United States District Court, S.D. New York
October 13, 2005.
Cablevision Systems New York City, Plaintiff,
Janeth Hall, George Glasford, Frank Gueits, Lucy Morales, Nua Nicaj, Deno Okolo, Juan Rivera, Peter Rodriguez, Harold Romero and Ron Warren Defendants.
The opinion of the court was delivered by: RICHARD CASEY, District Judge
MEMORANDUM & ORDER
Before the Court is Defendant Deno Okolo's ("Defendant" or
"Okolo") application by order to show cause for an order vacating
the default judgment entered against him. For the reasons
explained below, Defendant's application is denied.
Plaintiff Cablevision Systems brought this
theft-of-cable-services action against Okolo and eight other
defendants pursuant to the Cable Communications Policy Act,
47 U.S.C. §§ 553, 605. In a complaint filed in July 1999, Plaintiff
alleges that in November 1994, while residing at 4116 Baychester
Avenue, a person named Deno Okolo allegedly purchased a
descrambler from Freedom Electronics and used it to access
unauthorized cable services.
Plaintiff served Okolo by leaving a copy of the summons and
complaint with a person named Kawalie Okolo, a black female, age
thirty-five, approximately five feet, six inches, and 135 pounds
on July 29, 1999 at 4116 Baychester Avenue. Cassell Aff. ¶ 6, Ex.
F. Plaintiff's process service mailed a copy of the summons and
complaint to Okolo's attention at the same address on July 30,
1999. Id. Okolo's wife would have been thirty-six years old on
the day the process server left the summons and complaint at
Okolo's address. Id. She is the only female person named Okolo
at the address. Id. ¶ 4. Okolo did not respond to the complaint
or the notices of court conferences and the Court entered a
default judgment against him on December 22, 2000.
Okolo admits to residing at 4116 Baychester Avenue in the
Bronx, but claims his name is Dennis, not Deno. Okolo Aff. ¶ 4.
He claims no person named Kawalie Okolo or fitting the
description given by the process server lived at the Baychester
Avenue address. Okolo claims his wife is two inches shorter and twenty pounds lighter than the
person the process server described in her affidavit. Edozie Aff.
¶ 3. He claims he only became aware of the default judgment in
November 2002, when his employer notified him of a lien on his
paycheck. Okolo Aff. ¶ 5.
As his defense, Okolo claims that at some point before the
litigation commenced he talked to a Cablevision investigator
about the matter who allegedly told Okolo that if his name was
not Deno Okolo he had nothing to worry about. Okolo asserts that
the invoice for the descrambler lists Deno Okolo, not Dennis
Okolo, and is not signed. He also claims that during the time in
which he is alleged to have stolen cable services he was actually
a cable subscriber and would have no need for stolen services.
Plaintiff argues that Okolo cannot be heard to argue that he
did not buy the descrambler simply because the invoice is made
out to Deno Okolo instead of Dennis Okolo. Okolo's full name is
Dennis O. Okolo, and the invoice accurately reflects his address
and telephone number. Cassell Aff. ¶ 4, Ex. B. Plaintiff also
brings to the Court's attention nine instances in which the Court
or Plaintiff sent correspondence to Okolo regarding the
litigation at the Baychester Avenue address, none of which was
returned by the post office. See Cassell Aff. ¶¶ 7-8. In
Plaintiff's view, it is "inconceivable" that Okolo was not aware
of the lawsuit against him.
Federal Rule of Civil Procedure 55(c) states, "For good cause
shown the court may set aside an entry of default and, if a
judgment by default has been entered, may likewise set it aside
in accordance with Rule 60(b)." Courts consider three factors in
determining whether to vacate a default judgment: (1) willfulness
of the default, (2) presentation of a meritorious defense, and
(3) potential prejudice to the opposing party. DirecTV, Inc. v.
Rosenberg, No. 02 Civ. 2241 (RCC), 2004 WL 345523, *2 (S.D.N.Y.
