Wareka v. Tovar et al

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WO
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
Tamara Wareka,
Plaintiff,
v.
Priscilla Tovar LLC, et al.,
Defendants.
No. CV-25-00323-TUC-AMM (MSA)
REPORT AND
RECOMMENDATION
Pending before the Court is Plaintiff Tamara Wareka’s motion for default judgment.
The motion was served on Defendants Priscilla Tovar LLC and Priscilla Tovar, but neither
responded and the time for doing so has expired. For the following reasons, the Court will
recommend that the motion be granted.
Background
The Clerk of Court entered Defendants’ defaults on December 18, 2025. (Doc. 25.)
Therefore, all “well-pled allegations in the complaint regarding liability are deemed true.”
Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002) (citing Geddes v. United
Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)). The first amended complaint
contains the following allegations:
Plaintiff is a freelance photographer specializing in beauty and fashion photography.
(Doc. 19, ¶ 11.) She is the sole author and exclusive rights holder to a close-up photograph
of a blue-eyed model with a blonde strand of hair in front of her face (the Photograph).
(Id. ¶ 15.) The Photograph as originally published bears Plaintiff’s watermark, which is
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Plaintiff’s Instagram handle. (Id. ¶¶ 14, 16 & Ex. A.) Plaintiff has registered the Photograph
with the U.S. Copyright Office. (Id. ¶¶ 18–19 & Ex. B.)
On January 1, 2025, Plaintiff discovered that the Photograph had been copied and
published on Defendants’ Instagram Account with the words “7 Facts About Your Lips”
added to the image. (Id. ¶¶ 29–30 & Ex. D.) Plaintiff’s watermark had been partially
cropped out, and the uncropped part had been blurred so as to be unreadable. (Id. ¶¶ 31–32
& Ex. D.) Plaintiff has never granted Defendants a license or other permission to use the
Photograph in any manner. (Id. ¶ 33.) Plaintiff’s counsel contacted Defendants to resolve
the issue informally, but the parties did not reach an agreement. (Id. ¶ 38.)
In this lawsuit, Plaintiff brings claims for copyright infringement and for removal
of copyright management information. (Id. ¶¶ 39–51.) She seeks statutory damages, as well
as her costs and attorney’s fees. (Id. at 10–11.) She seeks to hold Defendants jointly and
severally liable for these amounts. (Id. ¶ 28.) Following entry of Defendants’ defaults,
Plaintiff filed the currently pending motion for default judgment. (Doc. 26.)
Discussion
There are three steps in the default judgment analysis. The Court must confirm that
it has subject matter and personal jurisdiction. In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999).
The Court must then decide whether default judgment is proper under the factors set forth
in Eitel v. McCool, 782 F.2d 1470 (9th Cir. 1986). If default judgment is proper, the Court
must then determine the plaintiff’s damages. Each issue is addressed in turn.
I. Jurisdiction
First, the Court has subject matter jurisdiction. Plaintiff’s first claim is for copyright
infringement under 17 U.S.C. § 501; her second is for removal of copyright management
information under 17 U.S.C. § 1202. (Doc. 19, ¶¶ 39–51.) These claims give the Court
subject matter jurisdiction under both 28 U.S.C. § 1331 and § 1338(a).
Second, the Court has personal jurisdiction. “Serving a summons or filing a waiver
of service establishes personal jurisdiction over a defendant . . . who is subject to the
jurisdiction of a court of general jurisdiction in the state where the district court is located.”
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Fed. R. Civ. P. 4(k)(1)(A). Under this rule, the district court assesses personal jurisdiction
under the long-arm statute of the forum state. Harrington v. Cracker Barrel Old Country
Store, Inc., 142 F.4th 678, 686 (9th Cir. 2025). Arizona allows the exercise of jurisdiction
“to the maximum extent permitted by . . . the United States Constitution,” Ariz. R. Civ.
P. 4.2(a), such that “the jurisdictional analyses under state law and federal due process are
the same.” Herbal Brands, Inc. v. Photoplaza, Inc., 72 F.4th 1085, 1089 (9th Cir. 2023)
(quoting Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir. 2004)).
Defendant Priscilla Tovar is an Arizona resident who was personally served with
the summons while in Arizona. (Doc. 19, ¶ 7; Doc. 23.) Personal service on a defendant
who is physically present in the forum state establishes personal jurisdiction. Burnham v.
