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Dengel v. Dearden

February 9, 2007

DIANNE DENGEL, AN INDIVIDUAL, PLAINTIFF,
v.
GREGORY DEARDEN, AND WEATHERGUARD CONSTRUCTION INC. D/B/A WEATHERGUARD ROOFING, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff, Dianne Dengel, ("plaintiff") brings this action for copyright infringement against defendants Gregory Dearden ("Dearden") and Weatherguard Construction Inc. d/b/a Weatherguard Roofing ("Weatherguard") (collectively "defendants") seeking to recover statutory damages plus attorneys' fees and costs as well as injunctive relief. Plaintiff moves for default judgment pursuant to Rule 55 of the Federal Rules of Civil Procedure. Because plaintiff's damages are not pursuant to a debt or sum certain, plaintiff requests that this Court conduct a hearing to ascertain the amount of damages to which she is entitled before a default judgment is entered. The plaintiff also requests this Court to enjoin defendants from continued and willful infringement of plaintiff's copyright. Also for determination is defendants' cross-motion to vacate the entry of default entered by the Clerk of the Court on July 11, 2006.

For the reasons set forth below, plaintiff's motion for default judgment is denied and defendants' cross-motion to vacate entry of default is granted.

BACKGROUND

Plaintiff filed a complaint in this Court on June 8, 2005 alleging copyright infringement against defendants Gregory Dearden and Weatherguard Construction Inc. d/b/a Weatherguard Roofing. On July 10, 2006, plaintiff sought the entry of default as against defendants for their failure to answer the complaint. On the same day, plaintiff filed a Return of Summons alleging that defendants were served by leaving a copy of the Summons and Complaint with Mr. Howard Hang [Han] at Weatherguard's office in El Monte, California on June 12, 2006. However, plaintiff's Return of Summons does not allege that she completed service on Dearden by also mailing a copy of the Summons and Complaint to him. Dearden, the President of Weatherguard, a small family business, was out of town on vacation from June 6, 2006 until July 5, 2006. Upon finding the Summons and Complaint on July 10, 2006, he immediately faxed a copy to his general and corporate counsel, Christian F. Paul.

On July 11, 2006, Mr. Paul wrote to plaintiff's counsel advising that Dearden just returned from vacation and requested that plaintiff allow defendants the opportunity to answer and vacate any default that may have been entered. That same day, the Clerk of the Court made an entry of default against defendants. On July 14, 2006, plaintiff's counsel wrote to Mr. Paul advising that plaintiff would not agree to vacate the Entry of Default. On July 21, 2006, plaintiff moved for default judgment based on defendants' failure to timely respond to the Complaint. Defendants filed a cross-motion to vacate the Entry of Default and an opposition to plaintiff's motion for a grant of a default judgment on grounds that the default was not willful; that defendants have a meritorious defense and no prejudice will result to plaintiff if default is vacated. Plaintiff opposes defendant's motion.

DISCUSSION

I. Plaintiff's Motion for Default Judgment

Rule 55 of the Federal Rules of Civil Procedure, which governs the entry of a default judgment, sets forth a two-step process by which a plaintiff may secure a default judgment against a defendant. Fed.R.Civ.P. 55(a). "[F]irst, a party moving for default judgment must obtain an Entry of Default from the Clerk of the Court pursuant to Fed.R.Civ.P. 55(a) and, second, the moving party must seek a default from the...Court." DIRECTV, Inc. V. Arnold, 392 F.Supp. 2d 415, 416, (N.D.N.Y. 2005). Plaintiff moves for default judgment in its favor pursuant to Rule 55 claiming that defendants failed to file an answer or otherwise respond to plaintiff's complaint in a timely manner and the Clerk of the Court has already filed an Entry of Default.

Plaintiff argues that default is proper since defendants' first contact with plaintiff requesting an extension of time to answer and to vacate any Entry of Default was on July 11, 2006, "a full eight days after Defendants' Answer was due." See Plaintiff's Reply Memo of Law at 2. Further, plaintiff asserts that defendants did not request an extension of time to answer the complaint until after the Answer was due. Moreover, plaintiff contends that she would have had the absolute right to deny an extension whether defendants contacted plaintiff to request such an extension before or after defendants' Answer was due. See id. Thus, plaintiff claims that this Court should grant her motion for default judgment.

Default judgments are, however, disfavored. See Pecarsky v. Galaxiworld.Com Ltd., 249 F.3d 167, 174 (2d Cir.2001) ("A clear preference exists for cases to be adjudicated on the merits."); Shah v. N.Y. State Dept. of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999). The Court prefers a liberal construction of Rule 55 because it is preferable to resolve disputes based on the merits of the case, rather than on the procedural technicalities. See Richardson Greenshields Sec., Inc., v. Int'l Petroleum Corp., 1985 WL 480 at * 3 (S.D.N.Y. 1985). Whether or not default judgment should be entered is a decision that is left to the sound discretion of the Court. See Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980).

Here, once Dearden received a copy of the complaint, he faxed it to his counsel who immediately contacted plaintiff's attorney and requested an extension of time to answer and a stipulation to vacate any default that may have been entered. This exchange occurred in July 2006, just several days after defendants' Answer was due. However, plaintiff refused to vacate the entry of default, thus forcing both parties to expend more time and resources to file motions that do not resolve the merits of this copyright infringement ...


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