Opinion
Civil Action No. 02-5576 (FLW)
September 10, 2003
MEMORANDUM OPINION
DirecTV, Inc. ("DirecTV") brings this action for entry of default judgment, pursuant to Fed.R.Civ.P. 55(b)(2), against defendant David Whalen for violations of 47 U.S.C. § 605(a) of the Cable Communications Policy Act of 1934 ("Communications Act"); 18 U.S.C. § 2511 (1)(a) and 18 U.S.C. § 2512(1)(b) of the Electronic Communications Privacy Act ("ECPA"); and N.J.S.A. 2A:156A-3 and A-5 ("New Jersey Wiretapping Act"), for the possession and use of illicit devices designed for the unauthorized interception of DirecTV's satellite television programming. Plaintiff also seeks injunctive relief. For the reasons that follow, plaintiffs request for a default judgment is denied, and an evidentiary hearing shall be held. If plaintiff makes the requisite showing of liability, a hearing on damages will immediately follow.
Plaintiffs complaint also asserts a claim for common law conversion. Comp. at ¶¶ 36-39. However, plaintiff does not move for default judgment on this claim.
I. FACTS AND PROCEDURAL HISTORY
DirecTV, a satellite television broadcaster, alleges that defendant Whalen purchased and made use of four "pirate access devices," designed primarily for "the surreptitious interception of satellite communications broadcast by DirecTV." Complaint ("Comp.") at ¶¶ 3, 5, 10. Plaintiff learned of these purchases when it executed Writs of Seizure upon USA CardCleaners, a business allegedly focused on the distribution of pirate access devices. Comp. at ¶ 3. As a result of its raid on USA CardCleaners, plaintiff allegedly obtained two invoices evidencing defendant's purchase of a total of four items: on February 23, 2001, one "Viper Programmer" for $69.00 and two devices known as "SU2 ATMEL" for $15.00 each; and on March 5, 2001, one "Bootloader" for $60.00. Plaintiffs Brief in Support its Motion for Entry of Default Judgment ("PL Br.") at Ex. B; Comp. at ¶ 10. Plaintiff alleges that the devices were sent to defendant's home address. Comp. at ¶ 10.
Plaintiff does not seek default judgment against defendant Dougherty.
The Court notes that the address that appears on the invoices is 225 Oakland Avenue, Audobon, New Jersey 08106. The Return of Service lists the address where defendant was served with the summons and complaint as 225 Oakwood Avenue, Audobon, N.J. 08106.
Plaintiff filed its complaint on November 18, 2002, and defendant was served on December 15, 2002. Defendant's answer was due on or before January 6, 2003. Fed.R.Civ.P. 12(a)(1)(A) and 6(a). Defendant did not file an answer. Default was therefore entered against him on January 31, 2003, pursuant to Fed.R.Civ.P. 55(a). Plaintiff now moves for default judgment pursuant to Fed.R.Civ.P. 55(b)(2). In addition to money damages, plaintiff seeks an injunction permanently enjoining defendant from violating the Communications Act and the ECPA. Defendant has not filed opposition to this motion.
Plaintiff incorrectly argues that defendant's answer was due on January 5, 2003. PL Br. at 2. Twenty days from the date of service was Saturday, January 4; thus, the answer was due Monday, January 6. Fed.R.Civ.P. 12(a)(1)(A) and 6(a).
Plaintiffs requests for damages on this motion are inconsistent and confusing. Plaintiff argues that it is entitled to mandatory minimum statutory awards of: $4,000 for four violations of § 605(a) of the Communications Act; $40,000 for four violations of §§ 2511 and 2512 of the ECPA; and $4,000 for four violations of sections 2A:156A-3 and A-5 of the New Jersey Wiretapping Act. PL Br. at 6. Although plaintiff claims that defendant violated § 2511 four times (for using four intercepting devices), and § 2512 four times (for possessing four such devices), instead of seeking damages for a total of eight violations of the ECPA, plaintiff seeks damages for only four alleged violations. The same holds true for the analogous provisions of the New Jersey Wiretapping Act: plaintiff argues that defendant violated 2A:156A-3 four times (for using four intercepting devices), and 2A:156A-5 four times (for possessing four such devices), yet plaintiff requests damages for a total of only four violations of the Act. Another source of confusion is that in the same paragraph of plaintiff's brief, it argues that is entitled to damages for violation of § 605(a) and for violation of §§ 2511 and 2512; then requests damages under § 605(a) or §§ 2511 and 2512. PL Br. at 6 (emphasis added). Plaintiff concludes its discussion of damages by "accordingly . . . request[ing] an award of $40,000.00 in statutory damages," by way of some undisclosed calculation. Id.
