Free Motion for Default Judgment - District Court of Delaware - Delaware

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

: : : Plaintiff, : : v. : : ARCHMERE ACADEMY, INC., a Delaware : corporation; CATHOLIC DIOCESE OF : WILMINGTON, INC., a Delaware corporation; : Rev. EDWARD SMITH, individually and in his : official capacity; and Rev. MICHAEL A. : SALTARELLI, in his official capacity, : : Defendants. :

Lt. Commander KENNETH J. WHITWELL, U.S. Navy,

C.A.No.05-796-SLR

PLAINTIFF'S RULE 55(b) MOTION FOR A DEFAULT JUDGMENT AGAINST DEFENDANT SMITH AND FOR A TRIAL ON DAMAGES Pursuant to Fed.R.Civ.P. 55(b)(2), plaintiff Moves this Court to enter a default judgment against defendant Edward Smith and to schedule a hearing or trial on damages at a time convenient to this Honorable Court. Facts On November 17, 2005, Plaintiff filed his Complaint. (D.I. 1). Service on defendant Smith was achieved on January 3, 2006. (See D.I. 5). Under Fed.R.Civ.P. 12(a)(1)(A), Smith's Answer was due on January 23, 2006, In mid-January, undersigned counsel was telephonically contacted by a Tom Burgstrum who indicated he was defendant Smith's personal attorney. Upon request, a 30 day extension of time to Answer the Complaint was orally granted to Smith. Accordingly, Smith's Answer was

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due on February 23, 2006. However, despite the granting of this extension and the passage of more than two months since service was executed, defendant Smith has failed to file either an Answer or any other responsive pleading.1 Discussion As the docket and factual recitation set forth above makes clear, defendant Smith has failed to file an Answer. Nor has he filed a Motion to dismiss or otherwise challenged matters such as service, venue or the sufficiency of the Complaint. Despite proper service, defendant Smith has failed to follow one of the most fundamental provisions of the Federal Rules of Civil Procedure - filing an answer to a complaint that was duly filed and served. And "[b]ecause defendant[ ] [Smith has] failed to answer, move or otherwise respond to the complaint, the entry of default judgment against [him] is appropriate." Compendia Songs v. On Top Communications, 2004 WL 2898070, at *2 (D.Del. Nov. 15, 2004). Defendant has failed to answer, move or otherwise respond to the Complaint. As a result, "the entry of default judgment against [him] is appropriate." Id.2 Since liability under all three Counts of the Complaint has thus been established, pursuant to Fed.R.Civ.P. 55(b)(2), plaintiff respectfully requests that a hearing or trial be scheduled at

Since mid-January, plaintiff has not been contacted by either Smith or any representative on his behalf. Contemporaneously with this Motion, plaintiff has filed a Rule 55(a) Motion to the Clerk to enter defendants' default. See Limehouse v. Delaware, 2004 WL 502162, *1 (D.Del. March 3, 2004) (requiring the filing of such a motion). The Court's default judgment will thus act upon this entry of default. 2
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which evidence can be presented to determine the amount of compensatory and punitive damages due to plaintiff. Plaintiff waives an opening brief in support of this Motion.

Respectfully Submitted, THE NEUBERGER FIRM, P.A. /s/ Stephen J. Neuberger THOMAS S. NEUBERGER, ESQ. (#243) STEPHEN J. NEUBERGER, ESQ. (#4440) Two East Seventh Street, Suite 302 Wilmington, Delaware 19801 (302) 655-0582 [email protected] [email protected] Dated: April 10, 2006 Attorneys for Plaintiff

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE : : : Plaintiff, : : v. : : ARCHMERE ACADEMY, INC., a Delaware : corporation; CATHOLIC DIOCESE OF : WILMINGTON, INC., a Delaware corporation; : Rev. EDWARD SMITH, individually and in his : official capacity; and Rev. MICHAEL A. : SALTARELLI, in his official capacity, : : Defendants. : Lt. Commander KENNETH J. WHITWELL, U.S. Navy,

C.A.No.05-796-SLR

ORDER This day of , 2006, it is hereby ORDERED

that a default judgment is entered against defendant Edward Smith in this action. A hearing or trial on damages shall be held on determine the amount of compensatory and punitive damages due to plaintiff. , to

THE HONORABLE SUE L. ROBINSON, U.S.D.J.