Marin Cnty. Super. Ct., 495 U.S. 604, 619 (1990). Defendant Priscilla Tovar LLC, an entity
formed under Arizona law, filed a waiver of service. (Doc. 16; Doc. 19, ¶ 6.) For a business
entity, the place of formation and principal place of business are “paradigm” forums for
the exercise of jurisdiction. Daimler AG v. Bauman, 571 U.S. 117, 137 (2014). Thus, the
Court has personal jurisdiction over both Defendants.
II. Eitel Factors
The U.S. Court of Appeals for the Ninth Circuit has identified seven factors relevant
to whether a default judgment should be granted. Eitel v. McCool, 782 F.2d 1470, 1471–72
(9th Cir. 1986). Most favor granting a default judgment here.
The first factor is “the possibility of prejudice to the plaintiff.” Id. at 1471. “This
factor weighs in favor of default judgment ‘when a defendant has failed to appear or defend
against a suit, and the plaintiffs could not otherwise seek relief.’” Alameda Elec. Distribs.,
Inc. v. Eco Eng’g Inc., 808 F. Supp. 3d 1014, 1028 (N.D. Cal. 2025) (quoting Vietnam
Reform Party v. Viet Tan-Vietnam Reform Party, 416 F. Supp. 3d 948, 962 (N.D. Cal.
2019)). Plaintiff argues that that is the case here, and the Court agrees. (Doc. 26 at 8.)
The second factor is “the merits of plaintiff’s substantive claim,” and the third is
“the sufficiency of the complaint.” Eitel, 782 F.2d at 1471. “These two factors are often
analyzed together and require courts to consider whether a plaintiff has ‘state[d] a claim on
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which [it] may recover.’” Vietnam Reform Party, 416 F. Supp. 3d at 962 (alterations in
original) (quoting PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal.
2002)).
Plaintiff’s first claim is for copyright infringement. (Doc. 19, ¶¶ 39–46.) This claim
has two elements: (1) “ownership of the allegedly infringed material,” and (2) violation of
“at least one exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M
Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir. 2001). Plaintiff alleges that
she owns the Photograph, and her complaint includes the certificate of registration issued
by the U.S. Copyright Office. (Doc. 19, ¶¶ 15, 18–19 & Ex. B.) This meets the first element.
See United Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 1257 (9th Cir. 2011)
(stating that “[a] copyright registration is ‘prima facie evidence of the validity of the
copyright and the facts stated in the certificate’” (quoting 17 U.S.C. § 410(c))). As the
owner of the Photograph, Plaintiff has the exclusive right to display it publicly. 17 U.S.C.
§ 106(5). Plaintiff alleges, however, that Defendants displayed the Photograph on their
Instagram account without permission. (Doc. 19, ¶¶ 29–38.) Thus, Plaintiff has stated a
claim for copyright infringement.
Plaintiff’s second claim is for removal of copyright management information.
(Doc. 19, ¶¶ 47–51.) The statute provides that “[no] person shall, without the authority of
the copyright owner or the law . . . intentionally remove or alter any copyright management
information.” 17 U.S.C. § 1202(b)(1). Plaintiff alleges that the original Photograph has her
watermark on it and that, in the infringing post, Defendants partially cropped out the
watermark and blurred out the remainder. (Doc. 19, ¶¶ 14–17, 31–32 & Ex. E.) She further
alleges that she never gave Defendants permission to do so. (Id. ¶ 33.) These allegations
state a claim for intentional removal of Plaintiff’s copyright management information
without permission.
Given the foregoing, the second and third Eitel factors favor default judgment.
The fourth Eitel factor is “the sum of money at stake in the action.” Eitel, 782 F.2d
at 1471. “Default judgment is disfavored where the sum of money at stake is too large or
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unreasonable in relation to defendant’s conduct.” Amazon Content Servs. LLC v. DeBarr,
793 F. Supp. 3d 1242, 1253 (C.D. Cal. 2025) (quoting Vogel v. Rite Aid Corp., 992 F.
Supp. 2d 998, 1012 (C.D. Cal. 2014)). On Plaintiff’s first claim, the Court can award
between $750 and $30,000 in statutory damages. 17 U.S.C. § 504(c)(1). If the infringement
was willful, the maximum goes up to $150,000. Id. § 504(c)(2). On her second claim, the
Court can award between $2,500 and $25,000 in statutory damages. Id. § 1203(c)(3)(B).
In addition, the Court has discretion to award attorney’s fees and costs. Id. § 505. Plaintiff
has adequately alleged that the infringement was willful, so Defendants face a maximum
damages award of $175,000 not including fees and costs. Plaintiff, however, seeks only
$25,910. The Court finds that this amount is not excessive and that it is proportional to
Defendants’ conduct. This factor favors default judgment.
