Cablevision of Southern Conn., L.P. v. Smith

• Citation: 141 F.Supp.2d 277
• Decision Date: 25 April 2001
• Docket Number: No. CIV.A. 3:99-CV-2545 JC.,CIV.A. 3:99-CV-2545 JC.
• Parties: CABLEVISION OF SOUTHERN CONNECTICUT, LIMITED PARTNERSHIP, Plaintiff, v. Thomas SMITH, Defendant.
• Court: U.S. District Court — District of Connecticut

141 F.Supp.2d 277

CABLEVISION OF SOUTHERN CONNECTICUT, LIMITED PARTNERSHIP, Plaintiff, v. Thomas SMITH, Defendant.

No. CIV.A. 3:99-CV-2545 JC.

United States District Court, D. Connecticut.

April 25, 2001.

COPYRIGHT MATERIAL OMITTED

Catherine Dugan O'Connor, Elizabeth Corwin, Day, Berry & Howard, Stamford, CT, Daniel J. Lefkowitz, Daniel Millman, Lefkowitz, Louis & Sullivan, Jericho, NY, for Plaintiff.

AMENDED MEMORANDUM OF DECISION ON PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT AGAINST THOMAS SMITH [DOCKET NO. 9]

HALL, District Judge.

This is an action for statutory damages for unauthorized interception of cable television services and for the sale and distribution of devices designed to effect the unauthorized interception of cable television services, under 47 U.S.C. §§ 553(a) and 605. Plaintiff Cablevision of Southern Connecticut, L.P. ("Cablevision") seeks a default judgment against defendant Thomas Smith ("Smith"). The court held a hearing on damages in connection with this motion on March 14, 2001. For the reasons stated herein, Cablevision's Motion for Default Judgment against Defendant Thomas Smith [Docket No. 9] is GRANTED.

I. BACKGROUND

The following undisputed facts appear on the record from the complaint and Cablevision's other submissions, the procedural history of this matter, and from the hearing on damages before the court. Cablevision filed this action for statutory damages against Thomas Smith on December 27, 1999.¹ Cablevision alleged in its complaint that Smith illegally sold or otherwise distributed "pirate" cable television descramblers for profit and/or economic gain. Complaint (Dkt. No. 1) at ¶ 18. Cablevision alleged that Smith purchased the "pirate" cable television converter-decoders from Ultimate Mail Order Services of Raleigh, North Carolina, in violation of sections 553(a)(1) and 605(e)(4) of the Communications Act of 1934, as amended, 47 U.S.C. §§ 553(a) and 605(e)(4). Id.

Specifically, the complaint alleges that Cablevision, a Connecticut limited partnership with business offices in Bridgeport, Connecticut, holds a certificate of public conveyance and necessity, pursuant to Connecticut General Statutes §§ 16-331 et seq., to operate a cable television system in a certain franchise area in southern Connecticut, and, accordingly, that Cablevision is a cable operator, within the meaning of 47 U.S.C. §§ 522(5) and 553(a). Id. at ¶¶ 4, 6. The complaint further alleges that Cablevision provides cable service within the meaning of 47 U.S.C. § 522(6), to certain customers who are authorized to receive a particular level of service and certain other order-specific video programming. Id. at ¶¶ 6-8. According to the complaint, each subscriber is entitled to receive only those programming services he selects and purchases. Id. at ¶ 9.

Cablevision claims that its cable signals include communications services offered over a cable system and satellite cable programming and, accordingly, are private communications not intended for public or other use without authorization. Id. at ¶¶ 10, 17. Cablevision alleges that its signals for premium programming services and for certain "Pay-Per-View" services are electronically coded or scrambled so that they must be decoded by electronic decoding equipment in order for the signals to be viewed clearly on a television set. Id. at ¶¶ 11, 13. Cablevision provides customers with such equipment to permit the subscriber to view only the level of service and programming that he or she has purchased. Id. at ¶ 12. Cablevision alleges that certain unauthorized "pirate" decoders or descramblers exist that have been designed to defeat the scrambling or security functions of Cablevision's cable system. Id. at ¶ 14. Such a device can allow an individual to receive, without paying the applicable charges to Cablevision, unlimited pay-per-view movies at approximately $4 each and pay-per-view events for which Cablevision charges authorized subscribers up to $39.99 each. Id. at ¶ 15. The use of a "pirate" device could also allow an individual access to premium services, such as Showtime and other "movie channels" for which the price ranges from $7 to $13 per month. Id.

The complaint alleges that Smith has been engaged in a scheme to illegally sell or otherwise distribute "pirate" cable television descramblers for profit and/or economic gain. Id. at ¶ 18. According to the complaint, after Smith purchased illegal decoders from Ultimate Mail Order Services of Raleigh, North Carolina, he

then resold, redistributed, and assisted in the sale or distribution of such equipment to subdistributors, purchasers, and end-users with the specific intent and knowledge that such devices would be used to descramble, decode, and thereby provide reception of the scrambled premium and pay per view programming services of Cablevision to person who were neither paying for those services nor authorized by plaintiff to receive such programming.

