United States District Court, D. Delaware
D. Smith II, Michael J. Flynn, MORRIS, NICHOLS, ARSHT &
TUNNELL LLP, Wilmington, Delaware; Peter H. Kang, Ash Nagdev,
SIDLEY AUSTIN LLP, Palo Alto, California; Theodore W.
Chandler, SIDLEY AUSTIN LLP, Los Angles, California Counsel
F. CONNOLLY, UNITED STATES DISTRICT JUDGE
before me is Plaintiff beIN Media Group LLC's renewed
motion for entry of a default judgment pursuant to Federal
Rule of Civil Procedure 55(b)(2). D.I. 23.
Media is a global media company that owns the trademark to
"BEIN." D.I. 1 ¶ 2. It filed this in
rem action under the Anticybersquatting Consumer
Protection Act (ACPA), 15 U.S.C. § 1125(d), against
Defendant domain name <bein.qa>, alleging that the
registrant of <bein.qa>, non-party Honza Jan Zicha,
registered and threatened to use the domain name in bad faith
to extort money from beIN Media. See generally D.I.
1. <bein.qa> is registered with IP Mirror pte Ltd, a
registrar located in Wilmington, Delaware. Id., Ex.
Media filed an action in California that is identical to this
action in all respects except that it names as defendants
other "bein" domain names owned by Zicha that have
a registrar located in the Southern District of California.
See beIN Media Group LLC v. BEIN.AE, 2019 WL 1129153
(S.D. Cal. March 11, 2019). The California court entered a
default judgment in beIN Media's favor. Id. at
*7. beIN Media also filed a similar action in the District of
Massachusetts against "bein" domains owned by Zicha
that have a registrar located in Massachusetts. BeIN
Media Group LLC v. bein.com et al., 1:18-cv-11061 (D.
Mass. May 21, 2018). The Massachusetts court entered judgment
"in favor of [beIN Media] and against Mr. Zicha."
Id., D.I. 43 at 3.
31, 2018, beIN Media served Zicha with the Complaint and
Summons at Zicha's residence in the United Kingdom.
See D.I. 6. Shortly after service, beIN Media and
Zicha met in person and the parties agreed to a settlement.
See D.I. 10. As part of the settlement agreement,
Zicha agreed to transfer and assign the <bein.qa>
domain name to beIN Media. See D.I. 7. On July 12,
2018, the Court signed a stipulated order that transferred
the domain name <bein.qa> to beIN Media. D.I. 9 at 1.
The stipulation was signed by Zicha's counsel.
January 30, 2019, beIN Media filed a Request for Entry of
Default against Defendant and submitted a Bill of Costs. D.I.
10; D.I. 13; D.I. 19. On March 6, 2019, the Clerk entered
default against Defendant. D.I. 20. Defendant has yet to file
a pleading in this case.
Media argues that a default judgment is warranted because
Zicha has refused to cooperate in the entry of judgment. beIN
Media requests an award of $2, 000.00 in statutory damages,
costs in the amount of $628.62, and attorneys' fees in
the amount of $12, 571.60, for a total judgment of $15,
200.22. D.I. 16. beIN Media contends that Zicha agreed to
entry of final judgment as part of the settlement agreement
and that a judgment is necessary for it to recover damages
from Zicha. D.I. 17 at 3-4.
of default judgment is a two-step process, and a default
judgment under Rule 55(b)(2) of the Federal Rules of Civil
Procedure must be preceded by an entry of default under Rule
55(a). Pursuant to Rule 55(a), the clerk must enter default
"[w]hen a party against whom a judgment for affirmative
relief is sought has failed to plead or otherwise defend, and
that failure is shown by affidavit or otherwise."
Fed.R.Civ.P. 55(a). After entry of default, if the relief
sought against the defaulted party is not for a "sum
certain or a sum that can be made certain by
computation," the party seeking default judgment must
apply to the court for an entry of default judgment.
Fed.R.Civ.P. 55(b)(2). Default judgments are generally
disfavored in the Third Circuit, Budget Blinds, Inc. v.
White, 536 F.3d 244, 258 (3d Cir. 2008), but are left to
the discretion of the trial court, Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d. Cir. 1984). "Three
factors control whether a default judgment should be granted:
(1) prejudice to the plaintiff if default is denied, (2)
whether the defendant appears to have a litigable defense,
and (3) whether defendant's delay is due to culpable
conduct." Chamberlain v. Giampapa, 210 F.3d
154, 164 (3d Cir. 2000).
in their totality, the three relevant factors warrant entry
of a default judgment. Although it is unclear if
<bein.qa> has a litigable defense, it is clear that
beIN Media will continue to suffer prejudice absent entry of
a judgment, since otherwise it has no means of obtaining the
relief it seeks. It is also clear that <bein.qa>'s
delay is the result of Zicha's culpable conduct. The
emails and affidavits submitted by beIN Media and the
pleadings of the action filed by beIN Media in Massachusetts
establish that: Zicha lives in the United Kingdom; he
received service of the Complaint; he knows about the filings
that have occurred in this case as well as the California and
Massachusetts actions; he entered into a settlement agreement
with beIN Media; he later decided not to abide by the terms
of the settlement agreement; and he has decided not to file
an answer or other responsive pleading in this action.
Accordingly, the Court will enter a default judgment in favor
of beIN Media and against <bein.qa>.
reasons stated in beIN Media Group, 2019 WL 1129153,
*6-7, the Court does not believe that beIN Media is entitled