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Unreported Opinions

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Not Reported in F.Supp.2d Not Reported in F.Supp.2d, 2004 WL 2898070 (D.Del.), 2005 Copr.L.Dec. P 28,925 (Cite as: 2004 W L 289 8070 (D .Del.))

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M otions, Pleadings and Filings

United States District Court, D. Delaware. COM PENDIA SO NGS, Jonathan Chico Deb arge (d/b/a Joseph's Dream), Chuch Bo yz Publishing, Detabob Music, Ill Thoughtz, Music of Dreamworks, and Zomba Melodies, Inc., P laintiffs v. ON TO P COM MU NICATIONS, LLC, on Top Communications of Mississippi, LLC, on Top Communications of Virginia, LLC, on Top Comm unications of Louisiana, LLC, and Steve H egwoo d, Defendants. No. Civ.A.04-252-GMS. Nov. 15, 2004. Jack B. B lumenfeld, Mo rris, Nichols, Arsht & T unnell, W ilmington, DE , for Plaintiffs. MEMORANDUM SLEET, J. I. INTRODUCTION *1 On Ap ril 20, 2004, Comp endia Songs ("Compendia"), Jonathan Chico DeBarge, d/b/a Jo seph 's Dream ("Joseph's Dream"), Chuch Boyz Publishing ("Chuch"), DET AB OB Mu sic ("DE TAB OB "), Ill Thoughtz ("Ill T houghtz"), Music of Dream Works ("Dream Works"), and Zomba Melodies, Inc. ("Zomba") (collectively, "the plaintiffs") filed this action for willful copyright infringement of musical compositions against On Top Communications, LLC ("On Top"), On Top Communications of M ississipp i, LLC ("On Top-MS"), O n Top Comm unications of Virginia, LLC ("On Top-VA"), On Top Communications of Louisiana, LLC ("On

Top -LA"), and Steve Hegwood ("Hegwood") (collectively, "the defendants") to obtain monetary and injunctive relief in addition to reasonable attorneys' fees and costs. See 17 U.S.C. § 101 et seq. (the "Copyright Act"). Although all of the defendants were served with a summons and a copy of the co mplaint, each failed to answer, move, or otherwise respond to the pleading. For this reason, the clerk of the court declared the defendants in default on June 10, 2 004 . See Fed.R.Civ.P. 55(a). The plaintiff's subsequently moved for the entry o f a defau lt judgm ent against the defenda nts. See Fed.R.C iv.P. 55(b). On October 4, 2004, the court held a hearing in order to determine whether the relief which the plaintiffs were requesting was reasonable. After considering the arguments and evidence presented by the plaintiffs at this hearing, the court concludes that, in addition to injunctive relief, monetary damages in the amount of $25,000 per musical composition infringed by each of the defendants (for a total of $200,000 ), and reasonable attorneys' fees and costs in the amount of $13,660 and $290, respectively, are appropriate given the facts of this case. The court bases its decision on the following reasons. II. BACKGROUND According to the complaint, the plaintiffs are affiliates of SESAC, Inc. ("SESAC"), a performing rights society, as defined under 17 U.S.C. § 101. The plaintiffs are the publishers and copyright owners of the alleged ly infringed musica l compositions. [FN1] The plaintiff's have granted SESAC the right to license, protect, and enforc e pub lic perfo rmance rights in their copyrighted musical compositions. The defendants On Top, On Top-MS, On Top-VA, and On Top-LA (collectively, the "On Top defendants") are Delaware limited liability companies engaged in the business of owning and operating commercial radio stations under license from the Federal Communications Commission (the "FCC"). [FN2] Hegwoo d is the chief executive officer ("C.E.O.") of the On T op defendants, and has the ability to contro l the policies and practices of their radio stations, including the licensing and performance

