This post examines an opinion recently issued by a U.S. District Court Judge who sits in the U.S. District Court for the Western District of Washington. Chavan v. Cohen, 2015 WL 4077323 (2015).
He begins the opinion by
outlining the course of the litigation to this point:
Plaintiffs Ariel and Sean Chavan filed
this action on October 9, 2013, asserting claims for violations of the Stored Communications Act, 18 U.S.C. § 2701, et seq., the Wiretap Act, 18 U.S.C. § 2511, et seq., and invasion of privacy by electronic communication under Revised Code of Washington 4.24.790. Plaintiffs'
operative Second Amended Complaint alleges incidents of online harassment,
identity theft, impersonation, and invasion of privacy taking place from
September 2006 through October 2013. . . .
After being granted expedited discovery
into Defendant's identity, Plaintiffs accomplished service and Defendant
defaulted. Plaintiffs now seek an award of, collectively, over $3,300,000 in
compensatory, statutory, and punitive damages as well as attorney's fees and
costs.
Chavan v. Cohen, supra.
As Wikipedia explains, a default judgment (or “defaulting”
or a “default"), is a
binding judgment in favor of
either party based on some failure to take action by the other party. Most
often, it is a judgment in favor of a plaintiff when
the defendant has not responded to a summons or has failed to
appear before a court of law. The failure to take action is the
default. . . .
Default can be compared to
a forfeit victory in sports. In a civil trial involving damages, a default judgment will enter the amount of
damages pleaded in the original complaint. If proof of
damages is required, the court may schedule another hearing on that
issue. A party can have a default judgment vacated, or set aside, by
filing a motion, after the judgment is entered, by showing of a proper excuse.
As the paragraphs above explain, once the plaintiffs in a
civil suit have had a copy of the Complaint (the document that is filed to
initiate a civil suit) served on the defendant, the defendant is now obligated
to respond by filing an “Answer” to the complaint. If the defendant fails to do so after the
appropriate period of time, the plaintiff(s) can see a default judgment by filing
a motion requesting the judge who has the case enter one. We will return to this issue below.
The judge then went on to explain how the litigation arose:
Ariel Chavan attests that in September
2006, [Cohen], then presenting by the name Jessica D. Wright, obtained access
to hisHotmail.com email account, which [Cohen] used to intercept messages daily
from September 2006 to October 31, 2012. . . .
[Ariel Chavan] similarly alleges that [Cohen] gained unauthorized access
to his university account, intercepting emails for ten days from September to
October 2006; to his MySpace account, intercepting communications for at least
120 days in the spring and summer of 2009; and to an additionalHotmail.com
account, intercepting emails for ten days in the spring of 2009. . . .
Chavan additionally alleges that [Cohen]
created a profile onFacebook.com in July 2010 impersonating his identity and
proceeded to use the account to intercept communications intended for Ariel
Chavan each day from July 2010 until April 2013. . . . . [Chavan] further
alleges that in September 2012, [Cohen] created an account on Gmail.com, which [he]
used to impersonate Ariel Chavan for the purpose of obtaining a credit report
and to regularly intercept messages intended for him from September 2012
through October 31, 2013. . . . Finally, Ariel Chavan alleges that on October
29, 2012, [Cohen] sent an email containing [Ariel’s] full Social Security
number to [Ariel Cohen’s] employer from hisHotmail.com address attempting to
reset the password for his employment accounts. . . .
Sean Chavan alleges that on September
23, 2013, [Cohen] obtained unauthorized access to four of his email accounts
and his Facebook.com account, changing the passwords and preventing [Sean] from
accessing the accounts or information stored therein. . . . Sean Chavan alleges
that [Cohen] attempted to obtain unauthorized access to his Facebook.com
account as recently as February 2014, despite receiving service of the First
Amended Complaint in this action. . . . Ariel Chavan similarly alleges that [Cohen]
attempted to impersonate him to one or more third parties as recently as March 2014. .
. .
[Cohen] has attempted to use the identities
and information obtained from Ariel Chavan to initiate romantic connections and
to obtain bank records and has posted numerous false statements on social
networking sites falsely attributed to [Ariel]. [Ariel and Sean Chavan] allege
that [Cohen’s] actions have caused them to sustain damages, loss, and injury,
including humiliation and injury to reputation.