In support of its ambitious arguments of entitlement to mandatory damages awards, plaintiff cites only one case in its entire brief. The following discussion is meant to shed light on the legal issues plaintiff has raised, but has failed to address.
II. DISCUSSION
A. Legal Standard
A party is not entitled to default judgment as of right; rather, the entry of default judgment is entrusted to the "sound judicial discretion" of the court. See Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984); see also 10A Charles Alan Wright, Arthur R. Miller and Mary Kay Kane, Federal Practice and Procedure: Civil 3d § 2685 (1998) (hereafter "Wright Miller"). Rule 55(b)(2) provides that a court may conduct a hearing to test the truth of any averment, or to determine the proper amount of damages:
If, in order to enable the court to enter judgment . . . it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper. . . .
Thus, a court may examine a plaintiffs complaint to determine whether it states a cause of action, and "in its discretion, may require some proof of the facts that must be established in order to determine liability." D.B. v. Bloom, D.D.S., 896 F. Supp. 166, 170 n. 2 (and accompanying text) (D. NJ. 1995) (quoting 10 Wright Miller Civil 2d § 2688 (1983)); Ramos-Falcon v. Autoridad de Energia Electrica, 301 F.3d 1, 3 (1st Cir. 2002); see also James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993) (district court has wide latitude in determining whether to hold a post-default proof hearing). A court may also conduct a hearing to determine an appropriate amount of damages, rather than entering default judgment for the specific amount requested by plaintiff. Comdyne I, Inc. v. Corbin, 908 F.2d 1142, 1149 (3d Cir. 1990); Systems Indus., Inc. v. Man, 105 F.R.D. 72, 74 (E.D. Pa. 1985), vacated on other grounds, 1986 WL 10551 (E.D. Pa. 1986).
B. The Communications Act, 47 U.S.C. § 605(a)
Plaintiff alleges that defendant's use of pirate access devices violated the Communications Act, 47 U.S.C. § 605(a). The Act provides, in relevant part:
No person not being authorized by the sender shall intercept any radio communication. . . .No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto.
The Third Circuit has found that § 605(a) encompasses the interception of satellite transmissions. TKR Cable Company v. Cable City Corp., 267 F.3d 196, 207 (3d Cir. 2001).
An aggrieved party can recover damages from one who violates § 605(a), under 42 U.S.C. § 605(e)(A), by electing to receive either actual damages, or statutory damages ranging from $1,000 to $10,000, as the court considers just. Id. at 605(e)(3)(C)(i). Plaintiff in this case requests statutory damages between $1,000 to $10,000 for each violation. PL Br. at 6.
Damages can be increased for, inter alia, violations done for the purpose of commercial gain. Id. at 605(a)(3)(C)(i)(II). Plaintiff does not seek increased damages. PL Br. at 6.
Significantly, however, plaintiff seeks damages under both the Communications Act, 42 U.S.C. § 605(e), and the ECPA, 18 U.S.C. § 2520. While criminal penalties are permissible under both Acts, see, e.g., U.S. v. One Macom Video Cipher II, 985 F.2d 258, 260 (6th Cir. 1993), some courts, including the Eleventh Circuit, have held that a plaintiff may not recover civil remedies for the same conduct under both Acts. These courts have found that any private remedy provided by the Communications Act is superseded by the remedies of the ECPA. Watkins v. L.M. Berry Co., 704 F.2d 577, 580 (11th Cir. 1983); In re State Police Litigation, 888 F. Supp. 1235, 1261 n. 29 (D. Conn. 1995).Watkins reasoned that "Section 605 was extensively revised by [the ECPA] itself, and there is no reason to believe that [the ECPA] provided duplicative remedies." 704 F.2d at 580. The Eleventh Circuit therefore held that dismissal of a Communications Act claim was proper. Id. Similarly, the In re State Police Litigation court dismissed a Communications Act claim because it found that remedies under that Act were superseded by the ECPA. 888 F. Supp. at 1261 n. 29.
I agree with Watkins and In re State Police Litigation to the extent that where a plaintiff brings claims under both the Communications Act and the ECPA, relief is only available, if at all, under the latter. Thus, I will not enter default judgment on the Communications Act claim.
