FINDINGS AND RECOMMENDATIONS
This matter came before the court on December 17, 2010, for hearing of plaintiff's amended second motion for default judgment (Doc. No. 53). Thomas D. Easton, Esq. appeared telephonically for plaintiff. No appearance was made by or on behalf of defaulted defendants Abdullah Hashem and Hashem(s) Films. Oral argument was heard, and the motion was taken under submission.
The undersigned has carefully considered plaintiff's arguments at the hearing, all written materials submitted with respect to the motion, and the entire file. For the reasons set forth below, the undersigned recommends that plaintiff's amended motion for default judgment be granted on plaintiff's claim for replevin.
Plaintiff commenced this action on April 1, 2008, by filing a complaint against five named defendants.*fn1 (Doc. No. 1) On June 4, 2008, defendant Joseph McGowen filed a declaration that was deemed to be a pro se answer to the complaint. (Doc. No. 7.) By stipulation and order filed May 14, 2009, plaintiff's claims against defendant McGowen were dismissed with prejudice. (Doc. No. 29.)
On July 15, 2009, the assigned district judge granted plaintiff's motion for alternative service on defendants Abdullah Hashem and Hashem(s) Films. (Doc. No. 32.) Despite being served with process in the manner approved by the court, these defendants failed to appear in the action. Pursuant to plaintiff's evidence of service and request for entry of default, the Clerk entered the defaults of defendants Abdullah Hashem and Hashem(s) Films on October 22, 2009. (Docs. No. 33, 34, 35.)
On October 27, 2009, plaintiff filed a motion for default judgment noticed for hearing before the undersigned pursuant to Local Rule 302(c)(19). (Doc. No. 38.) At the hearing on December 4, 2009, plaintiff's counsel appeared telephonically. No appearance was made by or on behalf of defendants Abdullah Hashem and Hashem(s) Films. The undersigned requested further briefing and continued the hearing to January 29, 2010. (Doc. Nos. 39, 40.) Despite being served with all papers filed in connection with plaintiff's motion for default judgment,*fn2 defendants Abdullah Hashem and Hashem(s) Films did not file any written opposition to the motion nor did they appear at either hearing on the motion.
In findings and recommendations filed September 1, 2010, the undersigned determined that plaintiff had demonstrated entitlement to a default judgment but had not established entitlement to the relief sought. (Doc. No. 47 at.) Accordingly, the undersigned recommended that the motion be denied without prejudice to the filing of a second motion. (Id.) Those findings and recommendations were adopted in full on September 28, 2010. (Doc. No. 50.) Plaintiff filed its second motion for default judgment on November 11, 2010. (Doc. No. 51.) An amended second motion for default judgment was filed on November 16, 2010. (Doc. No. 53.)
I. Plaintiff's Allegations
International Raelian Movement (IRM) is an organization based in Switzerland and organized under the laws of Switzerland. Through national affiliates, IRM promotes nonviolent philosophical teachings worldwide through its members, web sites, seminars, and publications. (Compl. (Doc. No. 1) ¶ 21.)
IRM and others were victims of an ongoing scheme of racketeering, fraud, blackmail, and extortion begun in 2005 and perpetrated by defendants Abdullah Hashem and Joseph McGowen through false front media companies Dragonslayer Productions, Hashem(s) Films, and Muslims United TV. The purpose of defendants' scheme was to obtain plaintiff's property through fraud, disparagement, threats, extortion, blackmail, damage, and conversion and to file false allegations of criminality against plaintiff for profit, based on an overall criminal structure. In furtherance of the scheme, defendants Hashem and McGowen posed as a legitimate media partnership and fraudulently obtained film footage of plaintiff's operations and likenesses of plaintiff's members. Defendants Hashem and McGowen then acted in accordance with a plan that included threats of violence, disparagement, allegations of criminality, and the impugning of plaintiff's reputation for the purposes of obtaining an anticipated payoff from plaintiff, defrauding others, and profiting at the expense of plaintiff's reputation. Plaintiff refused to pay defendants, who then converted the IRM film footage to their own use to further their illegal scheme. As a result of defendants' illegal scheme, plaintiff suffered damages in excess of $75,000 "including adverse publicity and damage to its reputation, legal fees, conversion of its property, [and] unauthorized use of its officers and members' likenesses." In addition to damages, plaintiff seeks replevin of the IRM film footage in defendants' possession. (Id. ¶¶ 1-4.)
