United States District Court, D. Columbia
December 12, 2005.
DIRECTV, INC., Plaintiff,
CARLTON AGEE, Defendant.
The opinion of the court was delivered by: RICARDO URBINA, District Judge
GRANTING THE PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AND
ASSESSING A CIVIL PENALTY AGAINST THE DEFENDANT
This matter comes before the court on the plaintiff's motion
for entry of default judgment. The plaintiff, Directv, Inc.
("DirectTV"), brings this action against the defendant, Carlton
Agee, alleging that the defendant purchased access cards and
other devices ("pirate access devices") to decrypt, receive and
view the plaintiff's encrypted satellite transmissions of
television programming, in violation of the Federal
Communications Act, 47 U.S.C. § 605(a) and the Electronic
Communications Privacy Act of 1986, 18 U.S.C. §§ 2510-2521
("federal communication laws"). Because the defendant has not
responded to the notice of default entered on August 8, 2005, the
court grants the plaintiff's motion to enter default judgment and
assesses a civil penalty in the amount of $2,091.57 against the
defendant. II. BACKGROUND
On November 12, 2004, the plaintiff, a direct broadcast
satellite company that provides satellite television programming
on a subscription and pay-per-view basis, filed a complaint
against the defendant alleging that on March 13, 2002, and again
on March 21, 2002, the defendant purchased "Scorpion Pro Plus Hu
Loaders," pirate access devices used for the unauthorized
decryption or interception of satellite transmissions. Compl. ¶¶
12-13. The complaint specifies two causes of action. Count one
alleges that the defendant received the plaintiff's satellite
transmissions without authorization, id. ¶ 16, and count two
alleges that the defendant intentionally intercepted, endeavored
to intercept, or procured other persons to intercept or endeavor
to intercept, the plaintiff's satellite transmissions in
violation of 18 U.S.C. § 2511(1)(a). Id. ¶ 20.
On November 17, 2004, the defendant received notice of the
plaintiff's complaint. Aff. of Service. The defendant, however,
failed to respond. On August 3, 2005, the plaintiff filed an
affidavit in support of default, stating that the defendant
failed to appear, that he had not filed any pleadings, and that
he had served no pleadings on the plaintiff's attorney. Aff. in
Supp. of Default at 1. The plaintiff subsequently moved for entry
of default,*fn1 and on August 12, 2005, the clerk of the court entered default against the defendant. Entry
of Default J. On September 16, 2005, the plaintiff brought a
motion for entry of default judgment against the defendant. Mot.
for Default J. The court now turns to that motion.
A. Legal Standard for Entry of Default Judgment Under Rule
A court has the power to enter default judgment when a
defendant fails to defend its case appropriately or otherwise
engages in dilatory tactics. Keegel v. Key West & Caribbean
Trading Co., 627 F.2d 372, 375 n. 5 (D.C. Cir. 1980). Rule 55(a)
of the Federal Rules of Civil Procedure provides for entry of
default "[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend as
provided by these rules." FED. R. CIV. P. 55(a). Upon request of
the party entitled to default, Rule 55(b)(2) authorizes the court
to enter against the defendant a default judgment for the amount
claimed and costs. FED. R. CIV. P. 55(b)(2).
Because courts strongly favor resolution of disputes on their
merits, and because "it seems inherently unfair" to use the
court's power to enter judgment as a penalty for filing delays,
default judgments are not favored by modern courts. Jackson v.
Beech, 636 F.2d 831, 835 (D.C. Cir. 1980). Accordingly, default
judgment usually is available "only when the adversary process
has been halted because of an essentially unresponsive party[,
as] the diligent party must be protected lest he be faced with
interminable delay and continued uncertainty as to his rights."
Jackson, 636 F.2d at 836 (quoting H.F. Livermore Corp. v.
Aktiengesellschaft Gebruder Loepfe, 432 F.2d 689, 691 (D.C. Cir.
1970)). Default establishes the defaulting party's liability for
the well-pleaded allegations of the complaint. Adkins v. Teseo,
180 F. Supp. 2d 15, 17 (D.D.C. 2001); Avianca, Inc. v. Corriea, 1992 WL 102999, at *1 (D.D.C.
Apr. 13, 1992); see also Brock v. Unique Racquetball & Health
Clubs, Inc., 786 F.2d 61, 65 (2d Cir. 1986). However, default
does not establish liability for the amount of damages claimed by
the plaintiff. Shepherd v. Am. Broad. Cos., Inc.,
862 F. Supp. 486, 491 (D.D.C. 1994), vacated on other grounds, 62 F.3d 1469
(D.C. Cir. 1995). Instead "unless the amount of damages is
certain, the court is required to make an independent
determination of the sum to be awarded." Adkins,
180 F. Supp. 2d at 17; see also Credit Lyonnais Secs. (USA), Inc. v.
Alcantara, 183 F.3d 151, 155 (2d Cir. 1999). The court has
considerable latitude in determining the amount of damages.
