United States District Court, S.D. Texas, Laredo Division
GARCIA MARMOLEJO UNITED STATES DISTRICT JUDGE
an anti-piracy case arising under the Federal Communications
Act of 1934, as amended by the Federal Cable Communications
act of 1984, 47 U.S.C. §§ 553 and 605. Plaintiff J
& J Sports Productions, Inc. alleges that Defendant Elsa
Guerrero, individually and d/b/a Lucky City a/k/a Lucky City
Amusement Center, illegally intercepted and displayed its
closed-circuit telecast of the May 3, 2014, Floyd
Mayweather, Jr. v. Marcos Rene Maidana fight.
October 2, 2017, Plaintiff filed a Request for Entry of
Default and a Motion for Final Default Judgment. (Dkt. Nos.
9, 10). Two days later the Clerk of Court entered default
against Defendant because she failed to appear after proper
service. (Dkt. No. 11). Since then, Defendant is still absent
and has not responded to Plaintiff's Motion for Final
seeks statutory damages under 47 U.S.C. § 605 in the
amount of $10, 000, an additional $50, 000 for a willful
violation of the statute, attorney's fees, costs, and
post-judgment interest. For the following reasons, the Court
GRANTS Plaintiff's Motion.
Fifth Circuit law, there are three steps to obtaining a
default judgment: (1) default, (2) entry of default, and (3)
default judgment. N.Y. Life Ins. Co. v. Brown, 84
F.3d 137, 141 (5th Cir. 1996). “A default
occurs when a defendant has failed to plead or otherwise
respond to the complaint within the time required by the
Federal Rules. An entry of default is what the clerk
enters when the default is established by affidavit or
otherwise. After defendant's default has been entered,
plaintiff may apply for a judgment based on such default.
This is a default judgment.” Id.
(citing Fed.R.Civ.P. 55(a)) (footnote omitted).
determining whether a default judgment should be entered
against a defendant, courts have developed a two-part
analysis. First, courts must consider whether entry of
default judgment is appropriate under the circumstances.
Lindsey v. Prive Corp., 161 F.3d 886, 893 (5th Cir.
1998). Factors relevant to this inquiry include: (1) whether
material issues of fact exist; (2) whether there has been
substantial prejudice; (3) whether the grounds for default
are clearly established; (4) whether the default was caused
by a good faith mistake or excusable neglect; (5) the
harshness of a default judgment; and (6) whether the court
would think itself obliged to set aside the default on the
defendant's motion. Id.
courts must assess the merits of the plaintiff's claims
and find a sufficient basis in the pleadings for the
judgment. Nishimatsu Constr. Co. v. Hous. Nat'l
Bank, 515 F.2d 1200, 1206 (5th Cir. 1975). In doing so,
courts accept as true the well-pleaded factual allegations in
the complaint. Id. However, “[t]he defendant
is not held to admit facts that are not well-pleaded or to
admit conclusions of law.” Id.
defendant's default concedes the truth of a
complaint's factual allegations, a plaintiff must still
prove damages. U.S. for the Use of M-Co Constr. v. Shipco
Gen. Inc., 814 F.2d 1011, 1014 (5th Cir. 1987). Damages
are normally not awarded without an evidentiary hearing.
James v. Frame, 6 F.3d 307, 310 (5th Cir. 1993).
“That rule, however, is subject to an exception where
the amount claimed is a liquidated sum or one capable of
mathematical calculation.” Id. (citations
The Appropriateness of Default Judgment
case, the Court finds that the six Lindsey factors,
outlined above, weigh in favor of granting default judgment.
First, Defendant has not filed any responsive pleadings, so
no material facts are in dispute. See Nishimatsu
Constr., 515 F.2d at 1206 (noting that the
“defendant, by his default, admits the plaintiff's
well-pleaded allegations of fact”). Second,
Defendant's “failure to respond threatens to bring
the adversary process to a halt, effectively prejudicing
Plaintiff's interests.” Ins. Co. of the W. v. H
& G Contractors, Inc., No. CIV.A. C-10-390, 2011 WL
4738197, at *1 (S.D. Tex. Oct. 5, 2011) (citing
Lindsey, 161 F.3d at 893). Third, the grounds for
default are clearly established, as Defendant has failed to
answer or defend. Fourth, there is no evidence before the
Court indicating that Defendant's silence is the result
of a good-faith mistake or excusable neglect. Fifth, the
harshness of default judgment is mitigated as time passes
without an appearance or filing from an opposing party, which
in this case has been over eight months. Cf. J & J
Sports Productions, Inc. v. Rivera, CIV. A. H-13-902,
2014 WL 353347, at * 2 (S.D. Tex. July 14, 2014) (noting that
the harshness of default judgment was mitigated where 15
months had passed without the defendant making an appearance
of filing in the case). Sixth, the Court is unaware of any
facts that would give rise to good cause to set aside the
default if challenged by Defendant. Thus, the Court finds
that entry of default judgment is appropriate here.
The Basis for Judgment in the Pleadings
605 of the Communications Act governs the “unauthorized
publication or use of communications.” 47 U.S.C. §
605(a). “An individual violates section 605 by
displaying an intercepted communication.” J & J
Sports Prods., Inc. v. Lopez, No. CIV. A. H-10-1504,
2011 WL 175875, at *1 (S.D. Tex. Jan. 18, 2011). The
aggrieved party may elect to receive actual damages or
statutory damages “in a sum of not less than $1, 000 or
more than $10, 000, as the court considers just.” 47
U.S.C. § 605(e)(3)(C)(i)(II). The Court may, in its
discretion, award additional damages not more than $100, 000
if the “violation was committed willfully and for