Opinion
No. CIV.S-03-2446 DFL DAD.
October 4, 2005
FINDINGS AND RECOMMENDATIONS
This matter came before the court on September 16, 2005, for hearing on plaintiff's motion for default judgment against defendant Judy Kim and defendant Kim's cross-motion to set aside the entry of default against her. Kelli N. Osaki appeared on behalf of plaintiff. Defendant Kim, proceeding pro se, appeared on her own behalf. Having considered all written materials submitted with respect to the motions, and after hearing oral argument, for the reasons set forth below the undersigned recommends that defendant's motion to set aside entry of default be granted and plaintiff's motion for default judgment be denied as moot.
PROCEDURAL BACKGROUND
On November 25, 2003, plaintiff DirecTV, Inc. initiated this action by filing a complaint for damages and injunctive relief pursuant to various federal statutes prohibiting the interception of satellite communications. The complaint names four individual defendants and alleges federal causes of action under 47 U.S.C. §§ 605(a) and 605(e)(4) (unauthorized publication or use of communications); 18 U.S.C. § 2511(1)(a) (unauthorized interception and disclosure of wire, oral, or electronic communications); and 18 U.S.C. § 2512(1)(b) (unauthorized manufacture, distribution, possession, and advertising of wire, oral, or electronic communication intercepting devices). The complaint also alleges a state law claim for conversion. According to the complaint, defendant Kim's liability to plaintiff stems from her alleged purchase and use of "a Pirate Access Device, consisting of a printed circuit board device called an `Atomic Multi-Purpose,' from [an entity known as] DSS Pro." (Compl. ¶ 11(a).)Despite being served with process, defendant Kim failed to appear in this action. On July 27, 2004, the Clerk of the Court entered default against defendant Kim pursuant to plaintiff's request. On July 8, 2005, plaintiff filed its motion for default judgment. Defendant Kim did not respond to plaintiff's motion in writing but appeared at the August 19, 2005, hearing on the motion. Defendant Kim requested additional time to oppose the motion as well as to move to set aside the entry of default against her. The court granted defendant Kim's requests and set both motions for further hearing on September 16, 2005.
LEGAL STANDARD
Federal Rule of Civil Procedure 55(c) governs the setting aside of an entry of default and states, in relevant part: "For good cause shown the court may set aside an entry of default. . . ." The Ninth Circuit has indicated that a district court's discretion is "especially broad where . . . it is entry of default that is being set aside, rather than a default judgment."Mendoza v. Wight Vineyard Mgmt., 783 F.2d 941, 945 (9th Cir. 1986) (citation omitted). See also Brady v. United States, 211 F.3d 499, 504 (9th Cir. 2000). "A decision on a motion to set aside a default is not an abuse of discretion unless the court is `clearly wrong' in its determination of good cause." Mendoza, 783 F.2d at 945 (citation omitted). "Where timely relief is sought from a default . . . and the movant has a meritorious defense, doubt, if any, should be resolved in favor of the motion to set aside the default so that cases may be decided on their merits." Id. at 945-46 (internal quotations, citations and brackets omitted). See also O'Connor v. State of Nevada, 27 F.3d 357, 364 (9th Cir. 1994).
ANALYSIS
As discussed on the record at the hearing on the parties' motions, while defendant Kim's motion to set aside the default against her may not be prompt, the undersigned finds that it is timely. In this regard, the court notes that defendant Kim is proceeding pro se in this matter. Additional confusion, from defendant's perspective, has resulted from defendant Kim communicating and negotiating with counsel for plaintiff regarding the possible settlement of this matter. It also is noteworthy that plaintiff has not demonstrated an intention to litigate this case in a particularly speedy fashion, having waited nearly one year after the Clerk's entry of default to move for entry of default judgment. For these reasons, the undersigned finds that defendant has sought timely relief from the default entered against her.
The court recognizes that the parties dispute the content of those communications.
Defendant Kim has also asserted a potentially meritorious defense to plaintiff's action. Specifically, defendant Kim asserts that she neither purchased nor used any pirate access device. She has submitted a sworn affidavit in this regard as has her son. Plaintiff has yet to offer any evidence to the contrary. Moreover, as observed by the court at the hearing, the case law developing in this area has at least called into question the validity of two of the four federal claims alleged in plaintiff's complaint. Specifically, there is considerable authority supporting the proposition that no private right of action exists pursuant to 18 U.S.C. § 2512(1)(b). See DirecTV, Inc. v. Treworgy, 373 F.3d 1124, 1129 (11th Cir. 2004) ("Congress did not create a private right of action against persons in possession of access devices in violation of section 2512(1)(b)."); DirecTV, Inc. v. Huynh, 318 F. Supp. 2d 1122, 1129 (M.D. Ala. 2004); DirecTV, Inc. v. Amato, 269 F. Supp. 2d 688 (E.D. Va. 2003). One district court has found that there is no private right of action under 18 U.S.C. § 2511(1)(a) as well. See DirecTV v. Decroce, 332 F. Supp. 2d 715, 720 (D.N.J. 2004) ("Congress did not intend to create a private right of action for a violation of Section 2511(1)(a) based on the unauthorized interception of satellite televison programming.") For these reasons, the court finds that defendant Kim has asserted a meritorious defense at this stage of the proceedings.
Finally, defendant having requested permission to file an answer and proceed with her defense of this action, the court does not recommend conditioning the setting aside of the default in any other respects. More specifically, the court recommends that the district court deny plaintiff's request that the setting aside of default be conditioned upon defendant Kim paying $1,937.50 for plaintiff's expenses incurred in pursuing the motion for default judgment. Plaintiff has not shown that reopening this litigation would result in the requisite prejudice justifying an order requiring this pro se defendant to pay plaintiff's expenses under the circumstances presented here.See Nilsson, Robbins, Dalgarn, Berliner, Carson Wurst v. Louisiana Hydrolec, 854 F.2d 1538, 1546 (9th Cir. 1988) (recognizing that in appropriate circumstances any prejudice suffered by the non-defaulting party as a result of the default and the subsequent reopening of the litigation can be addressed by conditioning the setting aside of the default).
CONCLUSION
Accordingly, the court HEREBY RECOMMENDS that:
1. Defendant Kim's motion to set aside the entry of default against her be granted;
2. Plaintiff's motion for entry of default judgment be denied as moot; and
3. Defendant Kim be directed to file her answer within twenty (20) days of the date of any order adopting these findings and recommendation.
These findings and recommendations are submitted to the United States District Judge assigned to the case pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Findings and Recommendations." The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).