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Directv, LLC v. Alvarez

United States District Court, D. New Jersey

September 27, 2017

DIRECTV, LLC, Plaintiff,
v.
RIGOBERTO ALVAREZ, Defendant.

          RONALD B. THOMPSON LAW OFFICE OF RONALD B. THOMPSON On behalf of Plaintiff

          WAYNE D. LONSTEIN LONSTEIN LAW OFFICE, P.C. On behalf of Defendant

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         This case concerns Defendant's alleged violation of the Cable Communications Policy Act of 1984, 47 U.S.C. §§ 521 to 573. Presently before the Court is Defendant's motion to vacate the default judgment entered against him. For the reasons expressed below, Defendant's motion will be granted in part.

         I.

         Plaintiff filed a complaint against Defendant on September 14, 2015, alleging Defendant displayed satellite programming at his Atlantic City bar without a commercial account in violation of the Cable Communications Policy Act of 1984. Defendant was served the complaint, but failed to file an answer or otherwise respond.

         On November 20, 2015, Plaintiff filed a Status and Notice of Intention to Move for Default. On December 9, 2015, Plaintiff moved for entry of default. The clerk entered default on January 13, 2016. On February 29, 2016, Plaintiff filed a Status and Notice of Intention to File Default Motion. On March 11, 2016, Plaintiff moved for default judgment.[1] On November 9, 2016, this Court granted Plaintiff's motion for default judgment. Defendant filed a motion to vacate the default judgment on February 27, 2017.

         II.

         Federal Rule of Civil Procedure 55(c) provides: “The court may . . . set aside a final default judgment under Rule 60(b).” Fed.R.Civ.P. 55(c). Federal Rule of Civil Procedure 60(b) provides: “[T]he court may relieve a party . . . from a final judgment” for “mistake, inadvertence, surprise, or excusable neglect” or for “any other reason that justifies relief.” Fed.R.Civ.P. 60(b)(1), (6).

         “A decision to set aside . . . a default judgment pursuant to Fed.R.Civ.P. 60(b) is left primarily to the discretion of the district court.” United States v. $55, 518.05 in U.S. Currency, 728 F.2d 192, 194 (3d Cir. 1984)(footnote omitted) (citing Tozer v. Charles A. Krause Milling Co., 189 F.2d 242, 244 (3d Cir. 1951)). The Third Circuit “does not favor defaults, ” and, “in a close case[, ] doubts should be resolved in favor of setting aside the default and reaching a decision on the merits.” Gross v. Stereo Component Sys. Inc., 700 F.2d 120, 122 (3d Cir. 1983) (citing Farnese v. Bagnasco, 687 F.2d 761, 764 (3d Cir. 1982)).

         A district court must consider four factors in determining whether to vacate a default judgment: “(1) whether lifting the default would prejudice the plaintiff; (2) whether the defendant has a prima facie meritorious defense; (3) whether the defaulting defendant's conduct is excusable or culpable; and (4) the effectiveness of alternative sanctions.” Emcasco Ins. Co. v. Sambrick, 834 F.2d 71, 73 (3d Cir. 1987).[2]

         III.

         This Court will consider each of the four Emcasco factors in turn. First, Plaintiff will not be prejudiced if the default judgment is lifted. Plaintiff argues lifting the default would cause prejudice because of the increased difficulties in conducting discovery and the loss of evidence. Plaintiff specifically argues installation records are not retained for more than three years and, if an installer visited Defendant's establishment as Defendant claims, the installer is likely no longer employed with Plaintiff.

         “[T]o support a finding of prejudice, ” a party can “suggest[] that its ability to pursue the claim has been hindered since the entry of the default judgment” such as by “loss of available evidence, increased potential for fraud or collusion, or substantial reliance upon the judgment.” Feliciano v. Reliant Tooling Co., 691 F.2d 653, 657 (3d Cir. 1982). In this case, however, the evidence Plaintiff claims could be lost is within Plaintiff's control. The installation records are presumably within the exclusive control of Plaintiff, meaning Plaintiff could have (upon Defendant's motion or earlier) preserved any applicable records for discovery if need be. As to an installer no ...


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