Joe Hand Promotions, Inc. v. Coakley

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF KENTUCKY OWENSBORO DIVISION CIVIL ACTION NO: 4:19-CV-00027-JHM JOE HAND PROMOTIONS, INC. PLAINTIFF V. VIRGIL COAKLEY d/b/a KICKIN DEFENDANT BAR & GRILL MEMORANDUM OPINION AND ORDER This matter is before the Court on Plaintiff Joe Hand Promotions, Inc.’s Motion for Default Judgment. [DN 17]. Fully briefed, this matter is ripe for decision. For the following reasons, the Joe Hand Promotions’ Motion is DENIED. I. BACKGROUND Joe Hand Promotions alleges that it held the exclusive commercial distribution rights to the broadcast of a program. [DN 1 ¶ 1]. It asserts that, without its permission, Defendant Virgil Coakley, owner of Kickin Bar & Grill, exhibited the program to patrons. [Id. at ¶ 9]. As a result, Joe Hand Promotions sued Coakley for violating 47 U.S.C. § 605 and, in the alternative, 47 U.S.C. § 553 . [Id. at ¶ 3]. The Court eventually entered a warning order and appointed a warning order attorney for Coakley. [DN 11]. Coakley was constructively summoned. [DN 17 at 1]. When Coakley failed to appear, answer, or otherwise respond to the Complaint, the Clerk made an entry of default on the request of Joe Hand Promotions. [DN 16]. Joe Hand Promotions now asks that the Court for a default judgment. [DN 17, DN 21]. II. STANDARD OF REVIEW “A party who fails to ‘plead or otherwise defend’ may have an entry of default entered against him.” Duracore Pty. Ltd. v. Applied Concrete Tech., Inc., No. 5:13-CV-184-TBR, 2014 WL 5824770 , at * 1 (W.D. Ky. Nov. 10, 2014) (quoting FED. R. CIV. P. 55(a)). “After an entry of default has been entered, the plaintiff may move for default judgment.” Id. (quoting FED. R. CV. P. 55(b)). III. DISCUSSION Joe Hand Promotions argues that it is entitled to a default judgment because Coakley has failed to appear or otherwise file a responsive pleading. [DN 17 at 3]. However, under K.R.S. § 454.165, “[n]o personal judgment shall be rendered against a defendant constructively summoned, and who has not appeared in the action, except as provided in [Kentucky’s Long-Arm Statute].” See Morse v. Morse, No. 2018-CA-000548, 2019 WL 2246058 , at *2 (Ky. Ct. App. May 24, 2019); see also Dalton v. First Nat’l Bank of Grayson, 712 S.W.2d 954, 958 (Ky. Ct. App. 1986) (“Constructive service is sufficient merely to confer jurisdiction quasi in rem.”) (citation omitted). Joe Hand Promotions correctly acknowledges that Kentucky courts have not often addressed the issue of how K.R.S. § 454.165 bears on cases like the one at issue. [DN 21 ¶ 10]. Nevertheless, the Court does not find the case that Joe Hand Promotions relies on persuasive because Sache v. Beams, 337 S.W.2d 678 (Ky. 1960) does not address K.R.S. § 454.165. There are cases outside of Kentucky that find personal judgments against constructively served defendants violative of due process. See GE Capital Franchise Fin. Corp. v. CCI of W. Boca Raton, Inc., No. 08-80-252-CIV-MARRA, 2008 WL 11333493 , at *1 (S.D. Fla. Nov. 25, 2008) (“A personal judgment against [the defendant] based on constructive service would deprive [the defendant] of its property without due process of law. It is well established that a defendant must be personally served in order to obtain a money judgment against him or her”); see also Am. Auto. Ass’n, Inc. v. In Charge Marketing, Inc., No. 6:11-cv-668-Orl-18DAB, 2011 WL 13298878 , at *2 (M.D. Fla. Aug. 16, 2011). Thus, the Court holds that K.R.S. § 454.165 prohibits it from rendering a personal judgment against Coakley. IV. CONCLUSION For the reasons set forth above, IT IS HEREBY ORDERED that Joe Hand Promotions’ Motion for Default Judgment [DN 17] is DENIED. Prt Mialegf, Joseph H. McKinley Jr., Senior Judge United States District Court April 20, 2020 ce: counsel of record