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Joe Hand Promotions, Inc. v. Contreras

May 30, 2006

JOE HAND PROMOTIONS, INC., AS BROADCAST LICENSEE OF THE NOVEMBER 11, 2000, LEWIS/TUA PROGRAM, PLAINTIFF,
v.
ALEX CONTRERAS, INDIVIDUALLY AND AS AN OFFICER, DIRECTOR, SHAREHOLDER, AND/OR PRINCIPAL OF MOMENTS TAVERNA, INC. D/B/A MOMENTS TAVERNA A/K/A MOMENTS LAVERNA, AND MOMENTS TAVERNA, INC. D/B/A MOMENTS TAVERNA A/K/A MOMENTS LAVERNA; DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

Joe Hand Promotions (Joe Hand) brings this action against defendants Alex Contreras, individually and as an officer, director, shareholder, and/or principal of Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna, and Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna (hereinafter "Moments Taverna") (collectively "Defendants") alleging violations of 47 U.S.C. § 605(a), 47 U.S.C. § 605(e)(4), and 47 U.S.C. § 553. Presently before the Court are plaintiff's motion for default judgment and defendant Contreras's motion to dismiss the complaint. For the reasons that follow, both motions are denied.

BACKGROUND

Plaintiff Joe Hand Promotions commenced this action against the Defendants on January 9, 2003.*fn1 In the complaint, plaintiff alleged that it was granted the right, by contract, to distribute the November 11, 2000 Lewis/Tua boxing match via closed circuit television and encrypted satellite signal. Plaintiff subsequently entered into agreements with various establishments in New York state, allowing them to exhibit the program to their patrons. Plaintiff alleges that the Defendants or their agents intercepted the satellite signal and unlawfully exhibited the closed circuit program at Moments Taverna for the purposes of commercial gain, in violation of 47 U.S.C. § 605(a) and 47 U.S.C. § 553.*fn2 Plaintiff also alleges that the Defendants or their agents modified a device or utilized equipment unlawfully, knowing or having reason to know that the device was primarily of assistance in the unauthorized decryption of satellite cable programming, in violation of 47 U.S.C. § 605(e)(4).*fn3

Plaintiff initially filed its complaint against Maria Fernanda Mendez and Moments Taverna. Service was made on the corporate defendant Moments Taverna on January 24, 2003, by service upon the Secretary of State of New York authorized to accept service on its behalf. Personal service was made upon Defendant Maria Mendez on March 24, 2003. No answer or appearance was made by the defendants, and on August 12, 2004, Plaintiff moved for default judgment. By Order dated September 3, 2004, I entered judgment, by reason of default, against defendants Maria Mendez, individually and as an officer, director, shareholder and principal of Moments Taverna, and against Moments Taverna. Subsequently, Maria Mendez moved to vacate the default judgment, and, by order dated March 23, 2005, I granted her motion.

On May 12, 2005, Plaintiff moved for an order dismissing Maria Mendez from the case, a motion which I granted on May 23, 2005. Also on May 12, 2005, Plaintiff filed an Amended Complaint naming Alex Contreras, individually and as an officer, director, shareholder, and/or principal of Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna, and Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna as Defendants. The Clerk's notation of default indicates that Defendant Contreras "was served with a copy of the Amended Summons and First Amended Complaint on June 2, 2005, by affixing a copy of the Amended Summons and First Amended Complaint to the door of the defendant's residence..., that the Process Server attempted to serve the defendant on May 26, 2005 at 8:16p.m., May 28, 2005 at 7:10a.m., May 31, 2005 at 4:42p.m., June 2, 2005 at 3:52p.m., and that on June 3, 2005, the Process Server mailed a copy of the summons and complaint to the defendant...." No answer or appearance was made by Contreras or Moments Taverna, and on July 12, 2005, Plaintiff again moved for default judgment. By Order dated July 20, 2005, I entered a default judgment against Defendants Alex Contreras, individually and as an officer, director, shareholder, and principal of Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna, and against Moments Taverna, Inc. d/b/a Moments Taverna a/k/a Moments Laverna (the "Default Judgment"). On August 1, 2005, Defendant Contreras, acting pro se, filed a letter stating that he had not received notice of Plaintiff's action, and that Plaintiff had fabricated the events set forth in the complaint. On August 19, 2005, I issued an Order to Show Cause why the default judgment should not be vacated, and on plaintiff's request, the matter was taken on submission.

