United States District Court, D. Nevada
REPORT AND RECOMMENDATION (DOCKET NO. 9)
J. Koppe United States Magistrate Judge
before the Court is Plaintiffs' motion for default
judgment on Count III of the complaint. Docket No. 9 at 1.
For the reasons stated below, the Court
RECOMMENDS that default judgment be entered
against Defendant on Count III of the complaint and that
Plaintiffs be awarded $10, 000 and permanent injunctive
case is about satellite-television piracy. Plaintiffs allege
that Defendant circumvented their security technology and
intercepted DISH's broadcast without paying for it by
subscribing to a “pirate television service” that
uses key-sharing called NFusion Private Server. Docket No. 1
January 2, 2019, Plaintiffs sued Defendant, alleging three
counts: circumventing an access control measure in violation
of 17 U.S.C. § 1201(a)(1); receiving satellite signals
without authorization in violation of 47 U.S.C. §
605(a); and intercepting satellite signals in violation of 18
U.S.C. §§ 2511(1)(a) and 2520-both part of the
Electronic Communications Privacy Act of 1986 (ECPA). Id.
at 5-6. On January 9, 2019, Defendant was served with a
copy of the summons and the complaint. Docket No. 5 at 1. On
January 14, 2019, the summons was returned to the Court as
executed. Id. Defendant had until January 30, 2019,
to file an answer to the complaint. See Id. at 2.
Defendant failed to do so.
February 14, 2019, Plaintiffs moved for the Clerk's entry
of default against Defendant. Docket No. 6. The Clerk entered
default against Defendant the next day. Docket No. 7. The
case then stagnated until August 15, 2019, when the Court
ordered that a motion for default judgment or voluntary
dismissal be filed no later than September 6, 2019. Docket
September 3, 2019, Plaintiffs filed the pending motion.
Docket No. 9. Plaintiffs move the Court to enter default
judgment against Defendant on Count III and to award
Plaintiffs statutory damages of $10, 000 and permanent
injunctive relief. Id. at 15. Plaintiffs submit
that, if their request is granted, they will dismiss Counts I
and II with prejudice. Id.
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.” Fed.R.Civ.P. 55(a). A
plaintiff may obtain default judgment if the clerk entered
default. Fed.R.Civ.P. 55(b)(2). Plaintiffs applied to the
Clerk for entry of default against Defendant, and the Clerk
entered default against Defendant. Docket Nos. 6, 7. The
Court may therefore appropriately consider entering default
judgment against Defendant.
default judgment should be entered is at the district
court's sole discretion. See Aldabe v. Aldabe,
616 F.2d 1089, 1092 (9th Cir. 1980). A defendant's
default alone does not entitle a plaintiff to a court-ordered
judgment. See Id. Instead, a court should look at
seven factors before entering default judgment: “(1)
the possibility of prejudice to the plaintiff, (2) the merits
of plaintiff's substantive claim, (3) the sufficiency of
the complaint, (4) the sum of money at stake in the action,
(5) the possibility of a dispute concerning material facts,
(6) whether the default was due to excusable neglect, and (7)
the strong policy underlying the Federal Rules of Civil
Procedure favoring decisions on the merits.” Eitel
v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Upon
default, the complaint's well-pleaded allegations
relating to liability are taken as true. TeleVideo Sys.,
Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir.
1987). The Court now applies the Eitel factors here.
first factor favors default judgment. If default judgment is
not entered against Defendant, Plaintiffs might be
effectively denied a remedy. That denial alone is enough to
meet the first factor's burden. See Philip Morris,
USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494, 499
(C.D. Cal. 2003).
second and third factors favor default judgment. Default
judgment is favored when the claims are meritorious and the
complaint sufficiently states a claim for relief. See
PepsiCo, Inc. v. California Sec. Cans, 238 F.Supp.2d
1172, 1175 (C.D. Cal. 2002); Danning v. Lavine, 572
F.2d 1386, 1388-89 (9th Cir. 1978). Thus, the Court must
assess the claims and complaint.
2511(1)(a) bars any person from “intentionally
intercept[ting], endeavor[ing] to intercept, or procur[ing]
any other person to intercept or endeavor to intercept, any
wire, oral, or electronic communication.” 18 U.S.C.
§ 2511(1)(a). That section does not provide a private
right of action. See EchoStar Satellite, L.L.C. v.
Viewtech, Inc., 543 F.Supp.2d 1201, 1208 (S.D. Cal.
2008). Section 2520 does provide a private action, however,
for violating Section 2511(1)(a). Id. Section
2520(a) provides that “any person whose wire, oral, or
electronic communication is intercepted, disclosed, or
intentionally used in violation of this ...