J&J Sports Prods., Inc. v. Spears
| Docket Number | Case No. CIV-18-126-D |
| Decision Date | 24 April 2023 |
| Citation | 670 F.Supp.3d 1273 |
| Parties | J & J SPORTS PRODUCTIONS, INC., Plaintiff, v. Tasha SPEARS, individually and d/b/a Que-Dee'z Sports Lounge; et al., Defendants. |
| Court | U.S. District Court — Western District of Oklahoma |
Adam S. Weintraub, Savage O'Donnell Affeldt & Weintraub, Tulsa, OK, for Plaintiff.
Tony Gould, Brown & Gould PLLC, Oklahoma City, OK, for Defendants.
Before the Court is Defendant's Motion to Vacate Default Judgment [Doc. No. 18], filed by Defendant Tasha Spears. Plaintiff has timely opposed the Motion [Doc. No. 19], and Defendant has replied [Doc. No. 20]. Thus, the matter is at issue.
The Court entered the Default Judgment [Doc. No. 17] against all defendants on October 1, 2018, for statutory damages under the Communications Act of 1934 as amended, 42 U.S.C. § 605, plus attorney fees and costs, in the total amount of $22,709.89. The Court determined based on Plaintiff's motion under Fed. R. Civ. P. 55(b), supporting evidence, and the case record, that Defendants willfully violated § 605(a) through the unlawful interception and exhibition of an encrypted broadcast of Jessie Vargas v. Manny Pacquiao WBO World Welterweight Championship Fight Program on November 5, 2016, in their commercial establishment located at 1908 SW Lee Boulevard in Lawton, Oklahoma. From the facts presented, the Court determined that Plaintiff was entitled to recover the maximum statutory award of $10,000.000 and an enhancement of $10,000.00 due to willful conduct, together with an award of reasonable attorney fees and costs. See Order of Oct. 1, 2018 [Doc. No. 16] at 3-4. In granting Plaintiff's motion for default judgment, the Court found that Defendants were timely served, the deadline to answer had expired, the motion was mailed to Defendants' last known addresses, and they had made no response. Id. at 2.
More than four years later, on March 3, 2023, Defendant Tasha Spears filed the present Motion pursuant to Fed. R. Civ. P. 60(b).1 In an attached declaration, Defendant attests that she has lived in Colorado Springs, Colorado, since July 2017 and was unaware of this lawsuit until she received correspondence in February 2023 demanding satisfaction of the judgment and she "ma[de] inquiries on or about February 15, 2023." See Spears Decl. [Doc. No. 18-1] ¶¶ 1, 13-18. Defendant states that, although she lived in Lawton and had an ownership interest in the commercial establishment (Que-Dee'z Sports Lounge) at the time of the broadcast, she relinquished management and control over the business to attend nursing school in 2016, she "had very little involvement with running the day-to-day operations of the Lounge" while she was in nursing school, and she does not recall anything about purchasing a license for the broadcast, exhibiting the broadcast at the lounge, or receiving revenue from it. Id. ¶¶ 2-12. Defendant asks the Court to vacate the Default Judgment because 1) Plaintiff's service of process did not satisfy the statutory requirements and failed to establish jurisdiction, so any judgment is void, and 2) she "did not have actual notice of the legal proceedings or the Default Judgment until recently." See Def.'s Mot. at 1 (emphasis omitted); id. at 5 ().
Plaintiff responds by asserting that Defendant was validly served with process under Oklahoma law in substantial compliance with the statute regarding service by publication, that Defendant does not raise any meritorious defense to Plaintiff's claims, and that Plaintiff would be prejudiced by vacating the default judgment at this late date. Plaintiff contends Defendant fails to show she satisfies all prerequisites to relief under Rule 60(b).2
"The court may set aside an entry of default for good cause, and it may set aside a final default judgment under Rule 60(b)." Fed. R. Civ. P. 55(c). While Defendant's Motion and opening brief are not entirely clear, her reply brief emphasizes that Defendant seeks relief on the ground "the Default Judgment is void because the published notice upon which the Court's jurisdiction was predicated" did not comply with Oklahoma law. See Reply Br. at 1, 3 and 5 () (emphasis in original). Vacating a void judgment is expressly authorized by Rule 60(b)(4).
