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Myeress v. Proam Dance Team NYC LLC

United States District Court, District of Columbia

March 4, 2019

JOE MYERESS, Plaintiff,



         This 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 prejudice.[1]


         Plaintiff 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.

         The 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.[2] 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.

         Although 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.

         On 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.

         Subsequently, 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.[3] 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.[4]


         Rule 55 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)).

         To 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).


         On 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.

         A 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 ...

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