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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

DIRECTV, INC., a

California corporation,

Plaintiff,

v.

GRIGORY GROSMAN, et al.,

Defendants.

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No. C03-4176 BZ

REPORT AND RECOMMENDATION

RE: PLAINTIFF’S MOTION FOR

DEFAULT JUDGMENT AGAINST

DEFENDANT GROSMAN

Before me is plaintiff DIRECTV’s motion for default

judgment against defendant Grigory Grosman.1 A hearing was

held on February 2, 2005. Defendant did not file any

opposition to plaintiff’s motion, nor did he appear at the

hearing. As defendant has not consented to the

jurisdiction of a United States Magistrate Judge, this

matter will be reassigned to a district judge with the

following report and recommendation regarding default

judgment. 

On September 12, 2003, plaintiff filed this action

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against defendant and two other individuals alleging

violations of the Federal Communications Act of 1934, as

amended, 47 U.S.C. section 605, as well as the Electronic

Communications Privacy Act (“ECPA”), 18 U.S.C. sections

2510-2521. Plaintiff effected service of process against

defendant Grosman on November 28, 2003. After defendant

failed to respond to the complaint, and upon plaintiff’s

request, the Clerk of this court entered his default under

Rule 55(a) on January 27, 2004. On February 26, 2004,

Chief Judge Patel issued an Order of Limited Assignment of

all DIRECTV cases pending in the Northern District to Judge

Ware. See February 26, 2004 Order. Pursuant to Chief

Judge Patel’s Order, I issued a stay in all DIRECTV cases

assigned to me, which stay was lifted upon issuance of

Judge Ware’s Order Regarding Limited Assignment to

Determine Issues Regarding Joinder of Defendants and

Showing Needed to Establish a Prima Facie Case Under

Statutory Claims. In re DIRECTV, Inc., No. C-02-5912-JW,

2004 WL 2645971 (N.D. Cal. July 26, 2004). Defendant

failed to appear at the August 30, 2004 status conference. 

On November 10, 2004 plaintiff filed a motion for default

judgment against defendant. 

 Pursuant to Rule 55(b)(2), a court may enter default

judgment against a party when default has already been

entered by the Clerk. Fed. R. Civ. P. 55(b)(2). A court

may not enter a default judgment against an unrepresented

minor, an incompetent person, or a person in military

service. See Fed. R. Civ. P. 55(b)(2); 50 App. U.S.C. §

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521. The defendant satisfies this requirement. See

Declaration of Kimberly R. Colombo in Support of Plaintiff

DIRECTV, Inc.’s Motion for Default Judgment Against

Defendant Grigory Grosman ¶ 8.

By his default, defendant is deemed to have admitted

the well-pleaded averments of the complaint except for

those regarding the amount of damages. Fed. R. Civ. P.

8(d); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915,

917-18 (9th Cir. 1987). 

Plaintiff seeks statutory damages against defendant

for violation of 18 U.S.C. section 2511(1)(a). Section

2511(1)(a) of the ECPA provides 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 . .

. ” commits a federal offense. 18 U.S.C. § 2511. Section

2520(a) creates a private right of action for any person,

including a corporation, “whose wire, oral, or electronic

communication is intercepted.” 18 U.S.C. §§ 2510(6),

2520(a). Ninth Circuit case law holds that satellite

transmissions are electronic communications protected under

the ECPA. U.S. v. Lande, 968 F.2d 907, 909 -10 (9th Cir.

1992) (“A person who views satellite television programming

by use of a modified descrambler and a satellite dish

‘intentionally intercepts’ the satellite television signal,

which is an ‘electronic communication.’”).

Having reviewed plaintiff’s complaint, I find that the

allegations are sufficiently well-pled to establish

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defendant’s liability under section 2511(1)(a). Plaintiff

alleges that it is “the nation’s leading direct broadcast

satellite system, delivering over 225 channels of

television and other programming to more than 10 million

homes and businesses in the United States.” Compl., ¶ 1. 

Defendant allegedly “purchased and used illegally modified

DIRECTV Access Cards and other devices (‘Pirate Access

Devices’) that are designed to permit viewing of DIRECTV’s

television programming without authorization by or payment

to DIRECTV.” Compl., ¶ 10. In addition, plaintiff claims

that defendant “intentionally intercepted, endeavored to

intercept, or procured other persons to intercept or

endeavor to intercept, DIRECTV’s satellite transmission of

television programming, in violation of 18 U.S.C. §

2511(1)(a).” Compl., ¶ 25. Upon default these well-pled

allegations are deemed admitted.

The only issue that remains is the determination of

damages. Under section 2520(c)(2) the court may assess as

damages “the greater of (A) the sum of actual damages

suffered by the plaintiff . . . ; or (B) statutory damages

of whichever is the greater of $100 a day for each day of

violation or $10,000.” 18 U.S.C. § 2520(c)(2). The court

has discretion under section 2520 to award damages as

authorized by the statute or to award no damages at all. 

In re DIRECTV, Inc., 2004 WL 2645971 at *11; DIRECTV v.

Brown, 371 F.3d 814, 818 (11th Cir. 2004); Dorris v.