Chavan v. Cohen, supra.
The judge then took up the Chavans’ motion for the entry of
a default judgment in this case, explaining that the decision to enter a
default judgment is
left to the sound discretion of the
trial court. Aldabe v. Aldabe, 616 F.2d 1089 (U.S. Court of Appeals for the 9th Circuit 1980). In exercising its discretion, the court
considers seven factors, referred to as the `Eitel factors’:
(1) the possibility of prejudice to the plaintiff if relief is denied, (2) the
substantive merits of the plaintiff's claims, (3) the sufficiency of the
complaint, (4) the sum of money at stake, (5) the possibility of a dispute
concerning material fact, (6) whether default was due to excusable neglect, and
(7) the policy favoring decisions on the merits. Eitel v. McCool, 782
F.2d 1470 (U.S. Court of Appeals for the 9th Circuit 1986).
At the default judgment stage,
well-pleaded factual allegations are taken as true, with the exception of those
related to damages. Geddes v. United Financial Group, 559 F.2d 557 (U.S.
Court of Appeals for the 9th Circuit 1977). These allegations are considered
admitted for the purpose of establishing the defendant's liability. Geddes
v. United Financial Group, supra; see also Federal Rule of Civil Procedure 8(b)(6) (providing that `[a]n
allegation -- other than one relating the amount of damages -- is admitted if a
responsive pleading is required and the allegation is not denied’).
Chavan v. Cohen, supra.
The judge went on to explain that a District Court Judge
may conduct a hearing in order to investigate
any matter appropriate to effectuate judgment, including determining the amount
of damages. Federal Rules of Civil Procedure 55(b)(2). The Court must
ultimately ensure that the amount of damages is reasonable and demonstrated by
the plaintiff's evidence. Getty Images (US), Inc. v. Virtual
Clinics, 2014 WL 358412 (U.S. District Court for the Western District
of Washington 2014). `A default judgment
may not differ in kind from, or exceed in amount, what is demanded in the
pleadings. Federal Rules of Civil Procedure 54(c).
Chavan v. Cohen, supra.
He then began his ruling on the motion for default. He found, first, that the
Eitel factors favor entry
of default judgment in this case. First, as to the sufficiency of Plaintiffs'
Complaint, Plaintiffs have pled allegations, which, considered admitted for the
purpose of default judgment, are sufficient to establish Defendant's liability
under the Stored Communications Act, Wiretap Act, and Revised Code of Washington 4.24.70.
Chavan v. Cohen, supra.
He analyzed the propriety of granting default as to each of
the Plaintiffs’ causes of action, beginning with the Stored Communications Act,
which,
[p]rohibits intentionally accessing
without authorization a facility through which an electronic communication
service is provided and thereby obtaining, altering, or preventing authorized
access to a wire or electronic communication while it is in electronic storage
in such system. 18 U.S. Code § 2701(a). Plaintiffs have shown that [Cohen[
intentionally accessed multiple such facilities in connection with three of
Ariel Chavan's email accounts and his fakedFacebook.com profile and MySpace
account, as well as Sean Chavan's four email accounts and hackedFacebook.com
account. A number of these incidents occurred within the two-year
statutory limitations period applicable to SCA claims. See 18 U.S.Code § 2707(f) (limiting civil actions to `two years after the date upon which
the claimant first discovered or had a reasonable opportunity to discover the
violation’).
Chavan v. Cohen, supra.
Next, he took up the Chavans’ claim under the Wiretap Act,
which
is created by 18 U.S. Code § 2520,
which provides that `[a]ny person whose wire, oral, or electronic communication
is intercepted, disclosed, or intentionally used in violation of this chapter
may in a civil action recover from the person or entity, other than the United
States, which engaged in that violation. . . .’ Plaintiffs have shown that (Cohen)
intentionally intercepted and endeavored to intercept thousands of such
communications via Ariel Chavan's and Sean Chavan's hacked email and social
media accounts.
