United States District Court, W.D. Louisiana, Shreveport Division
ELIZABETH ERNY FOOTE, District Judge.
Before the Court is a Motion for Default Judgment filed by Plaintiff, Joe Hand Promotions, Inc. ("Joe Hand") against Defendants, Rodney Lawson ("Lawson") and RLPR Management, LLC ("RLPR"). For the reasons given below, Plaintiff's Motion For Default Judgment is GRANTED in part and DENIED in part.
I. Factual and Procedural Background
Joe Hand is the premier distributor of closed circuit pay-per-view boxing and special event programming in the United States. Joe Hand held the exclusive nationwide commercial distribution and broadcast rights to Ultimate Fighting Championship 101: Declaration ("the program"), which was telecast nationwide on August 8, 2009. Joe Hand marketed the sub-licencing of the program to various commercial entities throughout North America, including entities in the State of Louisiana. This sub-licence gave those entities the right to publicly exhibit the program in their commercial establishments. Prior to the program being broadcast, Joe Hand instituted a nationwide program that retained auditors and law enforcement personnel to identify establishments that unlawfully exhibited the program. On the night of the event, one of Plaintiff's auditors, Jon Dainty, Jr., witnessed the program being broadcast illegally in the establishment doing business as N Cahoots Sportsbar Grill, which is owned and operated by Defendants. The Affidavit of Jon Dainty, Jr. states that he witnessed the program being televised on eleven television screens inside the Defendants' establishment. He paid no cover charge to enter the establishment and at various times during his stay, he counted between fifty-three to fifty-seven patrons.
On August 6, 2012, Joe Hand filed the instant complaint in this Court alleging the Defendants violated Section 605 of the Communications Act of 1934, Section 553 of the Cable Communications Policy Act of 1984 (together "the Federal Communications Act"), and the Wiretap Act, 18 U.S.C. §§ 2511 and 2520. On August 28, 2012, both Defendants were personally served with a summons and a copy of the complaint, but they have failed to appear in this matter to date. On March 25, 2013, Plaintiff filed a Motion/Request for Entry of Default, and on March 28, 2013, the Clerk of Court filed an Entry of Default.
On July 23, 2014, Magistrate Judge Hornsby issued a Memorandum Order directing Joe Hand to file a motion for default judgment or be subject to dismissal for failure to prosecute. On August 29, 2014, Joe Hand filed the instant motion for default judgment. On September 3, 2014, a Notice of Motion Setting was issued by the Clerk of Court, which gave the Defendants notice of the motion for default judgment and allowed them twenty-one days to respond. The copy of the Notice of Motion Setting that was sent by the Clerk of Court to the Defendants was returned as undeliverable. The Defendants have never responded.
II. Law and Analysis
A. Whether Default Judgment is Appropriate
Federal Rule of Civil Procedure 55(a) provides that "[w]hen 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). Rule 55(b) states that:
[a] party must apply to the court for a default judgment. A default judgment may be entered against a minor or incompetent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 7 days before the hearing. The court may conduct hearings or make referrals-preserving any federal statutory right to a jury trial-when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegations by evidence; or (D) investigate any other matter.
Fed. R. Civ. P. 55(b)(2)(emphasis added).
"Nevertheless, Rule 55(b)(2) gives the judge wide latitude in determining whether such a hearing will be beneficial.'" Talen's Marine & Fuel, L.L.C. v. Global Sales Agency, Inc., No. 2:13-cv-920, 2013 WL 6075646, at *2 (W.D. La. 11/18/13)(citations omitted). "While a plaintiff is not entitled to a default judgment as a matter of right, the Court accepts the well-pleaded allegations of fact in the plaintiff's complaint in determining whether default judgment should be entered." Boyd v. Dill, No. 09-0021, 2011 WL 1304725, at *3 (W.D. La. 04/1/11)(citing Nishimatsu Constr. Co. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir. 1975)).
As a preliminary matter, the Court must determine whether Rule 55(b)(2)'s notice requirement has been implicated in the present case. The Fifth Circuit Court of Appeals has found that whether a district court must give notice to a Defendant of a default judgment depends on whether the Defendant has "appeared in the action." Fed.R.Civ.P. 55(b)(2); Rogers v. Hartford Life & Acc. Ins. Co., 167 F.3d 933, 936 (5th Cir. 1999). "[T]o qualify as an appearance in the action and trigger Rule 55(b)(2)'s notice requirements, the defendant's actions merely must give the plaintiff a clear indication that the defendant intends to pursue a defense and must be responsive to the plaintiff's formal court action.'"" Rogers, 167 F.3d at 937 (quoting Baez v. S.S. Kresge Co., 518 F.2d 349, 350 (5th Cir. 1975)). The Fifth Circuit found that "mere acceptance of formal service of process cannot constitute an appearance for purposes of Rule 55(b)(2)" because "if we construed the phrase that broadly, then every defendant would become entitled to notice...." Id . The court stated that "we will not interpret the phrase appeared in the action' so broadly as to eviscerate the appearance requirement of Rule 55(b)(2)." Id.
Here, the record indicates that Lawson and RLPR accepted formal service of process on August 28, 2012. Defendants were served with the Plaintiff's complaint and failed to file an answer within the requisite time period. There is nothing else in the record to indicate that either Defendant ever "appeared in the action." As such, it is not necessary for the Court to ensure that the Defendants ...