Pandvil LLC v. Pino

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Pandvil LLC,
Plaintiff,
v.
Jean Paul Chavez Pino,
Defendant.
No. CV-24-03216-PHX-MTL
ORDER
Before the Court are Plaintiff Pandvil LLC’s Amended Motion for Default
Judgment (Doc. 25) and Motion for Attorneys’ Fees (Doc. 21).
I.
As the Clerk of Court has entered default (Doc. 19), the Court takes the Complaint’s
factual allegations as true. See Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir.
1977). Plaintiff Pandvil LLC is an Arizona limited liability company with its principal
place of business in Scottsdale, Arizona.(Doc. 1 ¶¶ 1, 6.) As part of its business, Plaintiff
creates “Islands,” digital locations that are designed to be used in the video game Fortnite.
(Id. ¶¶ 6-8.) Fortnite pays developers revenue based on the number of users who use their
Island. (Id. ¶ 10.) Plaintiff created an Island with the ID number 6013-7804-4824 (the
“4824 Map”). (Id. ¶ 11.) In August 2024, among the Islands in the same genre, Plaintiff’s
Island was the most popular among the Islands in the same genre. (Id. ¶ 13.) It generated
approximately $52,000 in revenue for Plaintiff during that month. (Id. ¶¶ 11-13.)
Defendant Jean Paul Chavez Pino is an individual whose address is Alborada 3ra
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Etapa MZ bi solar 2, Guayaquil, Ecuador. (Id. ¶ 2.) He also creates Islands for Fortnite.
(Id. ¶¶ 2, 12.) On or about October 1, 2024, Defendant filed a Digital Millennium Copyright
Act takedown notice with Fortnite, alleging the 4824 Map infringed on his copyright. (Id.
¶ 14.) Plaintiff alleges that Defendant’s notice was incomplete, inaccurate, and untrue, and
that Defendant knew it was improper when he submitted it. (Id. ¶¶ 15, 17). Fortnite
removed access to the 4824 Map from October 1 to October 17. (Id. ¶¶ 18, 20.) When the
4824 Map was reinstated, it reached approximately one-sixth the number of players it had
before the takedown. (Id. ¶ 22.)
Plaintiff initiated this action, alleging Defendant filed a false takedown notice to
increase his own revenue and cause financial harm to Plaintiff in violation of 17 U.S. § 512.
(Id. ¶¶ 6-30.) Plaintiff further alleges tortious interference of Plaintiff’s contract with
Fortnite. (Id. ¶¶ 31-48.) Plaintiff served Defendant but failed to appear or otherwise
respond to the Complaint. (Doc. 17.) The Clerk of Court entered default against Defendant
Jean Paul Chavez Pino. (Doc. 19.) Plaintiff moved for default judgment against Defendant
pursuant to Rule 55(b)(2) of the Federal Rules of Civil Procedure. (Doc. 22.) The Court
denied the motion without prejudice because it did not provide a sufficient explanation as
to why the Court has personal jurisdiction over Defendant. (Doc. 24.) Plaintiff filed an
Amended Motion for Default Judgment. (Doc. 25.)
II.
The Court has reviewed the Amended Motion for Default Judgment and the entire
record. Jurisdiction and venue are proper. The Court also finds that Plaintiff has satisfied
all service of process and notice requirements under the Federal Rules of Civil Procedure.
Plaintiff has also satisfied the conditions for the entry of default and the entry of a default
judgment under Rule 55(a) and (b).
. . . .
. . . .
. . . .
. . . .
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The Court has considered the factors set forth in Eitel v. McCool, 782 F.2d 1470,
1471-72 (9th Cir. 1986). The factors below are to be considered when deciding whether
default judgment is appropriate:
(1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s
substantive claim, (3) the sufficiency of the complaint, (4) the sum of money
at stake in the action[,] (5) the possibility of a dispute concerning material
facts[,] (6) whether the default was due to excusable neglect, and (7) the
strong policy underlying the Federal Rules of Civil Procedure favoring
decisions on the merits.
Id.
The first, fifth, and sixth factors weigh in Plaintiff’s favor. Denying default
judgment would leave Plaintiff without a remedy because Defendant chose not to appear
and defend this case. PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D.
Cal. 2002). The fifth factor also supports default judgment because “all well-pleaded facts
in the complaint are taken as true . . . [therefore] no genuine dispute of material facts would
preclude granting” the amended motion. Id. Additionally, the sixth factor warrants entering
default judgment because Defendant was properly served under Federal Rule of Civil
Procedure 4(e)(1) and Arizona Rule of Civil Procedure 4.1(k). (Doc. 17.) See Twentieth
Century Fox Film Corp. v. Streeter, 438 F. Supp. 2d 1065, 1071-72 (D. Ariz. 2006) (finding
that a defendant’s failure to answer is likely not a result of excusable neglect if the
defendant is served properly).
The second and third Eitel factors, the merits of the claim and the sufficiency of the
complaint, are often “analyzed together and require courts to consider whether a plaintiff
has stated a claim on which [he] may recover.” Viet. Reform Party v. Viet Tan-Vietnam
Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal. 2019) (citation modified). The
Complaint provides that Defendant violated 17 U.S.C. § 512(f) by filing a false and
improper DMCA takedown notice claiming that Plaintiff was infringing upon Defendant’s
copyright. (Doc. 1 at 2-5.) “[T]o state a claim for misrepresentation under § 512(f),
Plaintiff[] must allege that Defendant ‘knowingly and materially misrepresent[ed]’ that
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copyright infringement has occurred, that [the service provider] ‘relied’ on such
misrepresentations, and that Plaintiff[] [has] been ‘injured’ as a result.” Automattic Inc. v.