C. The ECPA. 42 U.S.C. § 2511. 2512. 2520
1. Intentional Interception — § 2511
§ 2511 of the ECPA is violated by "any person who . . . intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral or electronic communication. . . ." 18 U.S.C. § 2511 (1)(a). The vast majority of courts, including every Circuit Court of Appeals to address the issue, have found that the ECPA applies to the interception of satellite transmissions. See, e.g., U.S. v. Crawford, 52 F.3d 1303, 1306-07 (5th Cir. 1995); U.S. v. Herring, 993 F.2d 784, 788 (11th Cir. 1993); U.S. v. Shriver, 989 F.2d 898, 904 (7th Cir. 1993); U.S. v. One Macom Video Cipher II, 985 F.2d 258, 260 (6th Cir. 1993); U.S. v. Splawn, 982 F.2d 414, 414 (10th Cir. 1992); U.S. v. Davis, 978 F.2d 415, 418 (8th Cir. 1992); U.S. v. Lande, 968 F.2d 907, 909 (9th Cir. 1992). Civil remedies for violation of § 2511(1)(a) are provided by § 2520(a):
any person whose wire, oral or electronic communication is intercepted, disclosed, or intentionally used in violation of this chapter may in a civil action recover from the person or entity which engaged in that violation such relief as may be appropriate.
Thus, one who intentionally intercepts satellite transmissions is subject to civil liability. See, e.g., DirecTV, Inc. v. Childers, ___ F. Supp.2d ___, 2003 WL 21782295, * 2 (M.D. Ala. July 29, 2003).
On the record before the Court, I am not satisfied that plaintiff has adequately shown that defendant "intentionally intercept[ed], endeavor[ed] to intercept, or procure[d] any other person to intercept or endeavor to intercept" its satellite programming in violation of § 251 1(1)(a). I will therefore hold an evidentiary hearing "to establish the truth" of plaintiff's averments, pursuant to the explicit authority granted me by Fed.R.Civ.P. 55(b)(2). D.B. v. Bloom, 896 F. Supp. 166, 170 n. 2 (and accompanying text). The only evidence provided by plaintiff are invoices listing defendant's purchase of four devices. My concern is that at present, I have no basis for presuming that the devices purchased by defendant are primarily used for illegal interception of satellite transmissions, or that, indeed, any or all of the four devices were capable of intercepting satellite transmissions. At least one newspaper article has noted that several devices considered by DirecTV to be solely used for the purpose of stealing its services, such as smart-card programmers, emulators and unloopers, have legitimate uses for such people as security researchers, inventors and hobbyists. Coughlin, Kevin, Crackdown on `pirates' stirs mutiny for DirecTV, Star-Ledger, August 25, 2003, available online at http://www.nj.com/printer/printer.ssf?/base/news-10/1061787057300250.xml (last visited 8/25/03). If, for example, plaintiff offers evidence at the hearing that the devices purchased by defendant are predominantly used by others for the illicit interception of satellite programming, and/or that USA CardCleaners advertised the products as such, on the internet or in writing, then I will grant all inferences in favor of plaintiff and find that liability has been established.
2. Possession — § 2512
§ 2512 of the ECPA is violated by "any person who intentionally . . . possesses . . . any electronic, mechanical or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of the surreptitious interception of wire, oral or electronic communications. . . ." 18 U.S.C. § 2512(1)(b). However, most courts to address the issue have held that the ECPA does not provide a private cause of action against those who merely possess an intercepting device in violation of § 2512. The majority view, taking the lead from the Fourth Circuit Court of Appeals, the highest court to address the issue, reasons that the plain language of § 2520(a) does not reach mere possession of intercepting devices. See, e.g., Flowers v. Tandy Corp., 773 F.2d 585, 589 (4th Cir. 1985); DirecTV, Inc. v. Childers, 2003 WL at * 2; DirecTV, Inc. v. Cardona, ___ F. Supp.2d ___, 2003 WL 21910578, * 7 (M.D. FL. July 8, 2003);DirecTV, Inc. v. Amato, ___ F. Supp.2d ___, 2003 WL 21537206, * 3 (E.D. Va. June 20, 2003) (though § 2520 was amended three times since Flowers, the amendments do not affect its holding that the ECPA does not provide a civil cause of action for violation of § 2512); DirecTV, Inc. v. Karpinsky, ___ F. Supp.2d ___, 2003 WL 21499927, *6 (E.D. Mich. June 17, 2003);AGES Group. L.P. v. Raytheon Aircraft Co., Inc., 22 F. Supp.2d 1310, 1315 (M.D. Ala. 1998); but see Oceanic Cablevision. Inc. v. M.D. Electronics, 771 F. Supp. 1019, 1028 (D. Neb. 1991) (disagreeing with Flowers): DirecTV, Inc. v. EO Stuff. Inc., 207 F. Supp.2d 1077, 1084 (C.D. CA 2002) (same). I find the reasoning of Flowers and its progeny persuasive. The plain language of § 2520(a) does not encompass one who merely possesses an intercepting device. Accordingly, plaintiff may not recover for any violation of § 2512.