The Tenth Circuit has explained the application of Rule 60(b)(4) in a case involving allegations of invalid service as follows:
"[A] default judgment in a civil case is void if there is no personal jurisdiction over the defendant." United States v. Bigford, 365 F.3d 859, 865 (10th Cir. 2004) (emphasis and quotation omitted). And "service of process [under Fed. R. Civ. P. 4] provides the mechanism by which a court having venue and jurisdiction over the subject matter of an action asserts jurisdiction over the person of the party served." Okla. Radio Assocs. v. F.D.I.C., 969 F.2d 940, 943 (10th Cir. 1992). Rule 4 permits service of a summons and complaint upon an individual by "following state law for serving a summons in an action brought in courts of general jurisdiction in the state where the district court is located or where service is made." Fed. R. Civ. P. 4(e)(1).
Hukill v. Okla. Native Am. Domestic Violence Coal., 542 F.3d 794, 797 (10th Cir. 2008). Where a plaintiff attempts service under state law but fails to comply with that law, the district court does not obtain personal jurisdiction over the defendants and must vacate a default judgment against them. Id. at 802. Unlike other Rule 60(b) motions, "[w]here Rule 60(b)(4) is properly invoked, 'relief is not a discretionary matter; it is mandatory[.]' " Id. (quoting Orner v. Shalala, 30 F.3d 1307, 1310 (10th Cir. 1994)).3
In this case, Plaintiff served Defendant with process under Oklahoma law and, specifically, a statute authorizing service by publication, Okla. Stat. tit. 12, § 2004(C)(3). This method is only available "when it is stated in the petition . . . or in a separate affidavit by the plaintiff or the plaintiff's attorney filed with the court, that with due diligence service cannot be made upon the defendant by any other method." Id. § 2004(C)(3)(a). The statute requires "publication of a notice signed by the court clerk" for a specified time "in a newspaper authorized by law to publish legal notices." Id. § 2004(C)(3)(c). Also, the statute mandates the contents of the notice and, as pertinent here, requires the following information:
Id. § 2004(C)(3)(c). In assessing the sufficiency of Plaintiff's service under Oklahoma law, the Court must determine whether Plaintiff substantially complied with the statutory requirements. See Hukill, 542 F.3d at 798 ().
Defendant identifies a single defect in Plaintiff's service by publication, that is, the notice did not "adhere to the requirements of Okla. Stat. tit. 12, § 2004(C)(3)(c), . . . to state the 'total amount claimed' if the suit seeks recovery of money." See Mot. at 4-5. Specifically, "the notice published by Plaintiff does not state the amount of damages sought against Defendant," but states only that if Defendants fail to answer, "a judgment will be entered by default for some unspecified amount of statutory damages, costs, and attorney fees prayed for in the complaint." Id. at 5 (emphasis omitted); see Reply Br. at 1 ().
Plaintiff admits the notice "did not specify the exact amount of damages sought" but, instead, stated that a default judgment for damages available under the cited federal statutes would be entered. See Resp. Br. at 3. Plaintiff asserts this "technical defect" is not fatal to its service of Defendant by publication under the totality of circumstances, and substantial compliance occurred. Id. at 4-6. Plaintiff's position is: "The technical defect of saying 'statutory damages' instead of the literal amount of damages in no way impacts [a] conclusion" that Defendant received sufficient notice of Plaintiff's action. Id. at 6.
Neither party cites controlling legal authority for its position. Defendant primarily relies on Mare Oil Co. v. Deep Blue Royalties, LLC, 2003 OK CIV APP 21, 65 P.3d 294. In so doing, Defendant misstates the holding of that case, in which the plaintiff properly served the defendants by publication and obtained a default judgment to collect a debt and foreclose an interest in collateral. Id. ¶ 15, 65 P.3d at 298. The court of appeals held that the plaintiff could not obtain a deficiency judgment after the collateral was sold for less than the amount of the debt because the nonresident defendants were not subject to personal jurisdiction within the state, so the default judgment operated only as an in rem judgment. Id. ¶ 21, 65 P.3d at 299.4 The court found no defect in the service by publication in Mare and no flaw in the default judgment entered based on that service. The Court finds that Mare is inapposite to the issues presented in this case.
Defendant string-cites other Oklahoma cases that are unhelpful; none was an action to recover money in which the published notice allegedly failed to state the amount claimed. See Reply Br. at 4. Defendant appears to cite Public Finance Co. v. Jump, 1943 OK 162, 192 Okla. 368, 136 P.2d 706, for the proposition that substantial compliance is...
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