[Cohen] also unlawfully disclosed and
used the contents of such communications with reason to know that they were
unlawfully intercepted. A number of these violations occurred within the
two-year limitations period for claims brought under the Wiretap Act, which
limits Plaintiffs' claims to violations that they first had a reasonable
opportunity to discover on or after October 9, 2011. 18 U.S. Code § 2520(e) (limiting civil actions to `two years after the date upon which
the claimant first has a reasonable opportunity to discover the violation’).
Chavan v. Cohen, supra.
Finally, the judge analyzed the Chavan’s claim under WashingtonRevised Code 4.24.790(2), which states that
when `(a) [t]he person impersonates
another actual person on a social networking web site or online bulletin board;
(b) [t]he impersonation was intentional and without the actual person's
consent; (c) [t]he person intended to deceive or mislead for the purpose of
harassing, threatening, intimidating, humiliating, or defrauding another; and
(d) [t]he impersonation proximately caused injury to the actual person . . .
inclu[ding] injury to reputation or humiliation, injury to professional or
financial standing, or physical harm’ under Washington Revised Code 4.24.790(2).
A claimant is authorized to seek actual damages, injunctive relief, and
declaratory relief under the act. under Washington Revised Code 4.24.790(3).
As the statute does not set forth a limitations period, the Court finds that
the three-year limitations period applicable for injury to property and fraud
applies. Washington Revised Code 4.16.080.
Plaintiffs have shown that Defendant
violated Washington Revised Code 4.24.790(2) by impersonating Ariel
Chavan without his consent on at least three social networking websites
(MySpace, Facebook.com, and Mylife.com). [Cohen] did so in order to deceive
others into believing [he] was Ariel Chavan for the purpose of defrauding
others. At least one of these impersonation events occurred within the
applicable limitations period. . . .
Chavan v. Cohen, supra.
The judge therefore held that, as
to the remaining Eitel factors,
the . . . Plaintiffs will be prejudiced absent entry of default judgment, both
because they will be unable to recover damages and because they will be unable
to enjoin [Cohen] from engaging in future acts, given [his] proven propensity
to continue violations even after being served with process.
The Court further finds that, once
damages for violations that fall outside the applicable limitations periods are
excluded, the sum of money at stake is not so substantial as to weigh against
entry of default judgment, particularly in light of the ongoing and willful
nature of [Cohen’s] conduct. The Court does not identify a possibility of
dispute over material facts that precludes entry of judgment given the
testimony heard by the Court during the evidentiary hearing and the documentary
evidence filed.
There is also no indication that [Cohen’s]
default is due to excusable neglect. On the contrary, [he] is aware of this
case and has deliberately chosen not to engage in the judicial process. .
. . Finally, the policy in favor of deciding cases on their merits is not
dispositive, particularly as `Defendant's failure to answer [Plaintiffs']
Complaint makes a decision on the merits impractical, if not impossible. Philip
Morris USA, Inc. v. Castworld Prods., Inc., 219 F.R.D. 494 (U.S.District Court for the Central District of California 2003).
Accordingly, the Court determines that
default judgment shall be entered and proceeds to determine the relief
warranted by the proven violations perpetrated by Defendant.
Chavan v. Cohen, supra.
The judge then conducted that determination, which is quite
involved; if I included it in this post, it would be very long. He does, though, summarize his conclusions in
this paragraph:
For the above-stated reasons, the Court
hereby ORDERS that Plaintiffs' Motion for Default Judgment and Permanent
Injunction . . . is GRANTED in part. The Court awards Plaintiff Ariel Chavan
$2,000.68 in compensatory damages, $21,000 in statutory damages, $32,265 in
attorney's fees, $497 in costs, and $115,003.40 in punitive damages, for a
total of $170,766.08.
The Court awards Plaintiff Sean Chavan
$15,000 in statutory damages and $75,000 in punitive damages for a total of
$90,000.
Plaintiffs are authorized to effect
service of this Order and any subsequent order, judgment, or pleading in this
suit, upon Defendant by sending a copy via U.S. Mail to Defendant's last known
address and via email to kornfreakgurl88@yahoo.com and jsnwright07@gmail.com.
Chavan v. Cohen, supra.
You can, if you are interested, read the full opinion here.http://legal-dictionary.thefreedictionary.com/amended+complaint
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