United States District Court, M.D. Alabama, Eastern Division
REPORT AND RECOMMENDATION OF THE MAGISTRATE
M. BORDEN UNITED STATES MAGISTRATE JUDGE
to 28 U.S.C. § 636(b)(1), this case was referred to the
undersigned United States Magistrate Judge for consideration
and disposition or recommendation on all pretrial matters as
may be appropriate. Doc. 15. Pending before the court is
Plaintiff Joe Hand Promotions, Inc.'s Motion for Entry of
Default Judgment against Defendant Malcolm Phaneuf,
individually and as an officer, director, shareholder and
principal of Glory Days Enterprises, Inc. d/b/a Glory Days
Two and against Glory Days Enterprises, Inc. d/b/a Glory Days
Two. Doc. 31.
reasons stated herein, the Magistrate Judge RECOMMENDS that
the Motion for Entry of Default Judgment be GRANTED.
Hand Promotions filed a complaint in this case for violations
of the federal Communications Act, specifically 47 U.S.C.
§ 553 and 47 U.S.C. § 605. Joe Hand Promotions
alleges that Glory Days Enterprises and Malcolm Phaneuf
violated those statutes by willfully intercepting or
receiving interstate communication of Ultimate Fighting
Championship® 187: Johnson v. Cormier and
Ultimate Fighting Championship® 190: Rousey
v. Correria and publishing those programs to patrons at
Glory Days Two, an establishment operated by the defendants.
summons was served on Phaneuf in Phenix City, Alabama on
March 4, 2017. Doc. 26. A summons was served on Glory Days
Enterprises through Phaneuf in Phenix City, Alabama, also on
March 4, 2017. Doc. 27. The record reflects that the return
receipt was filed with the court. After the Defendants failed
to submit a responsive pleading or otherwise appear, on
September 13, 2017, Joe Hand Promotions filed an application
with the Clerk of Court for an Entry of Default. On September
22, 2017, the Clerk of Court entered a default against Glory
Days Enterprises, Inc. d/b/a Glory Days Two and Malcolm
Phaneuf. Doc. 28.
Hand Promotions filed a Motion for Default Judgment with
accompanying documents on October 2, 2017. The motion was
denied with leave to re-file due to several deficiencies in
the motion and supporting documents. Doc. 30. The instant
motion was filed on March 6, 2018 with corrected
documentation in support.
STANDARD OF REVIEW
Rule 55(b)(2) of the Federal Rules of Civil Procedure, a
district court may enter a default judgment against a
defendant who was properly served and who has failed to
defend or appear. Fed.R.Civ.P. 55(b)(2); see also Surtain
v. Hamlin Terrace Found., 789 F.3d 1239, 1244 (11th Cir.
2015). When a default judgment is entered, the court accepts
all of the complaint's factual allegations as true.
See, e.g., Cohan v. Sparkle Two,
LLC, 309 F.R.D. 665, 666 (M.D. Fla. 2015). However,
“[w]hile a defaulted defendant is deemed to admit the
plaintiff's well-pleaded allegations of fact, he is not
held to admit facts that are not well-pleaded or to admit
conclusions of law.” Surtain, 789 F.3d at 1245
(internal quotation marks omitted). Thus, the court may only
enter a default judgment if the complaint's factual
allegations “provide a sufficient legal basis for entry
of a default judgment.” Cohan, 309 F.R.D. at
Eleventh Circuit, this standard is akin to the standard
applied in a motion to dismiss for failure to state a claim
under Federal Rule of Civil Procedure 12(b)(6).
Surtain, 789 F.3d at 1245. Therefore, the court must
determine whether the complaint “‘contain[s]
sufficient factual matter, accepted as true, to state a claim
to relief that is plausible on its face.'”
Id. (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)) (internal quotation marks omitted).
“This plausibility standard is met ‘when the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.'” Surtain, 789
F.3d at 1245 (quoting Iqbal, 556 U.S. at 662). The
Eleventh Circuit has cautioned, however, that “there is
a strong policy of determining cases on their merits, ”
and default judgments are therefore viewed with
“disfavor.” In re Worldwide Web Sys.,
Inc., 328 F.3d 1291, 1295 (11th Cir. 2003).
the court is satisfied that a default judgment is warranted,
the court “turns to the terms of the judgment.”
Cohan, 309 F.R.D. at 667. “A default judgment
must not differ in kind from, or exceed in amount, what is
demanded in the pleadings.” Fed.R.Civ.P. 54(c). Under
Rule 55, the court may conduct hearings or make referrals to
determine the amount of damages and establish the truth of
any factual allegation. Fed.R.Civ.P. 55(b)(2). “Thus,
in order to enter a default judgment, the Court must find
that an adequate showing has been made as to liability and
the kind or amount of damages or other relief.”
Cohan, 309 F.R.D. at 667.
were properly served and failed to defend or appear, so the
court turns to the analysis for considering a default
judgment, specifically: (1) jurisdiction, (2) liability, and
(3) damages. See Pitts v. Seneca Sports, Inc., 321
F.Supp.2d 1353, 1356 (S.D. Ga. 2004). This court has subject
matter jurisdiction pursuant to 28 U.S.C. § 1331. The
remaining considerations of liability and damages are