The fifth Eitel factor is “the possibility of a dispute concerning material facts.” Eitel,
782 F.2d at 1471–72. “Where a plaintiff has filed a well-pleaded complaint, the possibility
of dispute concerning material facts is remote.” DeBarr, 793 F. Supp. 3d at 1254 (quoting
Wecosign, Inc. v. IFG Holdings, Inc., 845 F. Supp. 2d 1072, 1082 (C.D. Cal. 2012)). As
explained above, Plaintiff has adequately pleaded her claims, and Defendants have
admitted them by not appearing. This factor favors default judgment.
The sixth Eitel factor is “whether the default was due to excusable neglect.” Eitel,
782 F.2d at 1472. The docket shows that Defendant Priscilla Tovar was served personally,
and that Defendant Priscilla Tovar LLC waived service through counsel. (Docs. 16, 23.)
Further, Plaintiff alleges that she communicated with Defendants prior to filing this lawsuit
in an effort to resolve the dispute informally. (Doc. 19, ¶ 38.) These facts demonstrate that
Defendants’ absence is willful and not the product of excusable neglect.
The seventh Eitel factor is “the strong policy underlying the Federal Rules of Civil
Procedure favoring decisions on the merits.” Eitel, 782 F.2d at 1472. While deciding a case
on the merits is the preference, doing so “is impossible where a party refuses to participate.”
Vietnam Reform Party, 416 F. Supp. 3d at 970. As such, this factor weighs against default
judgment only marginally.
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* * *
The Eitel factors favor entry of a default judgment.
III. Damages
A default does not result in the admission of the plaintiff’s damages allegations.
TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (per curiam)
(quoting Geddes v. United Fin. Grp., 559 F.2d 557, 560 (9th Cir. 1977) (per curiam)).
Thus, a plaintiff seeking a default judgment for money damages ordinarily must prove its
damages with admissible evidence. See NewGen, LLC v. Safe Cig, LLC, 840 F.3d 606, 617
(9th Cir. 2016). Under the Copyright Act, though, a plaintiff may elect to recover statutory
damages in lieu of actual damages. 17 U.S.C. §§ 504(c), 1203(c). Here, Plaintiff has elected
statutory damages, and the only question is whether the requested amount is reasonable.
See 17 U.S.C. §§ 504(c), 1203(c) (authorizing damages in an amount “the court considers
just”).
On her first claim, Plaintiff seeks $19,400, which is double the rate she has charged
for licensing out comparable work in the past. (Doc. 26-1, ¶¶ 29–33 & Ex. D.) Other courts
have used this method to calculate damages under the Copyright Act. See Martinka v. New
Thaitown USA, Inc., No. 24-cv-06072, 2024 WL 5316224, at *7 (C.D. Cal. Dec. 4, 2024)
(awarding statutory damages in an amount equal to the usual licensing fee times three).
The Court finds that a multiplier of two is reasonable in this case, especially considering
the willfulness of Defendants’ infringement. On her second claim, Plaintiff seeks the
statutory minimum of $2,500. (Doc. 26-1, ¶ 34.) This amount is mandatory. 17 U.S.C.
§ 1203(c)(3)(B) (providing for damages in an amount “of not less than $2,500”).
Plaintiff also requests costs and attorney’s fees, which are awardable in the district
court’s discretion. Id. § 505. The costs include the $405 filing fee for this case and $680
incurred to serve Defendants. (Doc. 26-1, ¶¶ 39–42 & Exs. F, G.) Counsel’s fees total
$2,925, reflecting 7.8 hours of work at a rate of $375 per hour. (Id. ¶¶ 37–38 & Ex. E.)
These figures are reasonable and supported by evidence in the record. The Court finds that
they should be awarded.
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Conclusion
The Court recommends that Plaintiff Tamara Wareka’s motion for default judgment
(Doc. 26) be granted; that a default judgment be entered against Defendants Priscilla
Tovar LLC and Priscilla Tovar jointly and severally in the amount of $25,910 (comprised
of $21,900 in statutory damages, $1,085 in costs, and $2,925 in attorney’s fees); and that
Plaintiff be awarded post-judgment interest at the current rate.
This recommendation is not immediately appealable to the United States Court of
Appeals for the Ninth Circuit. The parties have 14 days to file specific written objections
with the district court. Fed. R. Civ. P. 72(b)(2). The parties have 14 days to file responses
to objections. Id. The parties may not file replies on objections absent the district court’s
permission. A failure to file timely objections may result in the waiver of de novo review.
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Dated this 16th day of April, 2026.
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