Absher, 179 F.3d 420, 429-30 (6th Cir. 1999) (citing

Reynolds v. Spears, 93 F.3d 428, 435 (8th Cir. 1996)). 

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2 In its motion for default judgment, plaintiff

suggests that it would be entitled to damages under section

2520 at $100 for each day of the violation, were it to have

requested such damages. Plaintiff estimates that defendant

used the device for 1,425 days, and on this basis, contends

that it would be entitled to $142,500.00. The duration of

violation alleged by plaintiff is based on the number of

days between the date that defendant purchased the devices

and the date that plaintiff developed a technique to

circumvent these devices. Plaintiff has not proven that

defendant intercepted the signal for 1,425 days. Therefore,

any award of damages on a per diem basis would be purely

speculative and not warranted under Federal Rule of Civil

Procedure 55.

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However, the court may not award an amount falling between

those two choices. In re DIRECTV, Inc., 2004 WL 2645971 at

*16; DIRECTV v. Hedger, No. 03-CV-733, 2004 WL 1396274 at

*2 (W.D. Mich. Apr. 20, 2004). 

 Having alleged that defendant purchased two Pirate

Access Devices, plaintiff seeks $20,000 in statutory

damages, $10,000 per device.2 I recommend awarding $10,000

in statutory damages for a single violation of section

2520. See Smoot v. United Transp. Union, 246 F.3d 633, 646

(6th Cir. 2001) (“The $10,000 liquidated damages amount

under § 2520(c)(2)(B) is designed to compensate a claimant

for all of the transgressor’s misdeeds under the Act,

unless that transgressor has violated the Act on more than

one hundred separate days, in which case compensation is

$100 for each such day.”); DIRECTV, Inc. v. Bloniarz, 336

F. Supp. 2d 723, 727 (W.D. Mich. 2004) (rejecting DIRECTV’s

“per-device” damage calculations). Section 2511

criminalizes intercepting or attempting to intercept any

wire, oral, or electronic communication. 18 U.S.C. §

2511(1)(a). Plaintiff has alleged only that defendant

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3 Another section of the ECPA criminalizes

possession of such devices, under which Judge Ware found no

private right of action exists. See 18 U.S.C. § 2512

(criminalizing possession of any device that is primarily

useful for “the purpose of the surreptitious interception of

wire, oral, or electronic communications”); In re DIRECTV,

Inc., 2004 WL 2645971 at *8. 

4 At the hearing I granted plaintiff leave to submit

authority stating that use of two access devices in tandem

constitutes two separate violations of the ECPA. Plaintiff

submitted a supplemental memorandum citing no such

authority. Further, the description in plaintiff’s

memorandum of the devices defendant possessed is consistent

with tandem use. I do not consider plaintiff’s supplemental

memorandum and declaration to the extent that they concern

additional issues which I did not grant leave to address. 

5 I do not consider plaintiff’s request for fees

under 47 U.S.C. section 605(e)(4) because plaintiff has not

alleged a violation of this provision against defendant in

its complaint. Counsel conceded at the hearing that an

award under section 605(e)(4) would be inappropriate in this

instance. See Fed. R. Civ. P. 54(c). 

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possessed two devices, not that he committed multiple

violations of the statute.3 See Compl., ¶¶ 17, 25. At the

hearing, plaintiff also conceded that defendant likely used

the two devices in tandem, rather than to intercept

multiple signals.4 Having reviewed plaintiff’s application

and supporting declarations, I recommend that plaintiff

recover statutory damages in the amount of $10,000 against

defendant Grosman and post-judgment interest thereon

pursuant to 28 U.S.C. section 1961. 

Plaintiff also seeks $2,180.42 in attorneys’ fees for

time expended on this case, under 47 U.S.C. section

605(e)(4) and 18 U.S.C. section 2520(b)(3).5 Attorneys’

fees and costs are recoverable under section 2520. 18

U.S.C. § 2520(b)(3). In support of its request, plaintiff

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submitted time records demonstrating that it reasonably

incurred $1,475.42 in attorneys’ fees for time expended in

this case prior to the hearing. Colombo Decl. ¶¶ 11-12,

Ex. E. The hourly rates charged by plaintiff’s counsel are

reasonable. See Colombo Decl. ¶ 9, Ex. E. I recommend

plaintiff receive attorneys’ fees for an an additional 1.5

hours of work preparing for and attending the hearing,

which lasted approximately fifteen minutes. Based on

counsel’s hourly rate, this amounts to an additional

$352.50 in attorneys’ fees. I therefore recommend that

plaintiff recover a total of $1,827.92 in attorneys’ fees.

For the foregoing reasons, I RECOMMEND that judgment

be entered in the amount of $11,827.92 against defendant

Grosman pursuant to 18 U.S.C. section 2520 and that postjudgment interest be awarded thereon, pursuant to 28 U.S.C.

section 1961. 

Dated: February 25, 2005

 /s/ Bernard Zimmerman

Bernard Zimmerman 

 United States Magistrate Judge

G:\BZALL\-BZCASES\DIRECTV\GROSMAN\defaultjudgment.wpd

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