The language of § 2520(a) is quoted in the preceding section.
3. Damages — § 2520
With respect to the amount of damages recoverable under § 2520 for alleged violations of § 2511, plaintiff argues that it is entitled to a minimum liquidated damages award of $40,000. This raises two issues: 1) whether plaintiff is entitled to liquidated damages for each illicit device used by defendant; and 2) whether plaintiff is entitled to mandatory damages. As to each question, I find that the answer is no.
The First and Sixth Circuits have held that § 2520 does not allow for recovery of multiple liquidated damage awards against a single defendant. Smoot v. United Transportation Union, 246 F.3d 633, 646 (6th Cir. 2001); Desilets v. Wal-Mart Stores, Inc., 171 F.3d 711, 714 (1st Cir. 1999). These courts relied on the plain language of § 2520(c)(2)(B), providing for "statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000." The courts reasoned that if a plaintiff were able to recover $10,000 per violation, it would render meaningless the provision allowing "$100 a day for each day of violation." Smoot, 246 F.3d at 644;Desilets, 171 F.3d at 714. Thus, "[t]he $10,000 liquidated damages amount under § 2520(c)(2)(B) is designed to compensate a claimant for all of a transgressor's misdeeds under the Act, unless that transgressor has violated the Act on more than one hundred separate days, in which case compensation is $100 for each such day." Smoot, 246 F.3d at 646. I agree with the First and Sixth Circuits that allowing plaintiff to recover $10,000 for each alleged violation would constitute "impermissible double recovery" under § 2520(c)(2)(B). Desilets, 171 F.3d at 714.
Plaintiff has elected not to seek $100 for each day of violation. PL Br. at 6.
Plaintiffs insistence that § 2520(c)(2) provides mandatory damages awards also lacks sound legal support. The vast majority of courts has held that any award of damages under § 2520(c)(2) is discretionary. See, e.g., Morford v. City of Omaha, 98 F.3d 398, 400 (8th Cir. 1996); Reynolds v. Spears, 93 F.3d 428, 435 (8th Cir. 1996); Nalley v. Nalley, 53 F.3d 649, 653(4th Cir. 1995);Leach v. Byram, 68 F. Supp.2d 1072, 1076 (D. Minn. 1999);Goodspeed v. Harman, 39 F. Supp.2d 787, 791 (N.D. Tex. 1999);Romano v. Terdik, 939 F. Supp. 144, 147 (D. Conn. 1996);Shaver v. Shaver, 799 F. Supp. 576, 579-80 (E.D. N.C. 1992);see also Four Seasons Hotel and Resorts B.V. v. Barr, ___ F. Supp. ___, 2003 WL 21212185 (publication page references not yet available; see Headnote 4) (S.D. Fl. May 9, 2003). In relevant part, § 2520(c)(2) provides:
the court may assess as damages whichever is the greater of —
(A) the sum of the actual damages suffered by the plaintiff and any profits made by the violator as a result of the violation; or
(B) statutory damages of whichever is the greater of $100 a day for each day of violation or $10,000.
(emphasis added). The majority view relies on the plain meaning of the word "may" in finding that a grant of damages under § 2520(c)(2) is discretionary. E.g., Nalley, 53 F.3d at 651. Congress used contrasting language in § 2520(c)(1) by instructing that "the court shall assess" damages against one who illicitly views unscrambled satellite communications. Id. (emphasis added). To give meaning to the word "shall," courts must interpret the word "may" to "embody a congressional intent to grant courts the discretion to decline to award damages in all but the particular circumstances covered by § 2520(c)(1), where Congress clearly did not manifest an intent to confer such discretion." Id. Further, the liquidated damages that a court "shall assess" against an unauthorized viewer of unscrambled satellite communications are a maximum of $500 for a first-time offender, and $1,000 for a repeat offender. § 2520(c)(1). The liquidated damages that a court "may assess" against an unauthorized viewer of scrambled or encoded satellite communications is $10,000. § 2520(c)(2). Thus, it is reasonable to infer that Congress intended to give courts discretion over whether to impose the far greater amount of $10,000 under § 2520(c)(2). See generally Reynolds, 93 F.3d at 435.