Jones v. Winnepesaukee Realty, 990 F.2d 1, 4 (1st Cir. 1993).
To fix the amount, the court may conduct a hearing. FED. R. CIV.
P. 55(b)(2). The court is not required to do so, however, "as
long as it ensure[s] that there [is] a basis for the damages
specified in the default judgment." Transatlantic Marine Claims
Agency, Inc. v. Ace Shipping Corp., Div. of Ace Young Inc.,
109 F.3d 105, 111 (2d Cir. 1997).
B. The Court Enters Default Judgment Against the Defendant
The defendant received service on November 17, 2004. Aff. of
Service. The defendant had until December 7, 2004 to respond to
the complaint. See id. (giving the defendant 20 days from the
date of service to answer the complaint). The defendant, however,
failed to respond by the deadline and has not taken any action
indicating an intent to defend this matter pending against him.
Although default judgment is not a favored course of action, the
defendant's wholesale disregard of the judicial process has left
the court with no alternative. Jackson, 636 F.2d at 835
(stating that although default judgments are not favored by the
courts, they are appropriate when the adversary process has been
halted because of an unresponsive party). Accordingly, the court grants the plaintiff's motion and enters
default judgment against the defendant. Id. at 836.
The defendant's default is an admission of liability for the
well-pleaded allegations of the complaint. Adkins,
180 F. Supp. 2d at 17; Int'l. Painters and Allied Trades Indus. Pension Fund
v. R.W. Amrine Drywall Co., Inc., 239 F. Supp. 2d 26, 30 (D.D.C.
2002) (citing Trans World Airlines, Inc. v. Hughes,
449 F.2d 51, 63 (3d Cir. 1971)). The complaint alleges that the defendant
twice purchased pirate access devices from an internet company
and received the devices by mail. Compl. ¶¶ 12-13. Moreover,
these devices, by design, are "primarily useful for the
unauthorized decryption or surreptitious interception of
satellite transmissions." Id. ¶¶ 12-14. The court, accordingly,
holds the defendant liable for the purchase of the pirate access
devices. The mere purchase of these devices, however, does not
violate either of the codes under which the plaintiff seeks
In order to recover under the statutes, the plaintiff asks the
court to assume that the purchase and possession of such devices
is sufficient to show illegal interception in violation of the
federal communication laws. Compl. ¶ 16. In support of this
position, the plaintiff cites cases in which the court held that
the possession of an instrument designed to intercept
communication is evidence that such communication was, in fact,
intercepted. DirecTV v. Cordona, 275 F. Supp. 2d 1357, 1362
(M.D. Fla. 2003) (inferring actual illegal interception of
signals in violation of 18 U.S.C. § 2511 from the possession of
pirate access devices); DirecTV v. Huynh, 318 F. Supp. 2d 1122,
1127 (M.D. Ala. 2004) (inferring actual interception of signals
in violation of 47 U.S.C. § 605 in similar circumstances).
Accordingly, the court draws the reasonable inference from the
pleadings that the devices were used for their intended purpose and, therefore, determines that the defendant is liable for
unauthorized interception of the plaintiff's satellite
transmissions in violation of 47 U.S.C. § 605. Au Bon Pain Corp.
v. Artect, Inc., 653 F.2d 61, 65 (2d Cir. 1981) (stating that
the plaintiff in a default judgment action is entitled to
reasonable inferences drawn from the evidence offered).
C. The Court Determines that the Defendant is Liable for
Having determined that the defendant is in violation of federal
communication laws, the court now turns to assess the damages for
which the defendant is liable. The plaintiff requests that the
court award damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II)
