United States District Court, District of Columbia
OPINION AND ORDER
L. FRIEDMAN UNITED STATES DISTRICT JUDGE.
matter is before the Court on Mr. Myeress' motion for
entry of final judgment by default [Dkt. No. 8]. Having
considered Mr. Myeress' arguments, the relevant legal
authorities, and the entire record in this case, the Court
will deny Mr. Myeress' motion without
FACTUAL AND PROCEDURAL BACKGROUND
Joe Myeress is a commercial and fine art photographer who
resides in Sarasota, Florida. See Compl. ¶ 1.
According to Mr. Myeress, defendant ProAm Dance Team NYC LLC
(“ProAm”) is a “dance company for amateurs
and professionals, ” founded as a limited liability
company and “existing under the laws of the state of
New York, with headquarters in New York, New York.”
See id. ¶ 2. Mr. Myeress has brought suit
against ProAm alleging copyright infringement under federal
copyright laws. See id. ¶¶ 3-4, 15-23.
facts according to Mr. Myeress are as follows. In October
2009, Mr. Myeress created a photograph of the American
Airlines Arena in Miami. See Compl. ¶ 8. That
photograph, he states, is copyrighted; he registered it with
the United States Copyright Office on April 8, 2015. See
id. ¶¶ 9, 12. Mr. Myeress contends that
beginning on or about September 1, 2016, ProAm copied the
photograph and uploaded it to ProAm's social media
websites. See id. ¶¶ 13-14. According to Mr.
Myeress, ProAm altered the photograph before uploading it,
cropping out his name - the “copyright management
information” - from the bottom right corner of the
photograph. See id. ¶¶ 14, 22.
he generally licenses his copyrighted photographs for
commercial use, Mr. Myeress asserts that he “is the
sole copyright holder of [the photograph in question] and has
never entered into an agreement with an individual, business,
or other entity to transfer or share copyright in the
[photograph].” See Compl. ¶¶ 1, 9.
ProAm's actions, therefore, allegedly constitute (1)
infringement of copyright pursuant to 17 U.S.C. § 101
et seq., and (2) removal and alteration of integrity
of copyright management information pursuant to 17 U.S.C.
§ 1202. See id. ¶¶ 15-23. Mr Myeress
requests that the Court: declare that ProAm violated Mr.
Myeress' rights under the Federal Copyright Act;
immediately and permanently enjoin ProAm from copying and
republishing Mr. Myeress' photograph without his consent;
order ProAm to turn over all profits derived from its
infringement of Mr. Myeress' copyright; award Mr. Myeress
actual and/or maximum allowable statutory damages; award Mr.
Myeress the cost of this suit, including reasonable
attorneys' fees; and any other relief that the Court
deems just and proper. See id. at 6.
January 18, 2019, the Clerk of Court issued electronically a
summons [Dkt. No. 2] addressed to ProAm Dance Team NYC LLC
and directed to the attention of Olga Nesterova at 244 West
54th Street, New York, NY 10019. Mr. Myeress then filed an
affidavit of service dated March 13, 2018 and signed by
Ambiko Wallace, a process server. See Aff. Serv. at
1. The affidavit states that on March 9, 2018, Ambiko Wallace
served copies of the summons and complaint on ProAm, care of
the District of Columbia Department of Consumer and
Regulatory Affairs (“DCRA”) in accordance with
D.C. Code Section 29-104.12. See id. at 1.
Mr. Myeress requested that the Clerk of Court enter default
against ProAm pursuant to Rule 55(a) of the Federal Rules of
Civil Procedure. See Request at 1. In support of
that request, Mr. Myeress submitted an affidavit written by
his lawyer, David C. Deal, which stated that ProAm had
“failed to appear, plead, or otherwise defend within
the time allowed.” See id. at 2. The Clerk of
Court entered default as to ProAm Dance Team NYC LLC on April
3, 2018. See Default. Mr. Myeress then filed a
motion for entry of final judgment by default pursuant to
Rules 55(b) and 58(d) of the Federal Rules of Civil
Procedure. See Mot. J. Def. at 1. He requests
judgment for $15, 000 in statutory damages and an injunction
against ProAm. See id.