On February 13, 2006, by written memorandum opinion and order, I vacated the default judgment and directed defendants to move, answer, or otherwise respond to the complaint within thirty days. Defendants failed to answer, and on March 28, 2006, plaintiff again moved for default judgment. Two days later, pro se defendant Alex Contreras filed a letter stating that he never received the February 13, 2006 opinion and that "if indeed I had received such documents a reply would have been issued...." On April 5, 2006, I issued an Order to Show Cause why plaintiff's motion for default judgment should not be granted, and directed defendants to file a response to plaintiff's motion by April 25, 2006.

On April 25, 2006, defendant Contreras filed a document entitled, "Defendant's Response to Dismiss Plaintiff's Complaint."*fn4 Contreras argues that plaintiff "has fabricated the course of events that they have reported to the courts." Specifically, Contreras states that to his knowledge, the boxing event was not shown that night, and that only soccer matches were ever shown at the establishment. Further, Contreras states that on Saturday nights, the establishment is converted to a night club, and patrons are not charged admission fee. Accordingly, there would be no financial benefit to showing a boxing match. Contreras also argues that plaintiff Joe Hand is targeting "Hispanic establishments," by filing similar "false" lawsuits against them and settling out of court. Contreras attacks the evidence presented by Joe Hand as insufficient, and states that Joe Hand has become a nuisance in his neighborhood. Finally, he states that letters from the Court should be sent to 456 North High Street, Mount Vernon, NY 10552.

In response, plaintiff argues that the default judgment should be reinstated because defendant Contreras did receive the February 13, 2006 opinion and because defendants have acted in bad faith in that they are not interested in litigating or settling the action. Plaintiff also argues that the motion to dismiss the complaint should be denied.

For the reasons that follow, plaintiff's motion to reinstate the default judgment is denied, and defendant's motion to dismiss the complaint is denied.

DISCUSSION

Plaintiff's Motion for Default Judgment

Rule 55(c) of the Federal Rules of Civil Procedure provides that "[f]or good cause shown the court may set aside an entry of default judgment, and if judgment by default has been entered, may likewise set it aside in accordance with 60(b)." Fed.R.Civ.P. 55(c). Rule 60(b) authorizes the court to relieve a party from final judgment based on grounds including "mistake, inadvertence, surprise, or excusable neglect" or for "any other reason justifying relief from the operation of the judgment." Fed. R. Civ. P. 60(b).

The Second Circuit has set forth three criteria in determining whether to vacate a default judgment: "(1) whether the default was willful; (2) whether defendant has a meritorious defense; and (3) the level of prejudice that may occur to the non-defaulting party if relief is granted." American Alliance Ins. Co., Ltd. V. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996)(quoting Davis v. Musler, 713 F.2d 907, 915 (2d Cir.1982). Given this Circuit's strong preference "for resolving disputes on the merits," Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 95 (2d Cir.1993), all doubts must be resolved in the defendant's favor. See David v. Musler, 713 F.2d 907, 915 (2d Cir.1983)(stating that all doubts should be resolved in favor of those seeking relief from default). The Second Circuit has further held that "'[t]he extreme sanction of a default judgment must remain a weapon of last, rather than first, resort,' which should only be imposed 'upon a serious showing of willful default.'" Davis v. Musler, 713 F.2d 907, 916 (2d Cir.1983) (internal citations omitted). Moreover, "concerns regarding the protection of a litigant's rights are heightened when the party held in ...


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