United States District Court, D. New Mexico
JOE HAND PROMOTIONS, INC. Plaintiff,
MARTIN DOMINIC SERNA, EUGENE MARTINEZ, and HATCHA'S GRILL OF ANGEL FIRE, LLC d/b/a H2 UPTOWN Defendants.
CORRECTED ORDER DENYING PLAINTIFF'S MOTION FOR
ENTRY OF DEFAULT JUDGMENT
matter is before the Court on Plaintiff's Motion for
Entry of Default Judgment (Motion), ECF No. 12, and
Plaintiff's Response to Order to Show Cause and Request
for Telephonic Damages Hearing, ECF No. 14 (“Pl.'s
Resp.”). The Clerk of Court filed the Clerk's Entry
of Default Judgment on December 14, 2017 against all
Defendants for having failed to plead, appear, or otherwise
defend in this case. See ECF No. 11. However, after
reviewing the Proofs of Service, see ECF Nos. 5-7,
the Court was concerned that Defendants were not served
process in accordance with Federal Rule of Civil Procedure 4.
The Court therefore ordered Plaintiff to “submit a
written brief to the Court setting forth its analysis of why
service of process on” a person named Rachel Mayo
“constitute[d] proper service on an officer, a managing
or a general agent or to any other agent authorized by
appointment, by law or by this rule to receive service of
process in accordance with Fed.R.Civ.P. 4.” Order to
Show Cause 4, ECF No. 13 (“OSC”).
reviewed Plaintiff's Response to Order to Show Cause, the
Court is not satisfied that Rachel Mayo was an agent
authorized to receive service of process. Plaintiff's
Motion for Entry of Default Judgment is denied.
FACTUAL AND PROCEDURAL BACKGROUND
a Pennsylvania based corporation, distributes and licenses
sporting events to restaurants and similar establishments.
Pl.'s Compl., ¶ 8, ECF No. 1. It holds exclusive
commercial distribution rights to broadcast Ultimate
Fighting Championship® 203: Miocic v.
Overeem (“UFC 203”), which was telecasted
nationwide in September 2016 via a satellite signal to
satellite television companies. Id. ¶¶ 1,
9. Plaintiff alleges that Defendant Hatcha's Grill of
Angel Fire, LLC d/b/a H2 Uptown in Angel Fire, New Mexico -
of which Defendants Martinez and Serna are allegedly officers
or owners of - illegally broadcasted UFC 203 without
obtaining a license or paying a fee. Id. ¶ 11.
A year later, on September 9, 2017, Plaintiff filed this
lawsuit against Defendants under the Television Consumer
Protection and Competition Act, 47 U.S.C. § 553 and the
Communications Act, 47 U.S.C. § 605 for allegedly
pirating Plaintiff's exclusive rights to broadcast UFC
203 without authorization from Plaintiff.
October 24, 2017 Plaintiff filed three Proofs of Service, one
for each Defendant. See ECF Nos. 5-7. Each Proof of
Service indicated that the service processor left a copy of
the summons and amended complaint with a person named Rachel
Mayo, stating that she was “designated by law to accept
service of process” on behalf of each Defendant.
answer was filed, Plaintiff moved for entry of default on the
docket. See ECF No. 9. On December 14, 2017, the
Clerk of Court granted Plaintiff's request for entry of
default and filed its Entry of Default against Defendants for
their failure to plead, appear, or otherwise defend in this
case. See ECF No. 11. On April 18, 2018, Plaintiff
filed the current Motion for Entry of Default Judgment,
stating that Defendants were personally served. Plaintiff
requested a hearing on damages under Fed.R.Civ.P. 55(b)(2)
and sought alternative statutory damages of up to $110, 000
for violating the Communications Act or $60, 000 for
violating the Television Consumer Protection and Competition
Act, as well as attorneys' fees, costs of litigation, and
any other just and proper relief. See Prayer for
Relief, a-d, ECF. No. 1.
Order to Show Cause, the Court explained that it had taken
judicial notice that the New Mexico Office of the Secretary
of State, Corporations Division, listed the “Registered
Agent” for Defendant Hatcha's Grill of Angle Fire
LLC as “Martin Dominic Serna.” See OSC
at 3. The Office of the Secretary of State website stated
that Hatcha's Grill of Angle Fire LLC's organizers
were Eugene Martinez and Martin Serna. As the Court
explained, “[t]here is nothing in the record to suggest
that Rachel Mayo, the person on whom process was served, is
an officer, managing agent, general agent, or any other agent
authorized by law to receive service on behalf of
response to the Court's Order, Plaintiff explained that
Hatcha's Grill has two addresses - a street address and a
mailing address. Pl.'s Resp. at 2-3. On September 26,
2017, the process server, David Danemann, first attempted to
serve process at Hatcha's Grill's street address, but
found the business closed for a private event. Affidavit of
David Danemann, ¶ 3, ECF No. 14-2 (“Danemann
Aff.”). Danemann then went to Hatcha's Grill's
mailing address listed on the Secretary of State's
website. Id. A few businesses were in the area, but
Danemann could not locate Hatcha's Grill. Id.
Danemann asked a neighbor gallery owner where he could find
Defendant Martin Serna, and the gallery owner said Serna
could be found at Hatcha's Grill. Id.
returned to Angel Fire on October 14, 2017. Id.
¶ 4. He went to Hatcha's Grill, entered, and asked a
woman working there for Martin Serna and Eugene Martinez.
Id. She said they were not in, so Danemann asked to
speak to a manager. Id. She responded that she was
the manager and introduced herself as Rachel Mayo.
Id. Hearing this, Danemann handed Mayo the summons
and left. Id.
Rule of Civil Procedure 55 sets out a two-step process for a
party seeking a default judgment. A party seeking such a
judgment must first obtain the clerk's entry of default
against the opposing party. See Fed. R. Civ. P.
55(a). The clerk will issue an entry of default when the
moving party shows the Court through an affidavit or
otherwise that the opposing party “has failed to plead
or otherwise defend.” Id. Second, the party
must move the court to enter a default judgment. See
Fed. R. Civ. P. 55(b). Although the Federal Rules of Civil
Procedure authorize default judgments, the Court of Appeals
for the Tenth Circuit has described them as a
“disfavored” remedy. See Pelican Prod. Corp.
v. Marino, 893 F.2d 1143, 1146 (10th Cir. 1990). Before
entering a default judgment “the district court has an
affirmative duty to look into its jurisdiction both over the
subject matter and the parties.” Williams v. Life
Sav. and Loan, 802 F.2d 1200, 1202-03 (10th Cir. 1994).
the Court has an affirmative duty to examine its
jurisdiction, see id., the Court asks whether
service of process on Defendants was proper. Plaintiff bears
the burden of establishing the validity of service. See
Fed. Deposit Ins. Corp. v. Oaklawn Apts., 959 F.2d 170,
174 (10th Cir. 1992). Fed.R.Civ.P. 4 governs service of
process on a corporation, partnership, or association. Rule 4
provides, in pertinent part, that proper service upon such an
entity must be made “by delivering a copy of the
summons and of the complaint to an officer, a managing or
general agent, or any other agent authorized by appointment
or by law to receive service of process . . .”
Fed.R.Civ.P. 4(h)(1)(B). Alternatively, the rule provides
that service on a corporation or partnership may be performed
“in the manner prescribed by Rule 4(e)(1) for serving
an individual.” Fed.R.Civ.P. 4(h)(1)(A). Rule 4(e)(1),
in turn, provides that service may be made in conformity with
state law for serving summons.
applicable state law is Rule 1-004(G), N.M.R.A 2017, which
governs service upon a corporation or other ...