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of music on the radio stations. Thus, Hegwood is respo nsible for any d ecision to license pub lic performance rights for musical compositions through SESAC, or the other two performing rights societies in the United S tates. FN1. The infringed musical compositions are "Be Encouraged," pub lished and owned by Compendia; "No Guarantee," published and owned by Joseph's Dream; and "(You Made Me Oo h Girl) Deep," published and owned by Chuch, DETABOB, Ill Thoughtz, Dream W orks, and Zomba. FN2. On Top-MS owns and operates WR JH-FM ("W RJH "), Rankin M ississippi; On Top-VA owns and operates WWHV -FM ("W W HV "), Norfolk, Virginia; On Top-LA owns and op erates KNOU-FM ("KN OU "), Jefferson, Louisiana. *2 The radio stations owned by the On To p defendants and controlled by Hegwood, W RJH, W W HV , and K N O U , publicly performed the copyrighted compositions "Be E ncouraged," "N o Guarantee," and "(You Made Me Ooh G irl) Deep" on multiple occasions without a license or other authorization: · On September 11, 2002 and November 19, 2002, WR JH publicly performed "Be Encouraged;" · On April 29, 2003, September 30, 2003, and February 12, 2004, WWHV publicly performed "Be Encouraged;" · On September 30, 2003, KNOU publicly performed "Be Encouraged;" · On June 27, 2003, WRJH, WWHV, and KNOU publicly performed "No Guarantee;" · Between January 7, 2003 and February 14, 2003, KNOU publicly performed "(You Made Me Ooh Girl) Deep;" and · On February 14, 2003, WW HV publicly performed "(You M ade M e Ooh G irl) Deep." During the course of mo nitoring radio station broad casts, SESAC detec ted the unauthorized public performance of the plaintiffs' copyrighted compositions. Beginning in or ab out July 2001, SESAC contacted the defenda nts, by telephone and in writing, urging them to

obtain a license authorizing the public performance of the plaintiffs' copyrighted compositions. SESAC received no response from the defendants and ultimately decid ed to initiate litigation on behalf of the plaintiffs. Prior to filing its complaint with the court, SE SA C's counsel wrote to the d efendants to attempt to get the defendants to enter into negotiations with it, com ply with the copyright law, and obtain a license to publicly perform the musical compositions. The defendants again ignored SE SA C's efforts to amica bly resolve the ma tter. On O ctob er 9, 20 03 , SESA C's counsel sent the defendants another letter, again attempting to avo id litigation, in which it enclosed a copy of the draft com plaint. T he de fendants did not respond to SESAC's letter. On March 25, 2004, Patrick Collins ("Collins"), the president and chief operating officer of SE SAC , perso nally wro te to the defendants in a final attempt to avoid litigation. Collins pointed out that it would be in the defendants' best interest, financially, to obtain a license. Collins also called Hegwood three times between April 5, 2004 and April 12, 200 4, in an a ttempt to arrive at a non-litigated business solution to the defendants' infringing co nduc t. Collins' calls were to no avail. Finally, after SESAC had received no respo nse at all from the defendants over the course of approximately two years and nine months of repeated attempts at negotiation, the plaintiffs filed a complaint on April 20, 2004. III. DISCUSSION Because the defendants have failed to answer, move, or otherwise respo nd to the complaint, the entry o f default judgment against them is ap propriate. Palmer v. Slaug hter, No . Civ. A. 99-8 99, 2000 W L 1010261, at *2 (D.Del. July 13, 2000). W hen a d efault jud gment is entered on the well pled allegations o f a com plaint, the defendant's liability is established. See Broa dcast Music, Inc. v. R Bar of M anh attan , Inc., 919 F.Supp. 656, 658 (S.D.N.Y.1996); Schwartz-Liebman Textiles v. Last Exit Corp., 815 F.Supp. 106, 107 (S.D.N.Y.1992). The court, however, is required to calculate the appro priate amo unt of dama ges. It cannot simply accept the plaintiff's representations on this subject as being true. See Broadcast Music, 919 F.Supp. at 658; Schwartz-Liebman, 815 F.Supp. at 107.

