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DISH Network L.L.C. v. Trujillo

United States District Court, D. Nevada

September 27, 2019

DISH NETWORK L.L.C., et al., Plaintiffs,
v.
ALONZO TRUJILLO, Defendants.

          REPORT AND RECOMMENDATION (DOCKET NO. 9)

          Nancy J. Koppe United States Magistrate Judge

         Pending 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 relief.

         I. BACKGROUND

         This 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 at 2.

         On 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.

         On 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 No. 8.

         On 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.

         II. ANALYSIS

         A. Default Judgment

         “When 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.

         Whether 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.

         The 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).

         The 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.

         Section 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 ...


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