Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Directv, Inc. v. Lankester

United States District Court, D. Maryland, Southern Division

December 23, 2019

DIRECTV, INC., Plaintiff,
v.
MARK LANKESTER, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          GEORGE J. HAZEL UNITED STATES DISTRICT JUDGE.

         Pending before the Court is Defendant Richard O'Palko, Jr.'s Motion to Vacate Judgment. ECF No. 95. No. hearing is necessary. See Loc. R. 105.6 (D. Md. 2016). For the following reasons, Defendant's Motion to Vacate Judgment is denied.

         I. BACKGROUND

         On October 31, 2003, Plaintiff DIRECTV, Inc. (“DIRECTV”) filed a Complaint against multiple individuals, including Defendant O'Palko, alleging that they had purchased pirate-access devices to intercept and decrypt DIRECTV's protected satellite communications without authorization or payment, in violation of the Cable Communications Policy Act of 1984, 47 U.S.C. § 605, and the Electronic Communications Policy Act of 1986, 18 U.S.C. § 2511. ECF No. 1. An Affidavit of Service was filed on February 4, 2004 that showed Defendant O'Palko was personally served on January 25, 2004. ECF No. 27. He did not answer or otherwise respond to the Complaint, so the Clerk entered default against him on November 18, 2004. See DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 408 (D. Md.).[1] On August 30, 2005, the Court entered default judgment against Defendant O'Palko in the amount of $71, 951.37. ECF Nos. 89, 90; see also DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF Nos. 977, 978 (D. Md.). Defendant O'Palko was also permanently enjoined from receiving, possessing, or using any pirate-access device. Id.

         On November 13, 2009, DIRECTV moved for a Writ of Garnishment against Defendant's property held by PNC Bank. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1126 (D. Md.). The clerk issued the Writ on March 18, 2010. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1128 (D. Md.). On April 23, 2010, PNC Bank answered the Writ and stated that it held $9, 091.05 of Defendant O'Palko's property. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1130 (D. Md.). On April 28, 2010, Defendant O'Palko, through an attorney, filed a Motion for Release of Property from Garnishment or to Exempt Funds from Execution (“Motion for Release”). DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1131 (D. Md.). On July 26, 2010, the Court granted Defendant's Motion for Release as to $6000.00 in the account, but denied it as to the remaining $3, 091.05. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF Nos. 1133, 1134 (D. Md.). On August 27, 2010, the Court ordered PNC Bank to pay the $3, 091.05 sum to DIRECTV. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1136 (D. Md.). On December 6, 2011, DIRECTV recorded a judgment in the amount of $71, 951.37 against Defendant O'Palko in the Circuit Court of Calvert County, Maryland. DIRECTV, Inc. v. Lankester, No. AW-03-1631, ECF No. 1141 (D. Md.); see DIRECTV, Inc. v. O'Palko, No. 04-C-11-001386 (Cal. Cty. Cir. Ct.).

         Eight years later, on July 31, 2019, Defendant O'Palko, acting pro se, filed the pending Motion to Vacate Judgment. ECF No. 95. DIRECTV has not filed a response.[2]

         II. DISCUSSION

         Federal Rule of Civil Procedure 60(b) addresses the circumstances under which a court may vacate a judgment. In order to obtain such relief, a moving party must show that its motion is timely, that it has a meritorious defense to the action, that the opposing party would not be unfairly prejudiced by having the judgment set aside, and that one or more of the six grounds set forth in Rule 60(b) is satisfied. Park Corp v. Lexington Ins. Co., 812 F.2d 894, 896 (4th Cir. 1986). Rule 60(b) provides that the court may vacate a final judgment for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged; it is based on an earlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable; or (6) any other reason that justifies relief. A motion based on the first three grounds in Rule 60(b) must be made no more than a year after the entry of the judgment. Fed.R.Civ.P. 60(c)(1). A motion based on the final three reasons must be made within a reasonable time of the judgment. Id.

