United States District Court, E.D. Michigan, Southern Division
OPINION AND ORDER GRANTING PLAINTIFF'S CORRECTED MOTION FOR DEFAULT JUDGMENT AND AWARDING DAMAGES (ECF NO. 16)
PAUL D. BORMAN, District Judge.
This action arises from Plaintiff J & J Sports Production, Inc.'s ("Plaintiff') allegation that Defendant Bader Matti violated federal law by illegally broadcasting a boxing match at his bar. Defendant Matti has failed to defend or otherwise appear in this action and Plaintiff now moves this Court for entry of a Default Judgment pursuant to Federal Rule of Civil Procedure 55(b)(2). (ECF No. 16).
Plaintiff previously moved for a default judgment against Defendant Matti on June 16, 2014. (ECF No. 14). The Court denied that motion without prejudice on August 5, 2014 because Plaintiff's motion for default was based on a different and separate transmission of a program that was not set forth in the complaint (but is the subject of a separate action between the same parties, see J & J Sports Productions, Inc. v. Bader Matti, case no. 14-12981). (ECF No. 15, Order).
Plaintiff now seeks a judgment against Defendant in the amount of $110, 000.00, plus attorney's fees and court costs in the amount of $2, 540.00, pursuant to 47 U.S.C. §§ 605(e)(3)(C)(i)(I)-(II), 605(e)(3)(C)(ii) and 605(e)(3)(C)(iii). A hearing on this matter was held on November 24, 2014 on this issue and for the reasons stated on the record and those set forth below, the Court GRANTS Plaintiff's motion for default and awards damages in the amount of $24, 540.00.
On September 16, 2013, Plaintiff filed its complaint against Defendant Matti and also against 150 West Cafe, LLC. (ECF No. 1, Compl. ¶¶ 6-8). Plaintiff alleges in its complaint that, pursuant to contract, it has the exclusive nationwide television distribution rights for the " Star Power' Floyd Mayweather, Jr. v. Victor Ortiz, Championship Fight Program " and its undercard preliminary bouts (collectively "the Program") that were telecast nationwide on Saturday, September 17, 2011. (Compl. ¶ 10). Plaintiff asserts that Defendant Matti is the owner, officer, operator, or otherwise the person is charge of 150 West Cafe, LL. ( Id. at ¶ 8; Mot. Ex. G, Report of LLC Members, Managers & Assignees). Plaintiff, in an attempt to combat piracy of its programs, hires investigative agencies who retain auditors who visit various commercial locations that have no record of paying the required fee. For a "commercial fee", a commercial establishment can receive an unscrambled signal enabling the business to view the program either through Plaintiff or an authorized distributor. The fee is determined by the number a "Rate Card" that ties the fee to the seating capacity of the business. ( See Mot., Ex. I, Rate Card). Plaintiff claims Defendants illegally broadcast the Program to the patrons of 150 West Cafe on September 17, 2011 in violation of the Communication Act of 1934, as amended, 47 U.S.C. § 605, et seq., and the Cable & Televison Consumer Protection and Competition Act of 1992, as amended, 47 U.S.C. § 553, et seq. ( Id. at ¶¶ 9-24; see also Mot. Ex. E, Taylor Aff.). Plaintiff also claims that the broadcast constituted conversion. ( Id. at ¶¶ 24-27).
Plaintiff provides that Defendant Matti was served on November 3, 2013. (Mot. Ex. B). On January 22, 2014, after discovering 150 West Cafe, LLC was dissolved following a court-ordered receivership, Plaintiff voluntarily dismissed Defendant 150 West Cafe, LLC. (ECF No. 5). The same day, Plaintiff requested a entry of a Clerk's default against Defendant Matti which was entered on January 23, 2014. (ECF Nos. 7, 8).
II. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 55(b) a judgment by default may be entered against a defendant who has failed to plead or otherwise defend against an action. In order to obtain judgment by default, the proponent must first request the clerk's entry of default pursuant to Rule 55(a). See Hanner v. City of Dearborn Heights, No. 07-15251, 2008 WL 2744860, at *1 (E.D. Mich. July 14, 2008). Once a default has been entered by the clerk's office, all of a plaintiff's wellpleaded allegations, except those relating to damages, are deemed admitted. Antoine v. Atlas Turner, Inc., 66 F.3d 105, 110 (6th Cir. 1995), see also Ford Motor Co. v. Cross, 441 F.Supp.2d 837, 846 (E.D. Mich. 2006) (citation omitted). Once a default is obtained, the party may then file for a default judgment by the clerk or by the court. FED. R. CIV. P. 55(b). If the plaintiff's wellpleaded allegations are sufficient to support a finding of liability as to the defendant on the asserted claims, then the Court should enter a judgment in favor of the plaintiff. See Cross, 441 F.Supp.2d at 848. Although Rule 55(b)(2) does not provide a standard to determine when a party is entitled to a judgment by default, the case law sets forth that the court must exercise "sound judicial discretion" when determining whether to enter the judgment. Wright & Miller, 10A Federal Practice & Procedure, § 2685 (3d ed. 1998) (collecting cases). After a court determines that a default judgment should be entered, it will determine the amount and character of the recovery awarded. See id. § 2688 (collecting cases).
A. Sufficient Service
"Because a party has no duty to plead until properly served, sufficient service of process is a prerequisite to entry of default. Russell v. Tribley, No. 10-14824, 2011 WL 4387589, at *8 (E.D. Mich. Aug. 10, 2011) (collecting cases). In the present action, Plaintiff has evidenced that Defendant Bader Matti was personally served on November 3, 2013 at 2953 Squire Ct., Troy, Michigan by providing a notarized proof of service. (Mot. Ex. B, Proof of Service with signature). This method of service comports with Federal Rule of Civil Procedure 4(e), which provides that an individual residing within a judicial district of the United States may be served by "delivering a copy of the summons and of the complaint to the individual personally". FED. R. CIV. P. 4(e)(2)(A). Therefore, Plaintiff has established that Defendant Matti was properly served in this action.
Accordingly, the Court should consider all of Plaintiff's well-pled allegations admitted. See Cross, 441 F.Supp.2d at 846. Therefore, the Court's inquiry becomes whether Plaintiff's allegations are sufficient to support ...