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 The matter was originally scheduled for hearing on September 26, 2005; however, it

was vacated after the court determined that a hearing was not necessary. Order, filed September

22, 2005.

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

DIRECTV INC., 

 Plaintiff, No. CIV S-04-2409 GEB GGH

 vs. 

JACK TURNBOUGH, ORDER AND

FINDINGS AND RECOMMENDATIONS

 Defendant. 

___________________________/

Presently before the court is plaintiff’s motion for entry of default judgment

against defendant Turnbough, filed August 16, 2005.1 Upon review of the motion and the

supporting documents, and good cause appearing, the court issues the following order and

findings and recommendations.

BACKGROUND

On November 12, 2004, plaintiff filed the underlying complaint in this action

against defendant Turnbough, alleging defendant purchased and used a pirate access device to

permit viewing of plaintiff’s direct broadcast satellite system programming, in violation of, inter

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alia, the Communications Act, 47 U.S.C. § 605(a) and the Federal Wiretap Laws, § 2511(1)(a). 

The complaint alleges defendant Turnbough purchased one Pirate Access Device from Hcard, a

“Scorpion Pro Plus HU Loader.” The summons and complaint were served on defendant

Turnbough on December 9, 2004. Fed. R. Civ. P. 4(e)(2). Pacific Atlantic Trading Co. v. M/V

Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without personal

jurisdiction). Defendant Turnbough filed an answer on December 29, 2004; however, the answer

was stricken when defendant refused to participate in the joint scheduling report. See Order,

filed July 6, 2005. The clerk entered default against defendant Turnbough on July 8, 2005. 

Notice of entry of default and the instant motion for default judgment and

supporting papers were served by mail on defendant Turnbough at his last known address. 

Defendant Turnbough did not file an opposition to the motion for entry of default judgment. 

Plaintiff seeks an entry of default judgment in the amount of $10,000 against defendant

Turnbough. 

DISCUSSION

Entry of default effects an admission of all well-pleaded allegations of the

complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir.

1977). The court finds the well pleaded allegations of the complaint state claims for which relief

can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). 

The court is aware of the discrepancy in the relief requested in the complaint in

the event of default and the relief requested in the instant motion. The complaint requests, in the

event of default, an award of damages pursuant to 47 U.S.C. § 605(e)(4) (The Communications

Act) and pursuant to 18 U.S.C. § 2520(c)(2) (The Wiretap Act). Complaint at 6:25-27. Section

605(e)(4), however, prohibits manufacture, assembly, modification, import, export, sale or

distribution of pirate access devices. It does not apply to possessors or users of pirate devices,

such as defendant. Notwithstanding the prayer of the complaint, the instant motion for default

judgment requests damages pursuant to 18 U.S.C. § 2520(a) or 47 U.S.C. § 605(a). The

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complaint prays for 18 U.S.C. § 2520(c)(2) relief as well as relief under 47 U.S.C.§

605(e)(3)(C)(i)(II) in the event of trial. Complaint at 7:1-2. In any event, 18 U.S.C. § 2520 (a)

does permit a private cause of action against users of pirate devices. Compare Directv, Inc., v.

EQ Stuff, Inc., 207 F. Supp. 2d 1077 (C.D. Cal. 2002) (private cause of action against users of

pirate devices); with Directv v. Amato, 269 F. Supp. 2d 688 (E.D. Va. 2003) (no private cause of

action for possessor of pirate devices). In a private action against a user of a pirate device,

section 2520(c)(2)(B) provides an award of damages in the greater amount of $100 per day or

$10,000. Plaintiff seeks an award of $10,000 against defendant Turnbough.

 Whether to award damages under the wiretap law may be discretionary. 

Compare Nalley v. Nalley, 53 F.3d 649 (4th Cir. 1995); Romano v. Terdik, 939 F. Supp. 144

(D.Conn. 1996); with Menda Biton v. Menda, 812 F. Supp. 283 (D. Puerto Rico 1993) (no

discretion). 

The court deems defaulting defendant, by his failure to appear or defend this

action, to have waived any objections to the statutory source of the damages prayed for in the

instant motion. The memorandum of points and authorities and affidavits filed in support of the

motion for entry of default judgment supports the finding that plaintiff is entitled to the relief

requested. There are no policy considerations which preclude the entry of default judgment of

the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986). 

Attorneys’ Fees and Costs

Directv also seeks $4,463 in attorneys’ fees, and costs in an undetermined amount.

Under 47 U.S.C. § 605(e)(3)(B)(iii), plaintiff is entitled to such fees and costs pursuant to §

605(e)(4). Other than the claimed fees for a hearing which never transpired, the court finds the

requested attorneys’ fees to be reasonable and grants plaintiff’s request in part in the amount of

$3,488 ($4,463 less $975 for three hours at a hearing). Plaintiff may submit a bill of costs in

accordance with Federal and local rules.

\\\\\

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CONCLUSION

In view of the foregoing findings, IT IS RECOMMENDED that plaintiff’s motion

for entry of default judgment be GRANTED. Judgment should be rendered in the amount of 

$10,000 in damages and $3,488 in attorneys’ fees against defendant Turnbough. 

In addition, IT IS ORDERED that the Clerk of the Court shall serve these findings

and recommendations on the defaulting defendant at the address indicated on plaintiff’s proof of

service of the instant motion. 

These findings and recommendations are submitted to the Honorable Garland E.

Burrell Jr., United States District Judge, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). 

Within ten days after being served with these findings and recommendations, any party may file

written objections with the court and serve a copy on all parties. Such a document should be

captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

objections shall be served and filed within ten days after service of the objections. The parties

are advised that failure to file objections within the specified time may waive the right to appeal

the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 10/28/05

/s/ Gregory G. Hollows

___________________________________

 GREGORY G. HOLLOWS

UNITED STATES MAGISTRATE JUDGE

GGH:076

direct2409.fr.wpd

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