United States District Court, E.D. Pennsylvania
ROBERT F. KELLY, Sr., District Judge.
Presently before this Court are Defendants, Charles Weiner and 3348 Germantown Ave.'s, individually filed "Request for Relief from Default Judgment under Federal Rule of Civil Procedure 60 Seeking Opening of Judgment Permitting Defendants to File a Response to Plaintiffs Complaint, " and, Plaintiff, J & J Sports Productions Inc.'s, Response in Opposition to Defendants' Motions. For the following reasons, Defendants' Requests are denied.
Plaintiff J & J Sports Productions, Inc. ("Plaintiff") is a corporation organized under the laws of California with its principal place of business located in Campbell, California. Compl. ¶ 6. Defendant Charles Weiner ("Defendant Weiner") is an officer of Defendant 3348 Germantown Ave., Inc. ("Defendant 3348 Germantown"). Id . ¶ 7. Defendant 3348 Germantown owns and operates the commercial establishment doing business as Kokamo's, which is located at 3344-48 Germantown Avenue in Philadelphia, Pennsylvania. Id . Defendant Weiner is specifically identified on the Pennsylvania Liquor Control Board license issued to Kokamo's. Id . ¶ 8.
Plaintiff entered into a contract granting it the exclusive nationwide commercial distribution rights to the Manny Pacquiao v. Juan Manuel Marquez, WBO Welterweight Championship Fight Program (the "Fight"), telecasted nationwide on Saturday, November 12, 2011. Id . ¶ 16. Through additional contracts, Plaintiff entered into sub-licensing agreements with various commercial entities throughout North America, including entities within the State of Pennsylvania, by which it granted these entities limited sub-licensing rights to publicly exhibit the Fight within their respective bars, taverns, restaurants, and other establishments. Id . ¶ 17.
On November 6, 2013, Plaintiff filed suit in the Eastern District of Pennsylvania against Defendant Weiner and Defendant 3348 Germantown (collectively, "Defendants") alleging that Defendants, at the behest of Defendant Weiner and without Plaintiff's authorization, unlawfully intercepted and exhibited the Fight at Kokamo's on the night of November 12, 2011. Id . ¶¶ 7, 10, 11. Specifically, Plaintiff alleges these actions violated the Communications Act of 1934 (47 U.S.C. § 605, et seq .), the Cable & Television Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553, et seq .), and amount to unlawful conversion. Id . ¶¶ 22, 27, 31.
Issues Related to Service of Process
The parties disagree as to whether service of process was properly effectuated on Defendants. On January 17, 2014, Plaintiff filed two Declarations of Service, one for each Defendant, attesting to the fact that Plaintiff's process server, D'Wayne Henriksson (the "process server"), served both Defendants by substitute service on January 6, 2014. (See Dec. of Serv. (Docs. 3 & 4)). These Declarations were later rehashed in greater detail in an Affidavit signed by the process server and included with Plaintiff's Response in Opposition. (See Pl.'s Resp. in Opps'n, Ex. 2). In these documents, the process server avers the following facts under penalty of perjury. Id . The process server attempted to serve process on Defendants at Kokamo's on several dates prior to effectuating service. (See Decl. of Serv. (Docs. 3 & 4)). On January 6, 2014, at 1:28 p.m., the process server entered Kokamo's, and encountered two men, one of whom who identified himself as Lamont. (See Pl.'s Resp. in Opps'n, Ex. 2 ¶ 7). Lamont declared that he was the manager of Kokamo's, but refused to give his full name. (Id.) After Lamont stated that Defendant Weiner was not present in the establishment, the process server left the Complaint with Lamont and instructed Lamont to deliver the documents to Defendant Weiner. (Id. ¶ 9.) After twenty-five days passed with Defendants failing to appear, plead or otherwise defend, Plaintiff filed a Request for the Entry of Default Judgment against each Defendant with the Clerk of Court. (See Doc. 5). The Clerk entered the default on January 31, 2014.
On February 4, 2014, Defendant Weiner and Defendant 3348 Germantown Ave. filed individual Requests for Relief under Federal Rule of Civil Procedure 60(b). (See Docs. 6 & 7). In these Requests, Defendants deny receiving proper service of process. See Defs.' Request for Relief from Default J. ¶¶ 18, 20. In doing so, Defendants contest the process server's testimony by specifically denying that anyone named Lamont, or that any person matching the physical description of Lamont, works or had worked at Kokamo's. Id.
Plaintiff filed a Response in Opposition to Defendants' Requests on February 21, 2014. See Doc. 9. Three days later, Plaintiff filed Amended Declarations of Service in order to correct the typographical errors mentioned previously. See Docs. 10 & 11.
II. STANDARD OF LAW
Where a final judgment or order has been entered in a case, Rule 60(b) of the Federal Rules of Civil Procedure provides a limited avenue of ...