of the Federal Rules of Civil Procedure provides the Court
with the discretion to enter a default judgment on the
request of a party. See Fed.R.Civ.P. 55; see
also Braun v. Islamic Republic of Iran, 228 F.Supp.3d
64, 74 (D.D.C. 2017). As a foundational matter, however,
“[d]efault judgments are generally disfavored by
courts, ” because there is a strong policy favoring the
adjudication of a case on its merits. See Strong-Fisher
v. LaHood, 611 F.Supp. 2d. 49, 51 (D.D.C. 2009); see
also Webb v. District of Columbia, 146 F.3d 964, 971
(D.C. Cir. 1998) (“[A] default judgment must be a
‘sanction of last resort,' to be used only when
less onerous methods . . . will be ineffective or obviously
futile.” (quoting Shea v. Donohoe Constr. Co.,
795 F.2d 1071, 1075 (D.C. Cir. 1986))); Halbig v.
Sebelius, Civil Action No. 13-0623 (PLF), 2013 WL
12318483 (D.D.C. Oct. 15, 2013). Thus, “default
judgment must normally be viewed as available only when the
adversary process has been halted because of an essentially
unresponsive party.” See Jackson v. Beech, 636
F.2d 831, 836 (D.D.C. 1980) (quoting H.F. Livermore Corp.
v. Aktiengesselschaft Gebruder Loepfe, 432 F.2d 689, 691
(D.C. Cir. 1970)).
obtain the entry of a default judgment, a party must
undertake a two-part process. See Fed.R.Civ.P. 55.
First, the party requests the Clerk of Court to enter a
default. See Serv. Emps. Int'l Union Health and
Welfare Fund v. N. Am. Cleaning Servs. Co., 264
F.Supp.3d 1, 3-4 (D.D.C. 2017). Rule 55(a) provides that
“[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise, the clerk
must enter the party's default.” See
Fed.R.Civ.P. 55(a). Once default is entered, the factual
allegations asserted in the complaint are “deemed
admitted.” See Serv. Emps. Int'l Union Health
and Welfare Fund v. N. Am. Cleaning Servs. Co., 264
F.Supp.3d at 4. Second, the plaintiff then may seek a default
judgment, either from the clerk “[i]f the
plaintiff's claim is for a sum certain or a sum that can
be made certain by computation” or from the court
“in all other cases.” See Fed.R.Civ.P.
55(b). Default judgment may be entered only when
“personal jurisdiction is properly exercised over
defendants.” See Braun v. Islamic Republic of
Iran, 228 F.Supp.3d at 75; see also Herbin v.
Seau, 317 F.Supp.3d 568, 571 (D.D.C. 2018) (“[A
court] should satisfy itself that it has personal
jurisdiction before entering judgment against an absent
defendant.” (quoting Mwani v. bin Laden, 417
F.3d 1, 6 (D.C. Cir. 2005))); Cohen v. Islamic Republic
of Iran, 238 F.Supp.3d 71, 79 (D.D.C. 2017); 10A Charles
Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal
Practice & Procedure § 2682 (4th ed. 2018).
April 3, 2018, the Clerk of Court declared ProAm to be in
default. See Default. Mr. Myeress now requests that
the Court enter a default judgment. See Mot. Def. J.
The fact that the Clerk of Court has entered default against
ProAm does not end the Court's inquiry. The Court may
“set aside the entry of default if no judgment has been
entered when good cause is shown.” See Van De Berg
v. Social Sec. Admin., 254 F.R.D. 144, 145 (D.D.C.
2008); see also Judd v. F.C.C., 276 F.R.D. 1, 5
(D.D.C. 2011); Fed.R.Civ.P. 55(c). “The decision to set
aside an entry of default rests in the discretion of the
district court.” Van De Berg v. Social Sec.
Admin., 254 F.R.D. at 145 (citing Keegel v. Key West
& Caribbean Trading Co., 627 F.2d 372, 373 (D.C.
Cir. 1980)). Here, no judgment has yet been entered, and the
Court concludes that there is good cause to set aside the
entry of default.
default “cannot be entered where there was insufficient
service of process.” See Scott v. District of
Columbia, 598 F.Supp.2d 30, 36 (D.D.C. 2009)
(“Although default may be entered upon a
defendant's failure to plead or otherwise defend, . . . a
defendant's obligation to respond to a complaint arises
only upon service of the summons and complaint.”
(citing Fed.R.Civ.P. 55(a), 12(a))). Valid service of process
serves two purposes: to assert personal jurisdiction over a
defendant and to notify the defendant that a party has
commenced legal action against it. See Williams v. GEICO
Corp., 792 F.Supp.2d 58, 65 (D.D.C. 2011); see also
Toms v. Hantman, 530 F.Supp.2d 188, 190 (D.D.C. 2008)
(“Before a court may exercise personal jurisdiction
over a defendant, the procedural requirement of proper
service of summons must be satisfied to assure notice to the