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*3 In the motion for default judgment, the plaintiffs request statutory d amages in the amount of $25,000 per musical composition infringed by each of the defenda nts, for a total award of statutory damages in the amount of $200,000. [FN3] The plaintiffs further seek a permanent injunction, and to recover reasonable attorneys' fees and costs. See 17 U.S.C. §§ 502(a), 505. FN3. The maximum amount of statutory damages for copyright infringement is $150,000 per infringer per work. See 17 U.S.C. § 504. On October 4, 2004, the cou rt held a hearing to determine whether the plaintiffs' requests were reasonable. Cf. Transatlantic Marine Claims Agency, Inc. v. Ace Shippin g Corp., 109 F.3d 105, 111 (2d Cir.1997) (noting that even though a hearing might not be required, the court "should take the necessary steps to establish damages with reasonable certainty"); accord James v. Frame, 6 F.3 d 30 7, 31 0 (5th Cir.1993). After co nsidering the plaintiffs argum ents and the evidence which was presented at the hearing, the court concludes that the following relief is warranted: (1) an injunction which prohibits the defendants from pub licly performing the plaintiffs' musical com positions; (2) statutory damages in the amount of $25,000 for each defendant per musical composition infringed; and (3) attorneys' fees and costs in the amount o f $13 ,660 and $ 290 , respectively. The following sections explain the bases for this ruling more thoro ughly. A. Injunctive Relief Given the allegations of the complaint, there can be no question that the defendants knowingly infringed on the plaintiffs intellectual property rights by publicly performing the plaintiffs' copyrighted musical compo sitions without a license or other authorization. Furthermore, the defendants app ear to have engaged in this conduct repeatedly, even after being contacted by SESAC to negotiate and obtain a license. Therefore, the plaintiffs are entitled to a permanent injunction under 17 U.S.C. § 502(a) to prevent the defendants from engaging in this type of cond uct in the future. See, e.g., Broa dcast Music, 919 F.Supp. at 659; JoB ete M usic

Co. v. Hampton, 864 F.Supp. 7, 9 (S.D.Miss.1994); Music City, 616 F.Supp. at 1002-03. B. Statutory Damages for Copyright Infringement Under 17 U.S.C. § 504©, the plaintiffs are entitled to "recover, instead of actual damages and profits, an award for infringements in the ac tion, with respect to any one work, for which any one infringer is liable individually ... in a sum not less than $750 o r more than $30,000 as the court considers just." 17 U .S.C. § 504(c)(1). However, if the "infringement was committed willfully, the court in its discretion may increase the award of statutory damages to a sum of not more than $150,000." Id. § 504(c)(2). As the D.C. Circuit has explained, "statutory d amages are to be calculated according to the number of works infringed, not the number of infringements." See Walt Disney Co. v. Powell, 897 F.2d 565, 569 (D.C.Cir.1990); accord Mason v. Montgomery D ata, Inc., 967 F.2d 135, 143-44 (5th Cir.1992) ("[I]f a plaintiff proves that one defendant com mitted five separate infringem ents of one copyrighted work, that plaintiff is entitled to only one award of statutory dam ages...."). In this case, the plaintiffs do not seek the maximum amount of statutory damages ($150,0 00) for the d efendants' allegedly willful infringement of each of the three copyrighted musical comp ositions. Instead, the plaintiffs seek $25,000 from each defendant for each musical composition infringed. *4 An award of statutory damages serves two p urposes. It compensates the plaintiff for the infringement of its copyrights while, at the same time, serving as a deterrent by punishing the defendant for its unlawful conduct. See Broadcast Music, 919 F.Supp. at 659; Schwartz-Liebman, 815 F.Supp. at 108; Music City, 616 F.Supp. at 1003. W hen determining the appropriate level of statutory d amages, the court must consider a number of factors, including the expenses saved and the profits earned by the defendant, the revenues lost by the plaintiff, and the defendants' state of mind. See Broadcast Music, 919 F.Supp. at 659-60; JoBete Music, 864 F.Supp. at 9; Almo Music, 798 F.Supp. at 394. No rmally, it is the blameworthiness of the defendant which weighs the heaviest in the co urt's analysis. See Almo Music, 798 F.Supp. at 394 (citing Milene Music,