Defendants conspired with each other for over three years to defraud plaintiff and obtain property belonging to plaintiff and others. Defendants' scheme of fraud and racketeering activities consisted of an intricate pattern of individual transactions and group transactions. Defendants' conduct violated criminal statutes, including mail and wire fraud, 18 U.S.C. §§ 1341 and 1343; interference with commerce by threats and violence, 18 U.S.C. § 1513; retaliation and threats against a witness, 18 U.S.C. §§ 873 and 875; blackmail and extortion, 18 U.S.C. § 1951; interstate and foreign travel in aid of racketeering enterprises, 18 U.S.C. § 1952; and money laundering, 18 U.S.C. § 1957. Defendants' activities caused pervasive and substantial harm to persons engaged in interstate and foreign commerce. (Id. ¶¶ 13-20.)
Defendants perpetrated two illegal schemes against IRM. The first scheme commenced in May 2005, when defendants Hashem and McGowen presented themselves as aspiring film makers and proposed that they make a fair and balanced documentary film about IRM and its members. Defendant McGowen signed a release indicating that the documentary film and all film footage obtained would remain the sole property of IRM and that any use or exhibition of the footage would be allowed only with the prior approval of IRM. Pursuant to that agreement, defendants were allowed to obtain many hours of film footage of IRM functions and IRM members. In August 2005, instead of submitting their film footage to IRM, defendants Hashem and McGowen demanded that, in exchange for their release of the film to IRM, IRM cease all activities in the United States and Egypt, and IRM's leader step down, make certain damaging admissions, issue a public apology, and return all IRM donations and funds to their sources. IRM refused defendants' demands and refused to pay any funds to defendants. Defendants then began a media campaign to promote a film about IRM, which they titled "Little Claudy" and which included false and damaging allegations of criminality, sexual misconduct, and financial fraud.
In late 2005, defendants Hashem and McGowen established Dragonslayer Productions as the next phase of their illegal scheme, which was to market the rights to the film footage in question. In 2005 to 2006, defendant Hashem traveled to California to seek funding for the anti-IRM project, which had turned into a for-profit movie. Defendants Hashem and McGowen sold shares in this film project, which included footage owned by IRM. In September 2005, defendants Hashem and McGowen created additional web sites and established the entity "Hashem(s) Films" to promote the film they called "Little Claudy," a derisive reference to the founder of IRM. Defendants' web sites contained defamatory materials and incited religious hatred and ridicule towards the IRM while seeking monetary support. Defendants also used many web sites and blogs as vehicles to exhibit out takes of "Little Claudy" and attacks on IRM, with unauthorized use of IRM film footage, likenesses of IRM members, and copyrighted IRM materials. In false statements to a news service and others, defendants claimed that IRM had tried to pay them to prevent release of the movie and accused IRM of crimes. In November 2006, defendants exhibited the finished film "Little Claudy" at a university in Indiana and received benefits from that university. IRM spent approximately $10,000 in legal fees to halt further distribution of the film by filing complaints with the university and other entities. Although plaintiff IRM was partially successful in blocking further release of the movie, defendants re-edited the film footage and used some of it in an ongoing Muslim fundamentalist serial called "The Djall," or Anti-Christ, where they identified IRM and its members as servants of the Anti-Christ. Throughout 2007 and up to the date of the filing of the complaint in this action, defendants continued to retaliate against IRM and its members by mass producing and distributing dozens of attack videos aimed at discrediting and disparaging IRM by accusing it of being a criminal and demonic organization. (Id. ¶¶ 32-44.)
Defendants' second scheme involved Ramon Watkins, a disabled African American radio and television minister residing in Nevada who goes by the name Prophet Yahweh and is a self-described expert in UFO's. In 2006, defendants Hashem and McGowen provided funds to Watkins to travel to Indiana for the purpose of making a film about Watkins' life. The film was intended to ridicule Watkins rather than to promote him and was part of defendants' criminal scheme to defraud Watkins and IRM through a project called "Prophets of the Gods." Defendants repeatedly told Watkins, and manufactured evidence to demonstrate, that IRM and its members were plotting against him, provoking Watkins to respond by making threats of violence, including death threats, against IRM by telephone and in film produced by defendants. Defendants publicized the threats made by Watkins and doctored film footage belonging to IRM to make it appear that IRM and Watkins were enemies and that they were threatening each other. Defendants attempted through several means to obtain investors for a film about this phony feud between Watkins and IRM. Such attempts included entering the film concept in a Fox TV reality program called "On the Lot," on which the concept appeared in the 2007 television season. When efforts to promote ...