Id.; see also id. at ¶ 19. Cablevision further alleges that "Smith is also engaged in an ongoing scheme to intercept and obtain plaintiff's cable television programming services without making payment therefor." Id. at ¶ 20. Smith, according to Cablevision's complaint, "has utilized unauthorized `pirate' cable television converter-decoder devices which he has obtained from Ultimate Mail Order Services with the specific intent that the devices be used to decode plaintiff's scrambled cable television programming services without plaintiff's authorization." Id. Cablevision further claims that "[t]he `pirate' converter-decoders that defendant obtained from Ultimate Mail Order Services and thereafter resold, redistributed, and used have been modified to circumvent the encryption technology used by Cablevision on its premium and pay per view services." Id. at ¶ 21. "These pirate devices have the capability to unlawfully descramble all scrambled `premium' and pay per view cable television programming transmitted on Cablevision's system." Id. Cablevision alleges that, in so doing, Smith willfully and intentionally violated 47 U.S.C. § 553(a)(1) and 47 U.S.C. §§ 605(a) & 605(e)(4), because Cablevision did not authorize or consent to Smith's use, sale, or distribution of "pirate" converter-decoders. Id. at ¶¶ 23-32.

On February 5, 2000, Cablevision effected personal service of the summons and complaint upon Smith at his residence at 76 Berkeley Place, Bridgeport, Connecticut. Return of Service (Docket No. 3). Smith failed to appear and to file his answer to the complaint within twenty days after this service, as required by Fed. R.Civ.P. 12(a)(1)(A). Affirmation in Support of Motion for Default Judgment Against Defendant Thomas Smith (Docket No. 10) at ¶ 4. Accordingly, on November 5, 2000, Cablevision filed a Request to Clerk to Enter Default against Smith, which was sent via first-class mail to Smith's residence. Docket No. 7. Smith did not appear or oppose Cablevision's request for entry of judgment. On November 13, 2000, the clerk entered a default against Smith and directed that a Motion for Default Judgment pursuant to Fed. R.Civ.P. 55(b) be filed within 30 days. See Fed.R.Civ.P. 55(a). On December 26, 2000, Cablevision filed its motion for entry of default judgment against Smith, which was sent via first-class mail to Smith's residence. Motion for Default Judgment Against Defendant Thomas Smith (Docket No. 9). As of March 23, 2001, Smith has not appeared and has not submitted any opposition to Cablevision's motion.

At the hearing on damages, Cablevision submitted an Affirmation of Daniel Millman, Esq., of Services in Support of Inquest [Docket No. 14], for purposes of setting forth Cablevision's requested attorneys' fees for its action against Smith. Annexed thereto is an itemized chart of contemporaneous time records identifying: (1) the attorney or paralegal who worked on the matter; (2) the date; (3) the time spent by each attorney and paralegal; and (4) a brief narrative of the work performed. The Millman Affirmation further explains how the fees sought in the matter were calculated. At the hearing on damages, Attorney Millman also orally represented that he had spent an additional five hours on the case since the time he prepared the Affirmation through the hearing. He also described the basis for his hourly rate of $170/hour, including his education and experience. Cablevision's aggregate attorneys' fees, according to this Affirmation and oral representation, amount to $2,881, for its services in prosecuting an action against Smith pursuant to 47 U.S.C. § 605(e)(3)(B)(iii). Affirmation of Services in Support of Inquest (Docket No. 14) at ¶ 6.

II. DISCUSSION

A. Standards

It is well established that a party is not entitled to a default judgment as of right; rather the entry of a default judgment is entrusted to the "sound judicial discretion" of the court. Shah v. N.Y. State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir.1999). In determining whether to enter a default judgment, the court is free to consider a number of factors. Among these are: (1) the amount of money involved; (2) whether issues of fact or of substantial public importance are at stake; (3) whether the default is largely technical; (4) whether the plaintiff has been substantially prejudiced by the delay involved; (5) whether the grounds for default are clearly established or are in doubt; (6) whether the default was caused by a good-faith mistake or excusable neglect; (7) how harsh an effect a default judgment might have; and (8) whether the court thinks it later would be obligated to set aside the default on defendant's motion. 10 Moore's Federal Practice § 55.20[2][b] (3d ed.1999); see also Pinaud v. County of Suffolk, 52 F.3d 1139, 1152 n. 11 (2d Cir.1995) (citing with approval Moore's as detailing factors to be considered in entering default judgment); Feeley v. Whitman Corp., 65 F.Supp.2d 164, 171 (S.D.N.Y.1999) (listing factors). It is also true that "in civil c...