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Inc. v. Gotauco, 551 F.Supp. 1288, 1296 (D.R.I.1982)). Here, the co urt has no doubt that the defendants have willfully infringed the plaintiffs' copyrights. Given the allegations of the co mpla int, which must be taken as true given the default, the defendants were repeated ly contacted by SE SAC and to ld to stop publicly performing the plaintiffs' musical compo sitions or to obtain a license to perform them legally. Regard less, the defendants never responded to SE SAC's letters, even those that includ ed co pies of draft co mpla ints, and continued to publicly perform the comp ositions. Thus, it is clear that the defendants were acting willfully and know ingly when they publicly performed the musical compositions on their radio stations without a license. It is also equally clear that the statutory damages award that the plaintiffs request is reasonable and not excessive. The plaintiffs could have asked the court to award the maximum amount statutory damages: $150,000 from each defendant for each infringed work (for a total statutory damages award of over one million dollars). However, the plaintiffs instead requested an award of $25,000 from each defendant per infringed work (for a total statutory damages award of $200,00 0). As severa l district co urts have observed, it is important to place infringers on notice that "it costs less to obey the copyright laws than to violate them." See Broa dcast Music, 919 F.Supp. at 660 (quoting Rodge rs v. Eig hty Four Lumber Co ., 623 F.Supp. 889, 892 (W.D.Pa.1985)); accord Almo Music, 798 F.Supp. at 394 (quoting Music City, 616 F.Supp. at 1003); see also JoB ete Music, 864 F.Supp. at 10 ("[I]n order to serve as a deterrent to copyright violators ... it is deemed necessary and reasonable to allow recovery in excess of the license rate...."). Thus, under the facts of this case, the court believes that a statutory da mages award of $25,000 from each defendant per work would appear to adequately punish the defendants for their actions and, thus, deter both them and others from violating the copyright laws in the future. C. Atto rneys' Fees and Costs *5 The court will also award the plaintiffs reasonable attorneys' fees and costs incurred during this action. See 17 U.S.C. § 505. This court has awarded reasonable

fees and costs in actions for copyright infringement, as an award o f reasonable fees and costs tends to be the rule rather than the exception in actions for copyright infringem ent. See Palm er, 2000 WL 1010261, at *6-7 (citations omitted). When determining an appropriate amount to award, the court should again take into account the twin considerations of compensation and deterrence. See Broadcast Music, 919 F.Supp. at 660-61. In particular, when there appears to be significant merit to a plaintiff's case, the co urt should focus its analysis on whether the defendant was acting intentionally, willfully, or in bad faith. See id. at 661. Here, the failure of these defendants to respond to SESAC, after repeated attempts to resolve the matter without filing a law suit, demonstrates the willfulness of their conduct. Furthermore, after being contacted by SESAC and informed of their infringing behavior, the defendants decided to forego licensing the public performance rights through SESAC or another performing rights organiza tion. T he defendants deliberately performed copyrighted musica l works publicly and without a license in an attempt to avoid the licensing fees. After the plaintiffs commenced their law suit, the defendants did not appear. Instead, they ignored the court and the legal proc ess, while continuing to publicly perfo rm the musical compo sitions without comp ensating the plaintiffs. Given these facts, an award o f reasonable attorneys' fees and costs is appropriate. However, the request for $18,660 in fees is somewhat excessive. [FN4] Admittedly, some of these expenses seem proper. For example, the attorneys spent nearly ten hours on research and drafting prior to filing the com plaint. FN4. Local counsel billed $1232.50 and lead counsel billed $17,427 .50 in fees for a total of $18,660. Nevertheless, there appear to be some excessive charges on the billing statements submitted to the co urt. For example, preparing the default judgment motion papers resulted in over $10,550 in fees, including $4,400 for legal research. In add ition, the attorneys billed $4,400 for preparing for and participating in the default hearing, which lasted approxim ately one half hour. Taking these factors into acco unt, the co urt will

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award the plaintiffs $13,660 in attorneys' fees. Lead counsel shall receive $12,42 7.50 of this allocation, and local counsel shall receive the $1,232.50 balance. Finally, the plaintiffs have requested $290 in costs, for the cost of the filing fee and cost of service. These co sts are not excessive. T he co urt will, therefore, award co sts in the full amount. V. CONCLUSION In ord er to adeq uately co mpe nsate the plaintiffs for the violation of their copyrights and to sufficiently punish the defendants for their misconduct, the court will afford the plaintiffs the injunctive relief which they request, in addition to awarding them statutory damages under the Copyright Act in the amount of $200,000. The court will also award the plaintiffs attorneys' fees and costs in the amount of $13,660 and $290, respe ctively. The court will issue an order to this effect in conjunction with this opinion. ORDER *6 For the reaso ns stated in the court's Mem orandum Opinion of this date, IT IS HEREBY ORDERED, AD JUDG ED , and D EC RE ED that: 1. On Top Communications, LLC ("On Top"), On Top Comm unications of Mississippi, LLC ("On Top -MS"), On Top Communications of Virginia, LLC ("On Top-VA"), On Top Communications of Louisiana, LLC ("On Top-LA"), and Steve Hegwood ("Hegwood") (collectively, "the defend ants") and their agents, servants, and emplo yees, and all other persons in active concert or participation with any of them, are PE R M ANE N T L Y E N J O IN E D fro m p ublicly performing the compositions "Be Encouraged," "No Guarantee," a nd "(Y ou M ade Me Ooh Girl) Deep," and from causing, permitting or aiding and abetting their pub lic pe rfo rm an ce by th e radio statio ns W R JH -FM , W W HV-FM, and K NO U-FM and w eb sites owned, ope rated or co ntrolled by the d efendants. 2. The defendants and their agents, servants, and emplo yees, and all persons in active concert or participation with any of them, are PERMANE NTLY ENJOINED from publicly performing any other copyrighted com positions pu blished by Co mpe ndia

