Farrington v. Fingerlakes1.com Inc.

DECISION AND ORDER INTRODUCTION Plaintiff William Farrington brings this action against Defendant Fingerlakes1.com, Inc. ECF No. 1. Plaintiff alleges claims for copyright infringement and violation of the Digital Millennium Copyright Act (“DMCA”). Id. Plaintiff moves for default judgement against Defendant. ECF No. 11. For the following reasons, Plaintiff’s motion is GRANTED. BACKGROUND I. Procedural History On November 4, 2019, Plaintiff filed an Affidavit of Service stating that Defendant had been served with the summons, civil cover sheet, and Complaint on that same date. ECF No. 5.¹ Defendant’s responsive pleading was due by November 25, 2019. Id.; see Fed. R. Civ. P. 12(a)(1)(A). No responsive pleading was filed and no other substantive action was taken in this matter² until the Court issued an Order to Show Cause (“OTSC”) on July 29, 2020 requiring Plaintiff to show cause by August 31, 2020 why the case should not be dismissed for failure to prosecute. ECF No. 7. The Court warned that “[f]ailure to comply…w[ould] result in the dismissal of this action with prejudice pursuant to Federal Rule of Civil Procedure ["Rule"] 41(b) without further order of the Court.” Id. On August 28, 2020, Plaintiff filed a Request for Clerk’s Entry of Default, which was entered on August 31, 2020. ECF No. 9, 10. On August 31, 2020, Plaintiff moved “for default judgment in the amount of $5,000.00 in statutory damages under 17 U.S.C. §504(c); $5,000.00 in statutory damages under 17 U.S.C. §1203(c)(3)(B); $288.00 in attorney’s fees and $440.00 costs under 17 U.S.C. §505; and for such further relief as this Court deems just and proper.” ECF No. 11. On that same date, Plaintiff filed the “Declaration of Richard Liebowitz” in support of his request for default. ECF No. 12. On September 1, 2020, forty-two minutes after the deadline set by the Court, Plaintiff filed a response to the OTSC. ECF No. 14. II. Facts The following facts are taken from the complaint, unless otherwise noted. Plaintiff is a professional photographer who licenses his photographs to online and print media for a fee. ECF No. 1 5. Plaintiff photographed a politician, Marcus Molinaro, and licensed the photograph to the New York Post, which included the photograph in an article published on September 29, 2018. Id.