         Defendant O'Palko does not specifically identify any Rule 60(b) grounds for vacating the judgment against him. Instead, he contends that the judgment should be vacated because he was not personally served with notice of the action, DIRECTV has no evidence of the violations alleged in the Complaint, his attorney abandoned him, DIRECTV has refused to settle, and that any attempt by DIRECTV to collect the outstanding judgment against him is time-barred under Maryland law.

         The first five grounds enumerated in Rule 60(b) do not appear to apply to Defendant O'Palko's Motion. Any motion under Rule 60(b)(1)(2), or (3) would be untimely because this Motion was filed on July 31, 2019, more than a year after entry of default judgment on August 30, 2005. Defendant O'Palko also does not make any argument that the judgment is void under Rule 60(b)(4) or that is has been satisfied or otherwise discharged under Rule 60(b)(5). Thus, the only possible ground for vacating the default judgment against Defendant O'Palko would be for “any other reason that justifies relief” under Rule 60(b)(6).

         Although the language of Rule 60(b)(6) is facially broad, “its context requires that it may be invoked in only extraordinary circumstances.” Tyler v. AMTRAK, No. PJM-15-1666, 2016 WL 6170509, at *1 (D. Md. Oct. 24, 2016) (quoting Aikens v. Ingram, 652 F.3d 496, 500 (4th Cir. 2011)). The Fourth Circuit has noted that a narrow construction of Rule 60(b)(6) is “essential if the finality of judgments is to be preserved.” Aikens, 652 F.3d at 501 (quoting Liljeberg v. Health Servs. Acquisition Corp, 486 U.S. 847, 873 (1988) (Rehnquist, C.J., dissenting)). Additionally, a “Rule 60(b) motion does not substitute for a timely appeal.” Miskell v. Rohrer, No. WDQ-12-0742, 2013 WL 6622923, at *1 (D. Md. Dec. 13, 2013). Where the moving party could have addressed the issue on appeal, he has not demonstrated “extraordinary circumstances.” Id.

         As a preliminary matter, Defendant's motion under Rule 60(b)(6) is untimely because he did not file it within a reasonable amount of time of the entry of judgment against him. According to the Motion, Defendant O'Palko knew about this case even before it was filed, as far back as July 16, 2003, ECF No. 95 at 1, and he also actively litigated this case in 2010 with respect to garnishment of property held by PNC Bank, see DIRECTV, Inc. v. Lankester, No. AW-03-1631 (D. Md.). Waiting to file a motion to vacate fourteen years after entry of default judgment and nine years after actively participating in the case is unreasonable, especially considering Defendant O'Palko has not explained his delay in filing. See Trs. of Painters' Trust Fund of Washington, D.C., and Vicinity v. Clabbers, No. DKC-02-4063, 2010 WL 2732241, at *3 (D. Md. July 9, 2010) (stating that “it is incumbent upon the movant to ‘make a showing of timeliness'” (quoting McLawhorn v. John W. Daniel & Co., Inc., 924 F.2d 535, 538 (4th Cir. 1991))); Jardine, Gill & Duffus, Inc. v. M/V Cassiopeia, 523 F.Supp. 1076, 1085 (D. Md. 1981) (finding that a two-year delay in filing a motion to set aside a default judgment was unreasonable).

         Moreover, Defendant has failed to identify any “extraordinary circumstances” that justify relief from the judgment in this case. First, the record shows that Defendant O'Palko was personally served, and Defendant has provided no evidence to the contrary. Moreover, Defendant would have had the opportunity to contest the truth of the allegations in DIRECTV's Complaint had he appeared in this case before entry of judgment, and even now, he has failed to provide any evidence contradicting the well-pleaded allegations in the Complaint. Next, allegations of attorney error and the opposing party's failure to settle are not unique to this case such that they warrant extraordinary relief from final judgment. Finally, Defendant O'Palko's statute of limitations argument is not a defense to the original cause of action in this case, [3] so it is not a ground upon which the Court can vacate the judgment against him. Thus, Rule 60(b)(6) does not provide a basis for vacating the default judgment against Defendant O'Palko. Because Defendant has not satisfied any grounds set forth in Rule 60(b), his Motion to Vacate Judgment must be denied.

         III. ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.