99 Civ. 5050 (RCC).
October 13, 2005
Before the Court is Defendant Deno Okolo's ("Defendant" or "Okolo") application by order to show cause for an order vacating the default judgment entered against him. For the reasons explained below, Defendant's application is denied.
Plaintiff Cablevision Systems brought this theft-of-cable-services action against Okolo and eight other defendants pursuant to the Cable Communications Policy Act, 47 U.S.C. §§ 553, 605. In a complaint filed in July 1999, Plaintiff alleges that in November 1994, while residing at 4116 Baychester Avenue, a person named Deno Okolo allegedly purchased a descrambler from Freedom Electronics and used it to access unauthorized cable services.
Plaintiff served Okolo by leaving a copy of the summons and complaint with a person named Kawalie Okolo, a black female, age thirty-five, approximately five feet, six inches, and 135 pounds on July 29, 1999 at 4116 Baychester Avenue. Cassell Aff. ¶ 6, Ex. F. Plaintiff's process service mailed a copy of the summons and complaint to Okolo's attention at the same address on July 30, 1999. Id. Okolo's wife would have been thirty-six years old on the day the process server left the summons and complaint at Okolo's address. Id. She is the only female person named Okolo at the address. Id. ¶ 4. Okolo did not respond to the complaint or the notices of court conferences and the Court entered a default judgment against him on December 22, 2000.
Okolo admits to residing at 4116 Baychester Avenue in the Bronx, but claims his name is Dennis, not Deno. Okolo Aff. ¶ 4. He claims no person named Kawalie Okolo or fitting the description given by the process server lived at the Baychester Avenue address. Okolo claims his wife is two inches shorter and twenty pounds lighter than the person the process server described in her affidavit. Edozie Aff. ¶ 3. He claims he only became aware of the default judgment in November 2002, when his employer notified him of a lien on his paycheck. Okolo Aff. ¶ 5.
As his defense, Okolo claims that at some point before the litigation commenced he talked to a Cablevision investigator about the matter who allegedly told Okolo that if his name was not Deno Okolo he had nothing to worry about. Okolo asserts that the invoice for the descrambler lists Deno Okolo, not Dennis Okolo, and is not signed. He also claims that during the time in which he is alleged to have stolen cable services he was actually a cable subscriber and would have no need for stolen services.
Plaintiff argues that Okolo cannot be heard to argue that he did not buy the descrambler simply because the invoice is made out to Deno Okolo instead of Dennis Okolo. Okolo's full name is Dennis O. Okolo, and the invoice accurately reflects his address and telephone number. Cassell Aff. ¶ 4, Ex. B. Plaintiff also brings to the Court's attention nine instances in which the Court or Plaintiff sent correspondence to Okolo regarding the litigation at the Baychester Avenue address, none of which was returned by the post office. See Cassell Aff. ¶¶ 7-8. In Plaintiff's view, it is "inconceivable" that Okolo was not aware of the lawsuit against him.
Federal Rule of Civil Procedure 55(c) states, "For good cause shown the court may set aside an entry of default and, if a judgment by default has been entered, may likewise set it aside in accordance with Rule 60(b)." Courts consider three factors in determining whether to vacate a default judgment: (1) willfulness of the default, (2) presentation of a meritorious defense, and (3) potential prejudice to the opposing party. DirecTV, Inc. v. Rosenberg, No. 02 Civ. 2241 (RCC), 2004 WL 345523, *2 (S.D.N.Y. Feb. 24, 2004). The Second Circuit has a strong preference for resolving disputes on their merits. Shaw v. New York State Dep't of Civil Serv., 168 F.3d 610, 615 (2d Cir. 1999). But "when the adversary process has been halted because of an essentially unresponsive party, default judgment is appropriate to protect the non-defaulting party from interminable delay and continued uncertainty as to his rights." Sony Corp. v. SWI Trading Inc., 104 F.R.D. 535, 540 (S.D.N.Y. 1985). A court has discretion to enforce the default judgment, however, if it is convinced that the default was willful and it is convinced that the defendant does not have a meritorious defense. SEC v. McNulty, 137 F.3d 732, 738 (2d Cir. 1998).
The Second Circuit has held that wilfulness in the context of a judgment by default requires "something more than mere negligence," such as "egregious or deliberate conduct," although the "degree of negligence in precipitating a default is a relevant factor to be considered." Am. Alliance Ins. Co. v. Eagle Ins. Co., 92 F.3d 57, 59 (2d Cir. 1996). Here, Okolo admits to living at the address where the process server left copies of the summons and complaint for him and mailed copies of both to him. See Okolo Aff. ¶ 4; Cassell Aff. ¶ 6. He admits to living at the address where the Court and Plaintiff's counsel sent numerous correspondence, including the notice of the court conference, notice that Plaintiff was moving for default judgment, a copy of the Court's default order, notices regarding Plaintiff's submissions on damages, and the Court's default judgment. See Okolo Aff. ¶ 4; Cassell Aff. ¶ 7, Exs. G, H, I, J, K, L, M, N, O. The post office did not return these notices to Plaintiff's counsel or to the Court and Defendant does not provide any credible explanation as to why he did not respond to any of them. The Court can only conclude that Okolo chose to ignore the litigation until his employer notified him that his wages would be affected.
B. Meritorious Defense
The existence of a meritorious defense is a key factor in the Rule 60(b) analysis and "the absence of such a defense is sufficient to support [a] district court's denial" of a Rule 60(b) motion. State Street Bank Trust Co. v. Inversiones Errazuriz Limitada, 374 F.3d 158, 174 (2d Cir. 2004). "In order to make a sufficient showing of a meritorious defense . . . the defendant need not establish his defense conclusively, but he must present evidence of facts that, if proven at trial, would constitute a complete defense." McNulty, 137 F.3d at 740.
Defendant argues that he is not the Deno Okolo on the Freedom Electronics invoice and that he has no need to steal cable services because he is a cable subscriber. Defendant does not dispute that his full name is Dennis O. Okolo, such that the first three letters of his first name and his middle initial would form Deno Okolo on the invoice. Additionally, he does not dispute that the invoice correctly stated his address and telephone number. Finally, as other courts have explained, to steal cable services, one must also be a cable subscriber. See, e.g., Int'l Cablevision, Inc. v. Sykes, 997 F.2d 998, 1000 (2d Cir. 1993) (explaining descramblers are used by cable "subscribers to view programs broadcast on premium channels without paying . . . for these services); Cablevision Sys. Corp. v. Feiner, 96 Civ. 366, slip op. at 3 (E.D.N.Y. Oct. 21, 1997) (explaining "it is possible to purchase an electronic device, commonly known as a "descrambler," which, when connected to equipment installed by Cablevision, allows for the unauthorized reception of blocked signals"); Cablevision Sys. Corp. v. Muneyyirci, 876 F. Supp. 415, 417 (E.D.N.Y. 1994) ("Unscrupulous cable customers are able to gain access to programming they have not paid for by purchasing pirate decoders."). Thus, Okolo's argument that he had no reason to steal services since he already subscribed to cable is not a meritorious defense.
The Court finds that Okolo's default was willful and that he has failed to present a meritorious defense. Okolo's application to vacate the default judgment against him is denied.
For the reasons explained above, Defendant's application for an order vacating the default judgment against him is denied.