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DIRECTV, INC. v. AGEE

December 12, 2005.

DIRECTV, INC., Plaintiff,
v.
CARLTON AGEE, Defendant.



The opinion of the court was delivered by: RICARDO URBINA, District Judge

MEMORANDUM OPINION

GRANTING THE PLAINTIFF'S MOTION FOR ENTRY OF DEFAULT JUDGMENT AND ASSESSING A CIVIL PENALTY AGAINST THE DEFENDANT
I. INTRODUCTION
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.

  III. ANALYSIS

 
A. Legal Standard for Entry of Default Judgment Under Rule 55(b)(2)
  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 relief.

  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 $3,644.57
  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 thereto.
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 ...


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