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DISH Network L.L.C. v. Barrett

United States District Court, S.D. Mississippi, Southern Division

December 14, 2016

DISH NETWORK L.L.C., ECHOSTAR TECHNOLOGIES L.L.C., and NAGRASTAR LLC PLAINTIFFS
v.
JOHN BARRETT DEFENDANT

          ORDER GRANTING PLAINTIFFS' MOTION FOR DEFAULT JUDGMENT AS TO DEFENDANT JOHN BARRETT

         BEFORE THE COURT is a Motion [7] for Default Judgment as to Defendant John Barrett filed by Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar LLC, on October 24, 2016. After due consideration of Plaintiffs' Motion, the record, and relevant legal authority, the Court is of the opinion that Plaintiffs' Motion should be granted.

         I. BACKGROUND

         Plaintiffs DISH Network L.L.C., EchoStar Technologies L.L.C., and NagraStar LLC filed their Complaint [1] on August 10, 2016, naming as Defendant John Barrett. The Complaint alleges that Defendant violated the Digital Millennium Copyright Act, 17 U.S.C. § 1201(a)(1), the Federal Communications Act, 47 U.S.C. § 605(1), and the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520, when he willfully intercepted NagraStar's “control words” and DISH Network's satellite transmissions of television programming for his own benefit, without authorization, for tortious and illegal purposes or for commercial advantage or private gain. Compl. [1] at 7-9. The Complaint seeks a grant of permanent injunctive relief, an order of impound of certain items, actual or statutory damages under each Act, punitive damages, costs, attorneys' fees, investigative expenses, pre-judgment interest, and post-judgment interest. Id. at 9-10.

         On September 9, 2016, Plaintiffs filed a Proof of Service [4], reflecting that a Summons and the Complaint were personally served upon Defendant on August 25, 2016. Defendant's Answer was therefore due by September 15, 2016. On September 28, 2016, Plaintiffs applied [5] for a Clerk's entry of default against Defendant, since he had not at that time filed a responsive pleading. A Clerk's Entry of Default [6] was entered on September 28, 2016. Plaintiffs then moved [7] on October 24, 2016, for this Court to enter a Default Judgment as to Defendant with respect to Count III of the Complaint [1] for alleged violations of the Electronic Communications Privacy Act, 18 U.S.C. §§ 2511(1)(a) and 2520 (“ECPA”). Mot. for Default J. [7] at 1. Plaintiffs seek an award of statutory damages in the amount of $10, 000.00, and a permanent injunction. Id.

         II. DISCUSSION

         A. Plaintiffs are entitled to a default judgment against Plaintiff.

         Pursuant to Federal Rule of Civil Procedure 55, after a defendant's default has been entered for failure to plead or otherwise respond to a complaint within the time required by the Federal Rules, a plaintiff may apply for a default judgment. N.Y. Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir. 1996). After the clerk enters a default, “the plaintiff's well-pleaded factual allegations are taken as true, except regarding damages.” United States for Use of M-Co Const., Inc. v. Shipco General, Inc., 814 F.2d 1011, 1014 (5th Cir. 1987).

         Given Defendant's failure to answer the Complaint in a timely manner, the Court accepts all well-pleaded factual allegations in the Complaint as true, except those regarding the amount of damages. Id. Plaintiffs' well-pleaded allegations, along with the declarations and other evidence submitted by Plaintiffs in support of the instant Motion, establish that Defendant intentionally intercepted Plaintiffs' scrambled and encrypted electronic communications without authorization, for tortious and illegal purposes, or for commercial advantage or private financial gain, and consequently violated 18 U.S.C. § 2511(1)(a). B. Plaintiffs will be awarded $10, 000.00 in statutory damages.

         The ECPA provides in relevant part that any person who “intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept, any wire, oral, or electronic communication” shall be “fined under this title . . . .” 18 U.S.C. §§ 2511(1)(a), 2511(4). “Encrypted broadcasts of satellite television programming, such as those transmitted by DISH Network, constitute ‘electronic communications' under this statute.” Dish Network L.L.C. v. Horace, No. 1:15-CV-369, 2016 WL 6039217, at *2 (E.D. Tex. Feb. 22, 2016) (citing DirecTV, Inc. v. Bennett, 470 F.3d 565, 567 (5th Cir. 2006)).

         The United States Court of Appeals for the Fifth Circuit has held that “a private right of action is allowed under 18 U.S.C. § 2520 for violations of § 2511.” Bennett, 470 F.3d at 569. Section 2520 provides in relevant part that

[i]n an action under this section, appropriate relief includes--
(1) such preliminary and other equitable or declaratory relief as may be appropriate;
(2) damages under subsection (c) and punitive damages in appropriate cases; and
(3) a reasonable attorney's fee and other litigation costs ...

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