Feb. 24, 2004). The Second Circuit has a strong preference for
resolving disputes on their merits. Shaw v. New York State Dep't
of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999). But "when the
adversary process has been halted because of an essentially
unresponsive party, default judgment is appropriate to protect
the non-defaulting party from interminable delay and continued
uncertainty as to his rights." Sony Corp. v. SWI Trading Inc.,
104 F.R.D. 535, 540 (S.D.N.Y. 1985). A court has discretion to
enforce the default judgment, however, if it is convinced that
the default was willful and it is convinced that the defendant
does not have a meritorious defense. SEC v. McNulty,
137 F.3d 732, 738 (2d Cir. 1998).
The Second Circuit has held that wilfulness in the context of a
judgment by default requires "something more than mere
negligence," such as "egregious or deliberate conduct," although
the "degree of negligence in precipitating a default is a
relevant factor to be considered." Am. Alliance Ins. Co. v.
Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996). Here, Okolo
admits to living at the address where the process server left
copies of the summons and complaint for him and mailed copies of
both to him. See Okolo Aff. ¶ 4; Cassell Aff. ¶ 6. He admits to
living at the address where the Court and Plaintiff's counsel
sent numerous correspondence, including the notice of the court
conference, notice that Plaintiff was moving for default judgment, a copy of the Court's default order, notices
regarding Plaintiff's submissions on damages, and the Court's
default judgment. See Okolo Aff. ¶ 4; Cassell Aff. ¶ 7, Exs. G,
H, I, J, K, L, M, N, O. The post office did not return these
notices to Plaintiff's counsel or to the Court and Defendant does
not provide any credible explanation as to why he did not respond
to any of them. The Court can only conclude that Okolo chose to
ignore the litigation until his employer notified him that his
wages would be affected.
B. Meritorious Defense
The existence of a meritorious defense is a key factor in the
Rule 60(b) analysis and "the absence of such a defense is
sufficient to support [a] district court's denial" of a Rule
60(b) motion. State Street Bank & Trust Co. v. Inversiones
Errazuriz Limitada, 374 F.3d 158, 174 (2d Cir. 2004). "In order
to make a sufficient showing of a meritorious defense . . . the
defendant need not establish his defense conclusively, but he
must present evidence of facts that, if proven at trial, would
constitute a complete defense." McNulty, 137 F.3d at 740.
Defendant argues that he is not the Deno Okolo on the Freedom
Electronics invoice and that he has no need to steal cable
services because he is a cable subscriber. Defendant does not
dispute that his full name is Dennis O. Okolo, such that the
first three letters of his first name and his middle initial
would form Deno Okolo on the invoice. Additionally, he does not
dispute that the invoice correctly stated his address and
telephone number. Finally, as other courts have explained, to
steal cable services, one must also be a cable subscriber. See,
e.g., Int'l Cablevision, Inc. v. Sykes, 997 F.2d 998, 1000 (2d
Cir. 1993) (explaining descramblers are used by cable
"subscribers to view programs broadcast on premium channels
without paying . . . for these services); Cablevision Sys. Corp.
v. Feiner, 96 Civ. 366, slip op. at 3 (E.D.N.Y. Oct. 21, 1997)
(explaining "it is possible to purchase an electronic device,
commonly known as a "descrambler," which, when connected to
equipment installed by Cablevision, allows for the unauthorized
reception of blocked signals"); Cablevision Sys. Corp. v.
Muneyyirci, 876 F. Supp. 415, 417 (E.D.N.Y. 1994) ("Unscrupulous
cable customers are able to gain access to programming they have
not paid for by purchasing pirate decoders."). Thus, Okolo's
argument that he had no reason to steal services since he already
subscribed to cable is not a meritorious defense.
The Court finds that Okolo's default was willful and that he
has failed to present a meritorious defense. Okolo's application
to vacate the default judgment against him is denied. III. Conclusion
For the reasons explained above, Defendant's application for an
order vacating the default judgment against him is denied.
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