Steiner, 82 F. Supp. 3d 1011, 1026 (N.D. Cal. 2015). The complaint provides that
Defendant’s takedown notice was “incomplete, inaccurate, and untrue” and did not contain
any information showing that Defendant had a copyright or ownership interest in the
allegedly infringing material. (Id. at 3-4.). The complaint also provides that the Defendant
knew his notice was improper when he submitted it. (Id. at 4.) The complaint further
provides that, as a result of this notice, Fortnite removed the 4824 Map from Oct. 1 to Oct.
17, causing a loss in revenue as a result of the downtime itself as well as the subsequent
loss in player volume. (Id.) The Court finds that these facts demonstrate that Defendant
knowingly and materially misrepresented that copyright infringement has occurred, that
the service provider relied on such misrepresentations, and Plaintiff has been injured as a
result. Plaintiff has therefore sufficiently alleged entitlement to relief on the merits, and the
second and third Eitel factors weigh in Plaintiff’s favor.
Under the fourth factor, the Court considers the amount of money at stake related to
the seriousness of Defendant’s conduct. See PepsiCo, Inc., 238 F. Supp. 2d at 1176. “If the
sum of money at stake is completely disproportionate or inappropriate, default judgment is
disfavored.” Streeter, 438 F. Supp. 2d at 1071. Plaintiff seeks $501,000 in actual damages
pursuant to 17 U.S.C. § 512(f), which authorizes the recovery of “any damages” related to
a knowingly material misrepresentation of infringement under the statute. (Doc. 22 at 7);
Yelp Inc. v. Catron, 70 F. Supp. 3d 1082, 1100. Plaintiff also filed a Motion for Attorneys’
Fees and Costs seeking $6,000 in attorney fees and $3,977.54 in costs pursuant to 17 U.S.C.
§ 505. (Doc. 21.) Plaintiff further seeks interest at the statutory rate on all the above
amounts pursuant to 28 U.S.C. § 1961. (Doc. 22 at 7.) The Court finds the requested
damages reasonable given Defendant’s conduct. The Court also finds that the requested
attorneys’ fees are reasonable given the needs associated with prosecuting this case. As a
result, the fourth Eitel factor weighs in Plaintiff’s favor, and the Court will grant Plaintiff’s
Motion for Attorneys’ Fees and Costs (Doc. 21).
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As the Federal Rules of Civil Procedure favor a decision on the merits, the seventh
factor generally weighs against default judgment, but the existence of Rule 55(b) “indicates
that ‘this preference, standing alone, is not dispositive.’” PepsiCo, Inc., 238 F. Supp. 2d at
1177 (quoting Kloepping v. Fireman’s Fund, No. C 94-2684 TEH., 1996 WL 75314, at *3
(N.D. Cal. Feb. 13, 1996)). This factor is not sufficient on its own to preclude an entry of
default judgment.
Upon weighing all the Eitel factors, the Court finds that Plaintiff has a right to
default judgment. Having closely considered Plaintiff’s submissions concerning the
applicable statutes of limitation, the Court finds that certain damages are recoverable.
III.
Having considered the Motion for Attorneys’ Fees and Costs, the Court finds as
follows.
Plaintiff is entitled to recover a reasonable award of attorneys’ fees under the
DMCA. 17 U.S.C. § 512(f); Automattic, 82 F. Supp. 3d at 1032. “To determine a
reasonable award of attorneys' fees, courts employ the ‘lodestar’ figure, which is calculated
by multiplying the number of hours reasonably expended on the litigation by the reasonable
hourly rate.” Id. The party seeking fees has the burden of submitting records establishing
that the number of hours requested is reasonable. Id. Once the compensable hours are set,
the district court then determines a reasonable hourly rate considering the experience, skill,
and reputation of the attorney requesting fees. Id. (citing Schwarz v. Sec’y of Health &
Hum. Servs., 73 F.3d 895, 908 (9th Cir. 1995)).
Plaintiff has submitted a Schedule of Fees and Costs outlining the tasks performed,
time spent, and person who performed the work. (Doc. 21-1 at 4-9.) This schedule shows
25.5 hours of work performed by an attorney and a paralegal. (Doc. 21-1 at 3-9.)
Aggregated across these two employees, Plaintiff’s request for $6,000 (less than half what
Plaintiff asserts it actually incurred in fees) in attorneys’ fees represents an hourly rate of
$235.29 per hour. The Court finds that this hourly rate is reasonable. See Gary v. Carbon
Cycle Arizona LLC, 398 F. Supp. 3d 468, 486 (D. Ariz. 2019) (finding a $325 hourly rate
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reasonable); Ramos v. Probuilds LLC, No. CV-23-01111-PHX-SMM (DMF), 2024 WL
1078078, at *6 (D. Ariz. Feb. 26, 2024) (“In the District of Arizona, Plaintiff’s counsel has
regularly been awarded a $350 to $395 hourly rate.”). The Court has also reviewed the
individual time entries and finds that they are satisfactory.
IT IS THEREFORE ORDERED that the Amended Motion for Default Judgment
(Doc. 25) is GRANTED.
IT IS FURTHER ORDERED that the Motion for Attorneys’ Fees and Costs
(Doc. 21) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff Pandvil LLC is awarded judgment
against Defendant Jean Paul Chavez Pino:
A. Entering a Default Judgment of $501,000, against Defendant and in favor of
Plaintiff.
B. Awarding attorneys’ fee in the amount of $6,000, plus costs in the amount of
$3977.54 pursuant to 17 U.S.C. § 505.
C. Awarding post judgment interest on the above amounts in accordance with
28 U.S.C. § 1961.
IT IS FINALLY ORDERED that the Clerk of Court must enter final judgment
consistent with this Order and close this case.
Dated this 25th day of March, 2026.
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