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Comcast Cable Communications, LLC v. McGowan

October 25, 2006

COMCAST CABLE COMMUNICATIONS, LLC, PLAINTIFF,
v.
JEFF MCGOWAN, DEFENDANT.



The opinion of the court was delivered by: Kugler, United States District Judge

OPINION

This matter comes before the Court upon an unopposed motion by Plaintiff Comcast Cable Communications, LLC ("Comcast") for entry of a default judgment against Defendant Jeff McGowan ("Defendant"), pursuant to Federal Rule of Civil Procedure 55(b)(2), for failure to appear, answer, or otherwise defend in this matter. For the reasons set forth below, the Court will deny Comcast's motion without prejudice.

I. BACKGROUND

Comcast operates cable television systems, providing programming services to paying consumers. Comcast subscribers purchase "Basic" or "Standard" tier packages for a set monthly rate and can then add various "Premium" programming services for additional monthly charges of $7.00 to $13.00 per service. Comcast also offers "pay-per-view" programming, allowing subscribers to purchase individual movies, sporting events, or other entertainment for a "per event" fee, ranging from $4.00 to $49.99, in addition to the cost of the subscriber's regular monthly subscription.

Comcast protects its services from unauthorized reception by encoding, or "scrambling," its proprietary signals. Comcast provides subscribers with a decoding device that unscrambles the appropriate purchased services, enabling customers to view the programs for which they paid. Programming that the customer has not purchased remains scrambled and unviewable on the subscriber's television set.

According to Comcast, Defendant purchased a "pirate" converter-decoder device on February 25, 1999, from Modern Electronics, Inc., to intercept Comcast's cable programming without paying for the service. Comcast filed the above-captioned suit against Defendant on October 4, 2004, seeking an injunction and monetary damages pursuant to the Communications Act of 1934, as amended, 47 U.S.C. § 553. Defendant was served with process on October 26, 2004. Defendant failed to file an answer to the Complaint, and on January 25, 2005, upon request by Comcast, the Clerk of the Court entered Default against Defendant. On February 16, 2005, after default had been entered against him, Defendant file a letter with the Court that denied all allegations made against him by Comcast. On May 10, 2005, Comcast moved for leave to amend its Complaint, and this motion was granted on June 27, 2005. Comcast filed its Amended Complaint on June 28, 2005 and served it upon Defendant by regular mail. Defendant did not file an Answer to the Amended Complaint.

On January 26, 2006, a scheduling conference was held before Magistrate Judge Rosen. In attendance were Comcast, represented by counsel, and Defendant, appearing pro se. Comcast informed Judge Rosen that Defendant had not filed an Answer to the Amended Complaint, whereby Defendant claimed to have never received the Amended Complaint. As a result, pursuant to Judge Rosen's instructions, Comcast effected service of process upon Defendant on January 29, 2006. On March 9, 2006, Comcast served Defendant by regular mail with Requests for the Production of Documents, Interrogatories, and Requests for Admissions. Defendant did not file an answer to the Amended Complaint, nor did he respond to Comcast's discovery requests.

On April 26, 2006, Comcast made another request for the Clerk of the Court to enter Default against Defendant. This request was denied.

Noting that the Clerk's entry of Default on January 25, 2005 was never vacated, Comcast now moves for entry of default judgment, including an award of statutory damages in the amount of $250.00 to $10,000.00 pursuant to § 553(c)(3)(A)(ii), costs in the amount of $204.95, and attorney's fees in the amount of $5,270.50. Comcast also seeks to enjoin Defendant from committing any further violations of § 553(a)(1).

II. DEFAULT JUDGMENT STANDARD

Federal Rule of Civil Procedure 55(b)(2) authorizes courts to enter a default judgment against a properly served defendant who fails to file a timely responsive pleading. Anchorage Assoc. v. Virgin Is. Bd. of Tax Rev., 922 F.2d 168, 177 n.9 (3d Cir. 1990) ("When a defendant fails to appear . . . , the district court or its clerk is authorized to enter a default judgment based solely on the fact that the default has occurred."). The entry of a default judgment is largely a matter of judicial discretion, although the Third Circuit has emphasized that such "discretion is not without limits, however, and we have repeatedly stated our preference that cases be disposed of on the merits whenever practicable." Hritz v. Woma Corp., 732 F.2d 1178, 1181 (3d Cir. 1984) (citations omitted).

III. ANALYSIS

Comcast argues that Defendant in this action has defaulted, as Defendant's answer to Comcast's initial Complaint was untimely, and filed only after the Clerk had entered Default against Defendant. Furthermore, Defendant has failed to file an answer to Comcast's Amended Complaint, despite being re-served pursuant to Judge Rosen's instructions. Finally, Comcast argues that Defendant has not responded to Comcast's requests for discovery.

While it is true that Defendant's answer to Comcast's initial Complaint was untimely, he nonetheless did file an Answer denying all allegations made by Comcast: "In answer to all summary of claims - I did not purchase nor do I or ever have owned any such device." (Answer at 1.) The fact alone that this Answer was not timely filed is insufficient for Default to be entered against Defendant, especially given the fact that Defendant is appearing pro se. See Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993) ("A party appearing without counsel is afforded extra leeway in meeting the procedural rules governing ...


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