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 ...