United States District Court, S.D. Indiana, Indianapolis Division
RICHARD N. BELL, Plaintiff,
KG AMERICAN REAL ESTATE HOLDINGS, LLC Defaulted 2/4/2016, Defendant.
RICHARD N. BELL, Plaintiff, represented by Richard N. Bell,
BELL LAW FIRM.
AMERICAN REAL ESTATE HOLDINGS, LLC, Defendant, Pro Se.
MAGNUS-STINSON, District Judge.
pending before the Court is Plaintiff Richard N. Bell's
Objection, [Filing No. 18], to the Magistrate Judge's
Report and Recommendation, [Filing No. 17], on Mr. Bell's
Motion for Default Judgment against Defendant KG American
Real Estate Holdings, LLC ("KG Real Estate"),
[Filing No. 11]. For the reasons set forth herein, the
Court overrules Mr. Bell's Objection, [Filing No. 18],
and adopts the Magistrate Judge's Report and
Recommendation in full, [Filing No. 17].
STANDARD OF REVIEW
district judge may designate a magistrate judge "to
conduct hearings, including evidentiary hearings, and to
submit... proposed findings of fact and recommendations for
the disposition." 28 U.S.C. Â§ 636(b)(1)(B); see
also Fed. R. Civ. Pro 72(b)(1). Any party may file an
objection to a magistrate judge's recommended disposition
within 14 days. 28 U.S.C. Â§ 636(b)(1); see also Fed.
R. Civ. Pro. 72(b)(2).
granting default judgment are dispositive. See, e.g.,
United States ex rel. Abner v. Jewish Hosp. Health Care
Servs., Inc., 2010 WL 723409, *2 (S.D. Ind. 2010)
(reviewing de novo a magistrate judge's
recommendation regarding a motion for default judgment, since
it "constitutes a dispositive matter"). If a timely
objection is made, the Court must conduct a de novo
review and "may accept, reject, or modify the
recommended disposition; receive further evidence; or return
the matter to the magistrate judge with instructions."
Fed. R. Civ. Pro. 72(b)(3). While the Court is required to
make "a de novo determination... a de
novo hearing is not required." Pinkston v.
Madry, 440 F.3d 879, 893 (7th Cir. 2006) (citing
United Stated v. Raddatz, 447 U.S. 667, 674 (1980));
see also Goffman v. Gross, 59 F.3d 668, 671
(7th Cir. 1995) ("But this de novo
determination is not the same as a de novo hearing.
The district court is not required to conduct another hearing
to review the magistrate judge's findings or credibility
determinations."). Instead, if the Court is satisfied
with the magistrate judge's findings and recommendations,
even with regard to credibility determinations, "it may
in its discretion treat those findings and recommendations as
its own." Goffman, 59 F.3d at 671; see
also 28 U.S.C. Â§ 636(b)(1) (the Court "may accept,
reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate judge").
September 9, 2015, Mr. Bell filed a Complaint against KG Real
Estate in this Court, alleging claims for copyright
infringement and unfair competition with regard to a
photograph he took of the downtown Indianapolis skyline (the
"Photo"). [Filing No. 1.] KG Real Estate never
answered Mr. Bell's Complaint or otherwise defended
itself in this litigation, and Clerk's Entry of Default
was entered against it on February 4, 2016. [Filing No. 10.]
April 11, 2016, Mr. Bell filed a Motion for Default Judgment,
requesting "at least $150, 000 in statutory damages plus
$1, 417.50 in attorney's fees and costs" in his
favor. [Filing No. 11; Filing No. 12 at 1.] Mr. Bell also
asked for declaratory and injunctive relief against KG Real
Estate. [Filing No. 11 at 2.] The Court referred that motion
to the assigned Magistrate Judge pursuant to 28 U.S.C. Â§
636(b)(1)(B). [Filing No. 13.]
Magistrate Judge held an evidentiary hearing on Mr.
Bell's Motion for Default Judgment on June 29, 2016.
[Filing No. 16.] Mr. Bell appeared in person, presented
evidence, and made arguments. [Filing No. 16.] KG Real Estate
failed to appear, despite Mr. Bell serving it with notice of
the hearing as ordered by the Magistrate Judge. [Filing No.
14; Filing No. 15; Filing No. 16.] At the hearing, Mr. Bell
withdrew his request for an injunction because KG Real Estate
had removed the Photo from its website, and he also withdrew
his request for attorney's fees because he is
representing himself. [Filing No. 17 at 3.] Mr. Bell
maintained his request for declaratory relief, seeking a
declaration that he is the lawful owner of the copyright of
the Photo and that KG Real Estate has no rights to the Photo.
[Filing No. 17 at 3.] The Magistrate Judge took the matter
under advisement. [Filing No. 16.]
22, 2016, the Magistrate Judge issued her Report and
Recommendation. [Filing No. 17.] She found that KG Real
Estate's liability for violating federal copyright law
was established by the entry of default based on the factual
allegations in Mr. Bell's Complaint. [Filing No. 17 at
1-3.] Specifically, Mr. Bell is the owner of the copyright of
the Photo and it was registered with the United States
Copyright Office in August 2011. [Filing No. 17 at 2.]
Sometime in 2015, KG Real Estate began using the Photo on its
business website to market its real estate services in
Indianapolis. [Filing No. 17 at 2.] Mr. Bell never authorized
KG Real Estate to use the Photo and KG Real Estate never paid
a licensing fee to use the Photo. [Filing No. 17 at 2.]
Magistrate Judge recommended that the Court decline to
exercise its power under the Declaratory Judgment Act to
issue declaratory relief because KG Real Estate has never
claimed any rights to the photo and, by defaulting, has
admitted Mr. Bell's allegations regarding his ownership.
[Filing No. 17 at 3-4 (citing Bell v. Taylor, 827
F.3d 699 (7th Cir. 2016)).] As for the amount of statutory
damages to which Mr. Bell is entitled, the Magistrate Judge
found that his "request for the maximum award [of $150,
000] is not justified by the evidence he offered-not even
close." [Filing No. 17 at 4.] The Magistrate Judge found
that Mr. Bell's Complaint "minimally alleges
sufficient facts to fall within the definition of
willfulness, but Mr. Bell did not offer additional evidence
at the hearing to suggest KG Real Estate's actions were
particularly egregious." [Filing No. 17 at 5.] To
support that conclusion, the Magistrate Judge found as
Mr. Bell stated he had had several conversations with KG Real
Estate and KG Real Estate removed the Photo from its website,
but the parties were not able to agree on a resolution of the
lawsuit. Mr. Bell stated KG Real Estate had said things that
led Mr. Bell to believe KG Real Estate knew it should not
have used the Photo on its website, but Mr. Bell did not
describe what KG Real Estate had said. Instead, Mr. Bell
asserted generally that everyone should know that unless he
specifically has paid for a license or obtained permission
from an owner, no photograph can be used on a website without
that use constituting willful copyright infringement. The
court is not willing to accept such a generalized view of
willfulness that is not based on the specific circumstances
surrounding a particular infringement. For example, there is
no evidence here whether KG Real Estate even created the
website or played any role in selecting the Photo for use on
its website; it may have hired others to build the website
and populate its content. There is no evidence about how long
the Photo appeared on the ...