because the defendant violated 47 U.S.C. § 605(a). This civil
statute provides in relevant part that
[n]o person not being authorized by the sender shall
intercept any radio communication and divulge or
publish the existence, contents, substance, purport,
effect, or meaning of such intercepted communication
to any person. No person not being entitled thereto
shall receive or assist in receiving any interstate
or foreign communication by radio and such use (or
any information therein contained) for his own
benefit or for the benefit of another not entitled
47 U.S.C. § 605(a).
In addition, the plaintiff seeks to recover damages under
18 U.S.C. § 2520(c)(2)(B) as a consequence of the defendant's
violation of 18 U.S.C. § 2511(1)(a). This criminal
statute*fn2 provides punishment for anyone who wrongfully
and "intentionally intercepts, endeavors to intercept, or
procures any other person to intercept or endeavor to intercept,
any wire, oral, or electronic communication." 18 U.S.C. § 2511(1)(a). This statute
also punishes the use of a wrongfully acquired signal. Id. at §
Despite these demands for relief, the plaintiff's complaint
does little to assist the court in calculating damages. In fact,
the plaintiff offers merely boilerplate bases for relief which
allege amorphous and hypothetical damages. Compl. ¶¶ 17, 21; see
also Pl.'s Mem. of Points and Authorities in Supp. of Mot. for
Default J. ("Pl.'s Mem.") at 6 (conceding that the plaintiff
cannot determine actual damages). The plaintiff claims, for
example, that the
[d]efendant's violations have injured and will
continue to injure DIRECTV by depriving DIRECTV of
subscription and pay-per-view revenues and other
valuable consideration, compromising DIRECTV's
security and accounting systems, infringing DIRECTV's
trade secrets and proprietary information, and
interfering with DIRECTV's contractual and
prospective business relations.
Id. The plaintiff goes on to state that "the court should award
damages pursuant to 18 U.S.C. § 2520(c)(2)(B)" solely because the
damages available to the plaintiff under this section are greater
than those available under 47 U.S.C. § 605. Id. at 2.
Nevertheless, after reviewing the record, the court concludes
that there is a basis for imposing damages and awards attorneys'
fees pursuant to Federal Rule of Civil Procedure 55(b)(2). The
court now considers the plaintiff's requests for damages under
each of the statutes, mindful that default judgment does not
automatically establish liability for damages as claimed by the
plaintiff. Shepherd, 862 F. Supp. at 491 (stating that
"although a default judgment forces a defendant to concede
liability, it does not . . . concede liability for the amount of
damages that the plaintiff has claimed").
1. The Plaintiff's Claims Under 47 U.S.C. § 605(a)
The plaintiff alleges that the defendant "has received and/or
assisted others in receiving the plaintiff's satellite
transmissions without authorization." Compl. ¶ 18. Therefore, the plaintiff requests damages pursuant to 47 U.S.C. § 605, which
states that "the party aggrieved may recover an award of
statutory damages for each violation of subsection (a) of this
section involved in the action in a sum of not less than $1,000
or more than $10,000, as the court considers just."
47 U.S.C. § 605(e)(3)(C)(II).
To justify relief above the minimum statutory amount of $1,000,
however, the plaintiff must provide additional evidence of the
defendant's wrongdoing. See DirecTV, Inc. v. Hamilton,
215 F.R.D. 460, 463 (S.D.N.Y. 2003) (asserting that evidence only of
the defendant's purchase of pirate access devices was
insufficient to warrant an award of damages beyond the statutory
minimum). Here, the plaintiff alleges that the defendant
purchased pirate access devices on two separate occasions and
that the devices are typically used to intercept satellite
transmissions without authorization. Id. ¶¶ 12-14. The
plaintiff does not allege, however, that the devices were used
individually in separate violations of 47 U.S.C. § 605(a). Still,
as discussed, the plaintiff is entitled to the reasonable
inference that the illegal devices were used in violation of the
statute. Au Bon Pain, Corp., 653 F.2d at 65. Absent more
compelling evidence of the defendant's wrongdoing, therefore, the
court rules that the plaintiff's complaint alleges only one
discrete act in violation of the statute. Huynh,
318 F. Supp. 2d at 1131 (reasoning that the mere purchase of more than one
pirate access device is not sufficient evidence to show that the
defendant committed more than one violation); Adkins,
180 F. Supp. 2d at 17 (stating that default establishes the defendant's
liability only as to the well-pleaded allegations of the
complaint). Accordingly, the court awards the statutory minimum
of $1,000 for a single violation of 47 U.S.C. § 605(a). 2. The Plaintiff's Claims under 18 U.S.C. § 2511
In addition to seeking relief under 47 U.S.C. § 605, the
defendant also seeks statutory damages under
18 U.S.C. § 2520(c)(2)(B) for the defendant's violations of
18 U.S.C. § 2511(1)(a). Section 2520(c)(2)(B) provides that the court "may"
award "the sum of the actual damages suffered by the plaintiff
and any profits made by the violator as a result of the
violation" or "statutory damages of whichever is the greater of
$100 a day for each day of violation or $10,000."
18 U.S.C. § 2520(c)(2)(B). The use of "may" in the statute indicates that the
award of damages under this section is discretionary. Reynolds
v. Spears, 93 F.3d 428, 434 (8th Cir. 1996) (holding that "may"
should, under common statutory interpretation, be construed as
discretionary, absent evidence documenting contrary legislative
Here, the plaintiff has provided no evidence of actual damages
suffered. Pl.'s Mem. at 6 (conceding that the plaintiff cannot
calculate its actual damages resulting from the defendant's
actions). Indeed, the only method the plaintiff offers to assess
damages is in requesting that the court calculate damages based
on the "each day of violation" standard of 18 U.S.C. § 2520.