Songs ("Compendia"), Jonathan Chico DeBarge, d/b/a Joseph's Dream ("Joseph's Dream"), Chuch Bo yz Publishing ("Chuch"), DE TA BO B M usic ("DE TAB OB "), Ill Thoughtz ("Ill Thoughtz"), M usic of Dream W orks ("Dream W orks"), and Zomba Melodies, Inc. ("Zomba") (collectively, "the plaintiffs") without a license from SESAC, Inc. or authorization from any other source. 3. Pu rsuant to 17 U.S.C. § 504, judgment in the amount of $75 ,000 be and is hereby ENTERED in favor of Com pendia against each of the de fendants. 4. Pursuant to 17 U .S.C. § 504, judgment in the amount of $75,000 be and is hereby ENTER ED in favor of Joseph's Dream against each of the defendants. 5. Pursuant to 17 U .S.C. § 504, judgment in the amount of $50,000 be and is hereby ENT ERE D in favor of Chuch, DET ABO B, Ill Thoughtz, D ream W orks, and Zomba against each of the defend ants. 6. Pursuant to 17 U.S.C. § 505, attorne ys' fees in the amount of $13,660 are AW ARD ED in favor of the plaintiffs and against the defendants. 7. Pursuant to 17 U.S.C. § 505, costs in the amount of $290 are TAXED against the defendants. Not Reported in F.Supp.2d, 2004 WL 2898070 (D.Del.), 2005 Copr.L.Dec. P 28,925 M otions, Pleadings and Filings (Back to top) · 1:04CV00252 (Docket) (Apr. 20, 2004) END OF DOCUMENT

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M otions, Pleadings and Filings Only the Westlaw citation is currently available.

United States District Court, D. Delaware. Keith D. LIM EH OU SE Plaintiff, v. STAT E of Delaware, Joseph R. Slights, in his official capacity as Superior Court Judge, Mike Murphy, in his official capacity as an employee of the Office of the Prothonotary of Newcastle County Courthouse, Delaware State Capital Police, William Jopp, in his official capacity as Chief of Delaware State Capital Police, and R aymond W . Cobb , Defendants. No. Civ. 03-844-SLR. March 3, 2004. Keith D. Limehouse, pro se, Wilmington, DE, for plaintiff. Stuart B. Drowos, Raymond W. Cobb, Raymond W. Cob b, LLC , Wilmington, DE , for defendants. MEMORANDUM ORDER ROBINSON, J. *1 At W ilmington, this 3rd day of March, 2004, having reviewed plaintiff's motion for partial default judgment (D.I.7), plaintiff's motion to strike (D.I.8), defendants' motions to dismiss (D.I.11, 15), and the memoranda submitted thereto; IT IS OR DE RED that defendants' motions to d ismiss (D.I.1 1, 15) shall be granted and plaintiff's motions (D.I.7, 8) denied for the reasons that follow:

