of DMCA § 1202(a) violations as one for each Work in Suit distributed to each of TWC's documented subscribers (all such distributions occurring at least partially in the United States due to TWC's use of YouTube servers in this country) as follows:
14 x 163 = 2,282
At the statutory minimum of $2,500 per violation, FFS is awarded $5,705,000 for DMCA § 1202(a) violations.
Permanent Injunctive Relief. A party seeking permanent injunction must establish (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the permanent injunction will not disserve the public interest. eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).
FFS requests a permanent injunction against TWC and parties in privity with it “from reproducing, distributing, or displaying copies or derivatives of any of the Works in Suit, or facilitating others to do so.” FFS asserts that while TWC took down its YouTube channel shortly after it was served with process in this case, there is nothing stopping it from reactivating it (or relaunching it on a different platform) and continuing to pirate FFS's copyrighted works, in direct competition with FFS's licensing of the Works in Suit to customers, causing irreparable harm that cannot be adequately compensated by damages. See Avus Holdings, 2022 WL 4099748, at **8-9; see also Preston Wood & Assocs., LLC v. Cameron Architects, Inc., No. CV H-16-1427, 2018 WL 8732108, at *3 (S.D. Tex. Nov. 8, 2018) (entering permanent injunction). Furthermore, as did the plaintiff in Avus Holdings, FFS argues that TWC's refusal to engage in this litigation weakens Plaintiffs ability to enforce its intellectual property rights, and that the balance of hardships favors entry for a permanent injunction because FFS should not be punished for TWC's failure to participate in this litigation. Finally, because public policy favors protection of intellectual property rights, FFS argues that a permanent injunction, in this case, will serve public interests. As it did in Avus Holdings, this Court agrees with FFS and grants its request to permanently enjoin TWC and parties in privity with it from any further reproduction, distribution, or displays of copies or derivatives of any of the Works in Suit, or facilitating others to do so.
IV. RECOMMENDATION
For the above reasons, it is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that, based on the foregoing analysis of the facts and legal principles, Plaintiff's Motion for Entry of Default Judgment (ECF No. 14) be GRANTED.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that it be ORDERED, ADJUDGED AND DECREED that:
• Defendant TWC committed acts of copyright infringement in the United States, and is liable for actual damages in the amount of $2,640,600 to Plaintiff.
• Defendant TWC committed acts of copyright infringement in Canada, and is liable for statutory damages in the amount of CA$2,445,000 (US$1,820,551.01) to Plaintiff.
• Defendant TWC violated DMCA § 1202(a) at least 2,282 times, and is liable for statutory damages in the amount of $5,705,000 to Plaintiff.
• Defendant TWC is also liable to Plaintiff for costs of court and postjudgment interest at the legal rate.
• Defendant TWC and all parties in privity with it are hereby PERMANENTLY ENJOINED from any further reproduction, distribution, or displays of copies or derivatives of any of the Works in Suit identified in the attached Exhibit 1 to FFS's
Complaint (ECF No. 1-1), or facilitating others to do so.
• Plaintiff is allowed such writs and processes necessary to enforce and collect this judgment.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that all relief not expressly granted herein is denied. It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that this be a final judgment.
V. OBJECTIONS
The parties may wish to file objections to this Report and Recommendation. Parties filing objections must specifically identify those findings or recommendations to which they object. The District Court need not consider frivolous, conclusive, or general objections. See Battle v. U.S. Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the District Court of the proposed findings and recommendations in the Report. See 28 U.S.C. § 636(b)(1)(C); Thomas v Arn, 474 U.S. 140, 150-53 (1985); Douglass v. United Servs. Auto. Ass 'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc). Except upon grounds of plain error, failing to object shall further bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the District Court. See 28 U.S.C. § 636(b)(1)(C); Thomas, 474 U.S. at 150-53; Douglass, 79 F.3d at 1428-29.