Furthermore, when Congress amended § 2520(c)(2) in 1986, it increased the liquidated damages penalty from $1,000 to $10,000, and replaced the key phrase " shall . . . be entitled to recover" with "the court may assess as damages. . . ." Id. at 652 (emphasis added). The majority view reasons that "[w]hen the wording of an amended statute differs in substance from the wording of the statute prior to the amendment, we can only conclude that Congress intended the amended statute to have a different meaning." Id. Moreover, considering that Congress raised the liquidated damages by a factor often, it is "logical that Congress chose to make the award of such damages discretionary, given the potential of the law to bring financial ruin to persons of modest means, even in cases of trivial transgressions." Reynolds, 93 F.3d at 435.
The minority position, that damages under § 2520(c)(2) are mandatory, is strong in neither its number of supporters nor its reasoning. See, e.g., Rodgers v. Wood, 910 F.2d 444, 448 (7th Cir. 1990); Menda Biton v. Menda, 812 F. Supp. 283, 284 (D. P.R. 1993) (citing Rodgers). In Rodgers, the Seventh Circuit noted that "there is nothing in the legislative record [of the 1986 Amendment] explaining why Congress made the change from the word `shall' to the word `may.' In the absence of any such statement, we are hesitant to read a grant of discretion to the district courts where none had been permitted in the past." 910 F.2d at 448. The court also observed that § 2520(c)(1), providing lower liquidated damages for arguably minor offenders, was added in the 1986 Amendment.Id. The court reasoned that § 2520(c)(1) was the only way in which Congress addressed the potential severity of the tenfold increase in civil penalties. Id.
I find the reasoning of Rodgers unconvincing. Thus, I hold that a court has discretion to award damages under § 2520(c)(2). That discretion, however, is limited to awarding the full amount of damages or no damages at all. E.g., Goodspeed, 39 F. Supp. at 791 n. 6 (citing Shaver, 799 F. Supp. at 580).
D. New Jersey Wiretapping Act, N.J.S.A. 2A156A-3 and A-5
Plaintiff brings two claims under the New Jersey Wiretapping Act. It alleges that defendant "[p]urposely intercept[ed], endeavor[ed] to intercept, or procure[d] any other person to intercept or endeavor to intercept" its "electronic . . . communication," in violation of N.J.S.A. 2A:156A-3. Comp. at ¶ 28. Plaintiff also alleges that defendant violated N.J.S.A. 2A:156A-5 by "purposely possess[ing] an electronic, mechanical or other device, knowing or having reason to know that the design of such device renders it primarily useful for the purpose of surreptitious interception of a wire, electronic, or oral communication." See Comp. at ¶ 33. N.J.S.A. 2A:156A-24 provides the basis for civil liability:
Any person whose wire, electronic or oral communication is intercepted, disclosed or used in violation of this act shall have a civil cause of action against any person who intercepts, discloses or uses or procures any other person to intercept, disclose or use, such communication; and shall be entitled to recover from any such person:
a. Actual damages, but not less than liquidated damages computed at the rate of $100.00 a day for each day of violation, or $1,000.00, whichever is higher;
Plaintiff does not seek punitive damages.
c. A reasonable attorney's fee and other litigation costs reasonably incurred.
Plaintiff seeks to recover minimum liquidated damages of $1,000 for each violation of N.J.S.A. 2A:156A-3 and A-5. Pl. Br. at 6. Plaintiff has cited no supporting case law, and this Court has found very few cases interpreting the New Jersey Act.
It is well-settled, however, that the New Jersey Act was closely modeled after and made to substantially parallel the federal wiretapping act, i.e. the ECPA. PBA Local No. 38 v. Woodbridge Police Dep't, 832 F. Supp. 808, 824 (D. N.J. 1993) (citing State v. Minter, 116 N.J. 269, 275 (1989)); Hornberger v. American Broadcasting Companies, Inc., 799 A.2d 566, 619 (N.J.Super.Ct. App. Div. 2002). New Jersey courts are therefore guided by federal courts' interpretation of similar ECPA provisions. See Hornberger, 799 A.2d at 619 (citing State v. Diaz, 308 N.J. Super. 504, 512-13 (App.Div. 1998)).