Pl.'s Mem. at 6. The plaintiff reasons that because the defendant
"could have used the pirate access devices he purchased for well
over 100 days," the court ought to assess the statutory penalty
of $1,000 for each of the hypothetical 100 days and award the
plaintiff $10,000. Id. Absent proof of the defendant's
affirmative conduct, however, a calculation under the "each day
of violation" provision would be speculative. DirecTV v. Kaas,
294 F. Supp. 2d 1044, 1049 (N.D. Iowa 2003) (determining that in
order to assess damages under the "each day of violation"
provision, the court must have an estimate of the number of days
the violation(s) occurred). As a result, the court has no adequate basis for awarding damages under the "each
day of violation" provision or the statutory maximum $10,000
Although the plaintiff prays for damages under both statutes as
discussed, courts have addressed this same request in similar
cases of default judgment and declined to award damages under
18 U.S.C. § 2520(c)(2)(B) as such an award would be unreasonable.
DirecTV v. Perrier, 2004 WL 941641 at 4 (W.D.N.Y March 15,
2004) (declining to award statutory damages under
18 U.S.C. § 2520 absent evidence that the defendant profited from his
violations of the statute or induced others to engage in similar
misconduct, and because damages were awarded under
47 U.S.C. § 605); Kaas, 294 F. Supp. 2d at 1049 (finding the plaintiff's
request for $10,000 in damages pursuant to 18 U.S.C. § 2520 to be
excessive). Moreover, where no evidence exists to support the
claim that the defendant profited from his wrongdoing, or where
no evidence exists to support the conclusion that the defendant's
actions resulted in actual damages to the plaintiff, assessing
damages on this statutory provision is excessive. DirecTV v.
Griffin, 290 F. Supp. 2d 1340, 1348 (M.D. Fla. 2003); DirecTV
v. Van La, 2004 U.S. Dist. LEXIS 16428, at 9 (D. Minn. May 19,
2004). Therefore, the court denies the plaintiff's request for
damages under 18 U.S.C. § 2520 and awards damages only under
47 U.S.C. § 605.
3. The Court Awards Attorneys' Fees and Costs
The plaintiff also seeks attorneys' fees and costs under
47 U.S.C. § 605(e)(3)(B)(iii). This statute provides that a court
"shall direct the recovery of full costs, including awarding
reasonable attorneys' fees to an aggrieved party who prevails."
47 U.S.C. § 605(e)(3)(B)(iii). In this case, the plaintiff
requests $4,806 in attorneys' fees and $241.57 in other costs.
Pl.'s Erratum to Decl. in Supp. of Atty's Fees, Exs. A, B. The
plaintiff has pursued cases in many jurisdictions that are factually similar to this case. See e.g.
Huynh, 318 F. Supp. 2d 1122; Kaas, 294 F. Supp. 2d 1044;
Perrier, 2004 WL 941641. Given the repetition of similar
litigation, the court deems that the plaintiff's request for
$4,806 is excessive. Huynh, 318 F. Supp. 2d at 1130 (reasoning
that the plaintiff has and continues to litigate many cases such
as this, which present no complex legal issues, and from which
its attorneys have a large pool of experience to draw). The court
also notes that in factually similar cases, the plaintiff has
requested and received attorneys' fees in the amount of $850.
Perrier, 2004 WL 941641 at 4; Kaas, 294 F. Supp. 2d at 1049
(in both cases, awarding $850 in attorneys' fees and costs in a
situation of default judgment). The court sees little
justification for awarding this $3,956 difference, especially in
a case involving only six filings on the part of the plaintiff.
Still, the court is sensitive to the fact that the cost of
litigation in Washington, D.C. may well exceed that of practice
in the jurisdictions in which the plaintiff received $850. The
court, therefore, awards the plaintiff $2,403, half of the amount
it requested for attorney's fees.
Based on the foregoing facts, the court concludes that the
plaintiff's requested relief of $4,806 for attorneys' fees is
excessive and instead awards $2,403 in reasonable attorneys' fees
plus the requested $241.57 in costs as claimed in the attorneys'
billed amounts. Pl.'s Erratum to Decl. in Supp. of Atty's Fees,
Exs. A, B. In sum, the court determines that the defendant is
liable for $1,000 in statutory damages and $2,644.57 in
attorneys' fees and costs under 47 U.S.C. § 605. IV. CONCLUSION
For the foregoing reasons, the court grants the plaintiff's
motion for entry of default judgment and assesses a civil penalty
in the amount of $3,644.57 against the defendant. An order
consistent with this Memorandum Opinion is separately and
contemporaneously issued this 12th day of December, 2005.
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