Letter now Court case

**Gunsmoke2 - GS2** · 02-11-2013, 07:20 PM

Originally Posted by Hannibalector

do you think it's necessary to prove it in court ? if not why allege it ?

They have to explain to the court how this works so it will make sense. I do not think its necesarry to prove. It will be up to the defendant to prove why he/she purchased the codes from an illegal service.

GS2

**alex70olds** · 02-11-2013, 07:32 PM

Originally Posted by MarvinGardens

A court will not automatically grant a default judgment. If that were the situation everyone would be filing lawsuits in the hope that the defendant will not contest. Much better odds than playing the lottery.

The court still has to consider the evidence before it will grant the default. Motions for default judgment are regularly denied.

In the DA cases the court found that there was sufficient evidence before it (evidence that did not include ownership of sat equipment or server logs) to grant the judgment.

My point is that DN did not have to prove to the court that the defendant had the means to complete the copyright violation and that's why they will win with the current round of litigation.

Subscription to the IKS service is all the evidence they need.

I agree with most everything you posted except this. cite me one case were a default judgement was denied were proper service was made. Let me know the case and I will pull the PACER docs. I have been wrong before, always willing to learn.

**MarvinGardens** · 02-11-2013, 07:58 PM

Originally Posted by alex70olds

I agree with most everything you posted except this. cite me one case were a default judgement was denied were proper service was made. Let me know the case and I will pull the PACER docs. I have been wrong before, always willing to learn.

Like I said, if it were automatic it would be better than playing the lottery.

Do a google search. Here's one:

PHP Code:


http://www.arb.uscourts.gov/orders-rules-opinions/opinions/evans/Bryant.pdf

Here's another one:

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http://www.semmes.com/publications/cases/default-judgment-case.asp

And another:

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http://louisianarecord.com/news/234028-clerk-denies-plaintiffs-request-for-default-judgment-in-who-dat-case

**Just_angel** · 02-11-2013, 08:07 PM

no live links please.......

**ICEMAN** · 02-11-2013, 08:10 PM

ooppsss JA we both killed links at the same time..lol thanks

**alex70olds** · 02-11-2013, 08:23 PM

Originally Posted by MarvinGardens

Like I said, if it were automatic it would be better than playing the lottery.

Do a google search. Here's one:

PHP Code:


http://www.arb.uscourts.gov/orders-rules-opinions/opinions/evans/Bryant.pdf

In this case, the plaintiff was filing for a default Judgement, before an entry of default. In fact you are correct that the ruling was against an entry of default, but the defendat did reply, only 5 days late. In the echo cases they usually dont even file for default until aprox 90 days after proof of service.Again, I did not say it was automatic after 30 days, only it is automatic if no response, and defendant is not an infant nor in military service

Here's another one:

PHP Code:


http://www.semmes.com/publications/cases/default-judgment-case.asp

Again in this case, you are confusing motion for default vs motion for default judgement. Of course a judgement is not automatic, but defaulting on the case is. A motion for default judgement is always reviewed by the judge, and damages awarded by the judge.

And another:

PHP Code:


http://louisianarecord.com/news/234028-clerk-denies-plaintiffs-request-for-default-judgment-in-who-dat-case

Again Motion for default is not and completely seperate from default judgement. In fact, the assessed damages in BPG's case were lowered to 25K by the judge in the default judgement stage. That said, once a default judgement was entered in the DA cases of 10K, Dish used it as precident, and it was as close to automatic as you can get.

In the first case you cited, it shows the difference between default, and default judgement.

In addressing Plaintiffs’ Application and Motion, it is important to distinguish
between the entry of a “default” and the entry of a “default judgment.” Federal Rule of Civil
EOD
by L Schacherbauer
7/20/2010
1:10-ap-01068 Doc#: 14 Filed: 07/20/10 Entered: 07/20/10 16:26:14 Page 1 of 4
Procedure 55 concerning default applies to adversary proceedings. Fed. R. Bankr. P. 7055.
“The entry of the default by the Clerk under Federal Rule 55(a) is a docket entry.” Editor’s
Comment, Bankruptcy Rule 7055. If a party fails to plead or otherwise defend against a
complaint and a default has been entered, the next step is the entry of a default judgment.
See Johnson v. Dayton Elec. Mfg. Co., 140 F.3d 781, 783 (8th Cir. 1998) (citation and
internal quotes omitted) (“When a party has failed to plead or otherwise defend against a
pleading listed in [Federal Rule] 7(a), entry of default under [Federal Rule] 55(a) must
precede grant of a default judgment under [Federal Rule] 55(b).”)

Edit, lol I cited judgement. My bad, I meant default. Thanks, I should have known better, unfortunately, I am involved in civil cases. I was the one confused, not the first time, wont be the last lol.

**fifties** · 02-11-2013, 08:39 PM

I don't see anything displaying that DN has been challenged in court on their "allegation", demanding proof beyond the mere fact of a defendant purchasing codes. No evidence to support their usage, such as showing a log wherein they connected to the server, or proof of ownership of a dish and receiver.

A good defense lawyer might be able to beat them, given that their evidence is flimsy, but it would cost well more than the $3500 initial letter demand.

What they have managed to do, apparently, is develop a precedent for future cases, by virtue of simply alleging theft of their service, and using the fact of purchase of codes as their only evidence.

You have to wonder why they haven't started an onslaught of letter mailing then, since they seem to have their (legal) ducks in a row.

**1boxman** · 02-11-2013, 08:57 PM

I pointed out kinda of the same thing..and if ..well we are sure they have evidence ..from a reseller ..and sure .have probed for more . Why they haven't said as much in letters .

**Gunsmoke2 - GS2** · 02-11-2013, 09:19 PM

Originally Posted by fifties

I don't see anything displaying that DN has been challenged in court on their "allegation", demanding proof beyond the mere fact of a defendant purchasing codes. No evidence to support their usage, such as showing a log wherein they connected to the server, or proof of ownership of a dish and receiver.

A good defense lawyer might be able to beat them, given that their evidence is flimsy, but it would cost well more than the $3500 initial letter demand.

What they have managed to do, apparently, is develop a precedent for future cases, by virtue of simply alleging theft of their service, and using the fact of purchase of codes as their only evidence.

You have to wonder why they haven't started an onslaught of letter mailing then, since they seem to have their (legal) ducks in a row.

Plaintiffs simply don't show all their evidence in a complaint. It will come out with testimony, affidavits, papers, photos, emails, messages, etc later on . You can assume they have nothing else than the business records because that is all you saw in the complaint but that could or could not be a mistake. The fact they are filling lawsuits and they probably had meetings with lawyers I think there could be more. I never saw a complaint where the plaintiff stated the defendant own a satellite dish to prove ownership. It just would not happen in a complaint which really is a general summary of their complaint. It could or could not happen later on if the defendant was to say in their defense they never owned a sat dish system. The defendant can file a motion to dismiss a charge for lack of evidence and then plaintiffs answers with more. It can be a game like a chess match.

Not sure why everyone is saying there are no server logs. It seems to me this guy wufman co-operated. Does anyone know the extent of his co-operation.

GS2