Accordingly, I find that where the New Jersey Act is similar to the ECPA, a New Jersey court would most likely apply federal law. Thus, the above analysis of the ECPA applies with equal force to the New Jersey Act in the following respects:
• at the evidentiary hearing, plaintiff, as it must do in the context of the similar 18 U.S.C. § 2511 (1)(a), must establish that defendant "[p]urposely intercept[ed], endeavor[ed] to intercept, or procure[d] any other person to intercept or endeavor to intercept" plaintiffs satellite programming. Plaintiff may accomplish this by showing that the devices purchased by defendant are primarily used by others for the illicit interception of satellite transmissions, and/or that USA CardCleaners advertised the products as being able to do so.
• plaintiff cannot recover damages under N.J.S.A. 2A: 156A-24 for a violation of N.J.S.A. 2A:156A-5. See, e.g., Flowers, 773 F.2d at 589 (interpreting 18 U.S.C. § 2520(a) and 2512, respectively); and
• plaintiff can only recover under N.J.S.A. 2A: 156A-24(a) for a single violation of N.J.S.A. 2A:156A-3. See, e.g., Smoot, 246 F.3d at 644 (interpreting 18 U.S.C. § 2520(c)(2) and 2511, respectively).
The New Jersey Act differs from the ECPA in one key respect: by the plain language of N.J.S.A. 2A:156A-24, plaintiff " shall be entitled to recover" damages (emphasis added). An award of damages is therefore non-discretionary. Thus, if plaintiff establishes liability at the evidentiary hearing, as discussed above, then plaintiff will be entitled to default judgment in the amount of $1,000 for defendant's violation of N.J.S.A. 2A:156A-3.
E. Damages Hearing
In the event plaintiff makes the requisite showing of liability at the evidentiary hearing, the Court will immediately conduct a damages hearing, pursuant to Fed.R.Civ.P. 55(b)(2). As discussed above, plaintiff is not entitled to damages under 47 U.S.C. § 605(a), 18 U.S.C. § 2512, or N.J.S.A. 2A:156A-5. Upon a showing of liability, plaintiff is entitled to $1,000 for violation of N.J.S.A. 2A:156A-3. The Court has discretion whether to award $10,000, or nothing, for violation of 18 U.S.C. § 2511. In this connection, the court inGoodspeed listed factors relevant to a court's decision:
(1) the duration of the interception or the extent of the disclosure; (2) the reason for the interception; (3) whether the defendant reasonably believed that his actions were legal; (4) whether the interceptions resulted in actual damages to the plaintiff; (5) whether the defendant profited from the interception; and (6) whether the defendant has already been punished in some other proceeding.Goodspeed, 39 F. Supp.2d at 791 (citing Morford, 98 F.3d at 401; Reynolds, 93 F.3d at 436; Romano, 939 F. Supp. at 150). Plaintiff should be prepared to discuss these factors, to the extent this information is available. The Court will also decide whether to grant plaintiffs request for an injunction, pursuant to 18 U.S.C. § 2520(b)(1), and the reasonableness of plaintiff's requests for attorney's fees and costs, pursuant to 18 U.S.C. § 2520(b)(3) and N.J.S.A. 2A:156A-24(c).
Plaintiff has provided a certification itemizing its fees and costs, in the amounts of $3,121.80 and $305.81, respectively. Certification of Marc E. Wolin; and PL Br. at 6.
III. CONCLUSION
For the reasons discussed above, entry of default judgment is premature. An evidentiary hearing shall be set for the date specified in the accompanying Order. If plaintiff adequately establishes defendant's liability, the evidentiary hearing will immediately convert into a damages hearing.
ORDER
This matter having been opened to the Court by Marc E. Wolin, Esq., counsel for plaintiff, DIRECTV, Inc., seeking entry of default judgment against defendant, David Whalen, pursuant to Fed.R.Civ.P. 55(b)(2); the Court having reviewed the moving papers, and there having been no opposition filed; this matter being decided pursuant to Fed.R.Civ.P. 78; for the reasons set forth in the Opinion filed on this date; and for good cause shown,ORDERED that plaintiffs motion for entry of default judgment is denied, without prejudice; and it is further
ORDERED that there shall be an evidentiary hearing held on October 7, 2003 at 10 a.m., in Courtroom 3A of the Mitchell H. Cohen U.S. Courthouse, 1 John F. Gerry Plaza, Camden, NJ. 08101, to determine the truth of plaintiff's averments, as discussed in the accompanying Opinion; and it is further
ORDERED that if plaintiff makes the requisite showing of liability at the evidentiary hearing, a hearing on damages shall be held on the same date; and it is further
ORDERED that plaintiff shall provide defendant notice of these hearings upon receipt of this Order.