1. Plaintiff filed the present action on August 29, 2003 alleging civil rights violations brought pursuant to 42 U.S.C. §§ 1983, 1985. (D.I.1) Plaintiff contends that defendant Cobb filed a false representation which resulted in the deprivation of plaintiff's equal protection of the law. (D.I.1, ¶¶ 21-27) The State of Delaware, Delaware Superior Court Judge Joseph R. Slights, Mike Murphy, an em ployee in the Office of the Prothonotary of New Castle County, and William Jobb, Chief of the Delaware State Capitol Police (the "State defendants"), are alleged to have conspired with Cobb in violation of § 1985 to interfere with plaintiff's civil rights. (D.I.1, ¶¶ 28-45) 2. On September 22, 2003, Co bb filed a m otion to extend the time to file an answer (D.I.5), which was granted by the court on September 24. Subsequently, on September 25, p laintiff filed a motion to strike Cob b's motion for an extension. As a consequence of the co urt's September 24 order, plaintiff's motion to strike is moot. (D.I.8) 3. On September 25, 2003, plaintiff filed a motion for partial default judgment against the State of Delaware pursuant to Fed.R.Civ.P. 55(b)(2). Prior to entry o f a default judgment a plaintiff must first file a motion for an entry of default. Fed.R.Civ.P. 55(a). See Meehan v. Snow, 652 F.2d 274, 276 (2d Cir.1981) ("The procedural steps contemplated by the Federal Rules of Civil Procedure following a defendant's failure to plead or defend as required by the Rules begin with the entry of a default by the clerk upon a plaintiff's request."). As plaintiff failed to obtain an entry of default prior to his motion for entry of a default judgment, plaintiff's motio n is denied. [FN1] (D.I.7) FN1. The court further notes the entry of d e faults and default judgments a re discouraged in the Third Circuit. See U.S. v. $55,518.05 in U.S. C urrency, 728 F.2d 192, 194-95 (3d Cir.1984). Fed.R.Civ.P. 55 is to be liberally construed so as to insure that cases are decide d on their merits. Id.

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4. On October 1, 2003, Cobb filed a motion to dismiss on the basis of insufficient services of proce ss, failure to state a claim upon which relief can be granted, lack of subject matter jurisdictio n, and the doctrine of federal abstention. [FN2] (D.I.11) On October 7, 2003, the State defendants filed a motion to dismiss for failure to state a claim upon which relief can be granted. (D .I 15) FN2. Cobb also mo ved the court to require a more definite statement and to strike portions of plaintiff's comp laint. (D.I.11) B ecause Cobb's motion to dism iss will be granted, the court will not address the alternate relief requested. 5. The present action arises from acts alleged to have occurred in the course of civil litigation currently pending in Delaware Superior Court before Judge Slights. See Limehouse v. Steak & Ale Restaurant Corp., C.A. No. 03C-03-299. Plaintiff contends that Cobb, who rep resents a defendant in the state litigation, know ingly placed a false representation, related to the sufficiency of service of process, in a document filed in the Office of the Prothonotary of the Superior Court of New Castle County "with the intent to dissuade ... [Judge] Slights, no t to pro perly enter de fault nihil dicit into final judgment where the defendant did not answer summons" within the time limit proscribed under Delaware Superior Court Rules. (D.I.1 , ¶ 21) Plaintiff contends that Co bb d id so fo r the purpose of "raising the amo unt of billable ho urs" and without authority. (Id., ¶ 23-24) Plaintiff further contends that Cob b's statements constitute a class E felony under Delaware law. (Id., ¶ 36) Plaintiff contends that Jud ge Sligh ts "allowed himself to be induced to conspire to deprive plaintiff of equal protection of the laws ... by accepting statements of Defendant Cobb." (Id., ¶ 33) Plaintiff contends that defendant Murphy "made several telephone calls to P laintiff in the attempt to deceive plaintiff to not appear for a motion hearing for sanctions against Defendant Cobb." (Id., ¶ 34) Plaintiff further contends that "M urphy mad e statem ents that are plainly false with regard to the application of procedures of the New Castle County Civil Case Management Plan." (Id., ¶ 35) Plaintiff asse rts that these statements constitute a class E felony under Delaware law. (Id., ¶ 36) Plaintiff

