The opinion of the court was delivered by: Charles J. Siragusa United States District Judge
INTRODUCTION This matter is before the Court on Plaintiffs' motion for default judgment. (Doc. No. 6). On June 14, 2011, Plaintiffs DISH Network L.L.C., EchoStar Technologies, L.L.C., and NagraStar LLC (collectively, "Plaintiffs"), filed their Complaint against Defendant Salvatore DelVecchio ("Defendant"). (Doc. No. 1.) On August 15, 2011, Plaintiffs filed a Motion for Entry of Default and Motion for Default Judgment for an amount of $10,000 and injunctive relief. (Doc. No. 6.) For the reasons stated below, Plaintiffs' application is granted in full.
Unless otherwise noted the following facts are taken from Plaintiffs' Complaint and are assumed to be true for purposes of this analysis. (Doc. No. 1.) Defendant unlawfully circumvented the DISH Network security system and received encrypted, copyrighted, subscription-based DISH Network satellite television programming without authorization and without payment to DISH Network. Defendant did so through a subscription to the service operated by www.dark-angel.ca ("Dark Angel"). Defendant utilized the Dark Angel service to obtain DISH Network's descrambling control words, which he in turn, used to illegally receive and descramble DISH Network programming. Plaintiffs' Complaint alleges three counts of unlawful conduct:
I. Circumventing a technological measure that effectively controls access to a copyrighted work without authorization by Plaintiffs, in violation of the Digital Millennium Copyright Act ("DMCA"), 17 U.S.C. § 1201(a)(1), by obtaining DISH Network's descrambling control words from the Dark Angel pirate television service and using the control words to view DISH Network's satellite transmissions of television programming;
II. Receiving DISH Network's satellite transmissions of television programming and descrambling control words without authorization by Plaintiffs, in violation of the Communications Act of 1934, as amended, 47 U.S.C. § 605(a); and
III. Intentionally intercepting DISH Network's satellite transmissions of television programming and descrambling control words without authorization by Plaintiffs, in violation of the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2511(1)(a) and § 2520.
Plaintiffs request entry of a default judgment against Defendant on Count III of Plaintiffs' Complaint for violations of §§ 2511(1)(a) and 2520 of the ECPA. (Doc. No. 6.) Plaintiffs further request that the Court dismiss with prejudice Counts I & II of their Complaint if their Motion for Count III is granted. (Id.) Because the Court grants entry of a default judgment on Count III of the complaint, it dismisses Counts I & II of Plaintiffs' complaint.
On June 20, 2011, Defendant was served with the Summons and Complaint. (Doc. No. 5.) On September 16, 2011, Defendant's attorney sent to the Court a copy of a letter, dated September 15, 2011, and addressed to Plaintiffs' counsel in which he noted Defendant's willingness to settle for $2,500; otherwise, as stated in the letter, was not opposing issuance of a default judgment. Plaintiffs submitted evidence that Defendant is not an infant, not an incompetent person, and not on active duty in the military or otherwise exempted under the Service Members' Civil Relief Act.
"Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment." New York v. Green, 420 F.3d 99, 104 (2d Cir. 2005). If a party has failed to plead or otherwise defend an action the opposing party may bring this to the Court's attention. First "Rule 55(a) empowers the clerk of the court to enter a default against a party that has not appeared or defended. Having obtained a default from the clerk of the court, a plaintiff must next seek a judgment by default under Rule 55(b)." Id. Pursuant to Rule 55(b)(2), the non-defaulting party must apply to the Court to request default judgment, but only when the defaulting party has appeared in the action must the non-defaulting party provide advance notice of its motion for default judgment. Fed. R. Civ. P. 55(b)(2).
Here, Defendant was required to serve an answer within twenty-one days after being served and failed to do so. Defendant's only response was the September 15, 2011, letter to Plaintiffs' counsel about a willingness to settle. "Ordinarily, an appearance in an action requires a formal submission to the Court." Green, 420 F.3d at 105.
Circuits are divided on whether anything less than a formal appearance is necessary to actuate the notice requirement of Rule 55(b)(2). The prevailing view is that "the notice requirement contained in Rule 55(b)(2)" applies not only to parties who have formally appeared, but also to those parties who, although delaying in a formal sense by failing to file pleadings within the twenty-day period, have otherwise indicated to the moving party a clear purpose to defend the suit.
Id. "[I]n certain circumstances courts have been willing to find that a party had informally appeared in an action based on settlement discussions, in each of those cases the defendant clearly indicated to the plaintiff that if settlement negotiations failed, the defendant would diligently defend the suit." Id. at 107. There is no indication in his counsel's letter that Defendant intends to defend this suit, and, further, the letter even states that this Court may issue a default judgment. Accordingly, based on the facts of the case at hand and the controlling case law, Defendant has never appeared in this action.
In addition to considering whether the defaulting party has appeared, the Court must also consider, "whether the facts alleged in the complaint are sufficient to state a claim for relief as to each cause of action for which the plaintiff seeks default judgment." Garden City Boxing Club, Inc. v. Giambra, No. 02-CV-839S, 2004 W L 1698633 at *1 (W .D.N.Y. Jul.27, 2004). Other factors the Court must consider when asked to enter a default judgment include: the possibility of prejudice to the plaintiff; the sum of money at stake in the action; the possibility of a dispute concerning material facts; whether the default was due to excusable neglect; and the strong policy favoring decisions on the merits. 10-55 Moore's Federal Practice, Civil § 55.31 (2011). "[A] party's default is deemed to constitute a concession of all well pleaded allegations of liability.." Greyhound Exhibitgroup v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992). A complaint is sufficient if it contains, "sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 129 U.S.1937, 1949 (2009) (citing Bell ...