contends that "[d]efendants Kashner, Walker, and Donohue, in the line of duty as Delaware State Capitol Police Officers, refused to arrest Defendant Cobb where presented by Plaintiff with a first-hand account of the criminal act ... on June 27, 2003." [FN3] (Id., ¶ 38) Plaintiff was subsequently ejected from the New Castle County Courthouse premises. Further, plaintiff contends that "D efenda nt Slights denial of Plaintiff's motion in underlying litigation ... deprived Plaintiff of relief as ordered by rule of court ... and are breach of plaintiff's fundamental rights as guaranteed by United States Constitutio n's Fourteenth Amendment." Plaintiff seeks damages in the amount of $1,762,690 . The State defendants are being sue d in their official capacities. (D.I. 1; D.I 24, ¶ 5) FN3. The court notes, however, that "Kashner, W alker, and Donohue" are not joined as defendants in the present action. *2 6. In analyzing a motio n to dism iss pursuant to R ule 12(b)(6), the court must accept as true all material allegations of the co mplaint and it must construe the complaint in favor of the plaintiff. See Trum p Ho tels & Casino R esorts, In c. v. M irage Reso rts, Inc., 140 F.3d 478, 483 (3d Cir.1998). "A complaint should be dismissed only if, after ac cepting as true all of the facts alleged in the complaint, and drawing all reasonable inferences in the plaintiff's favor, no relief could be granted under any set of facts consistent with the allegations of the complaint." Id. Claims may b e dismissed pursuant to a Rule 12(b)(6) motion only if the plaintiff canno t demonstrate any set o f facts that would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S .Ct. 99 , 2 L.E d.2d 80 (1957). Where the plaintiff is a pro se litigant, the court has an obligation to construe the comp laint libera lly. See Haines v. Kerner, 404 U.S. 519, 520-521, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir.1997); Urrutia v. Harrisburg County Police Dep't., 91 F.3d 451, 456 (3d Cir.1996). The moving party has the burd en of persuasion. See Kehr Packages, Inc. v. Fide lcor, In c., 926 F.2d 1406, 1409 (3d Cir.1991). 7. Accepting all of plaintiff's factual allegations as true and construing the complaint in the light most favora ble

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to plaintiff, the co mpla int fails to state a cause of action against defendant Cob b. Plaintiff brings this claim pursuant to 42 U.S.C. § 1983, alleging a deprivation of civil rights. It is, howe ver, well settled law that § 1983 creates no remed y against a person not acting under color of law. See Polk County v. Dodson, 454 U.S. 312, 318, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981) ("[A] lawyer repre senting a client is not, by virtue of being an officer of the court, a state actor 'under color of state law' within the meaning § 1983."). In the present case, there is no factual or legal basis to conclude that Cobb, serving as counsel for a defendant in private civil litigation, is acting under color of state law. Consequently, plaintiff's claim against defendant Cobb must fail. 8. W ith respect to the State defendants, plaintiff seeks money dam ages against the State, the State Capitol Police, and certain State officials in their official capacities. W here a plaintiff sues a State or State agency for money damages, Eleventh Amendm ent immunity will bar the action. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). Similarly, where a suit nam es a state official in his official capa city the state is the real party in interest and, as a consequence, the Eleventh Amendm ent imm unity applies. See Edelman v. Jordan, 415 U.S. 651, 662-63, 94 S.Ct. 1347, 39 L.Ed.2d 662 (1974). W hile Congress, pursuant to its remedial powers under Section 5 of the Fourteenth Amendment, may ab rogate a state's Eleventh Amendment immunity, it must clearly state its intent to do so . See Sem inole Tribe of Florida v. Florida, 517 U.S. 44, 55, 116 S.Ct. 1114, 134 L.Ed.2d 252 (1996). Section 1983 does not co ntain such an express congressional intent to abrogate the Eleventh Amendment. See Edelman, 415 U.S. at 677. As the State of Delaware has not waived its sovereign immu nity, plaintiff's claim for money d amages against the State of Delaware, the State Capitol Police, and the named State officers is barred. Not Rep orted in F.Sup p.2d , 200 4 W L 50 216 2 (D .Del.) M otions, Pleadings and Filings (Back to top) · 1:03CV00844 (Docket) (Aug. 29, 2003)

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CERTIFICATE OF SERVICE I, Stephen J. Neuberger, being a member of the bar of this Court do hereby certify that on April 10, 2006, I electronically filed this Pleading with the Clerk of the Court using CM/ECF which will send notification of such filing to the following:

Anthony G. Flynn, Esq. Young Conaway Stargatt & Taylor, LLP 1000 West Street, 17th Floor P.O. Box 391 Wilmington, DE 19899-0391

Mark L. Reardon, Esq. Ezlufon Austin Reardon Tarlov & Mondell, P.A. 300 Delaware Avenue, Suite 1700 P.O. Box 1630 Wilmington, DE 19899-1630

/s/ Stephen J. Neuberger STEPHEN J. NEUBERGER, ESQ.

Whitw ell/ P leadings / Motion for a De f ault Judgme nt.FI NAL