J & J Sports Productions Incorporated v. Becerra et al

Filing 18

ORDER that Plaintiff's Application for Default Judgment by the Court (Doc. 15 ) is granted. Judgment will be entered by separate order for a violation of 47 U.S.C. § 605 in the amount of $5,000, including costs and fees. See order for complete details. Signed by Judge Neil V. Wake on 12/3/15. (NKS)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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J & J Sports Productions, Inc.,

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Plaintiff,

No. CV-15-00803-PHX-NVW
ORDER

v.
Gaudencio Becerra and Rosa Evelia
Becerra, individually and d/b/a Ramiro’s
Mexican Food,
Defendants.

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Before the Court are Plaintiff’s Application for Default Judgment by the Court
(Doc. 15) and supporting documents (Docs. 15-1, 15-2, 15-3, and 17). For the reasons
that follow, the application will be granted, but damages will be limited.

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I.

BACKGROUND
Plaintiff acquired the “exclusive nationwide commercial distribution (closed-

circuit) rights” to a May 4, 2013 television program entitled “Floyd Mayweather, Jr. v.
Robert Guerrero WBC Welterweight Championship Fight Program” (“the Program).
(Doc. 1 at ¶ 18.) Plaintiff then sublicensed to various hotels, restaurants, and clubs the
right to show the Program to their customers. (Id. at ¶ 19.) According to Plaintiff,

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Defendants willfully intercepted the Program without Plaintiff’s consent and publicly
displayed it for the purpose of commercial advantage or financial gain. (Id. at ¶¶ 21-22.)

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Plaintiff filed suit on May 1, 2015, seeking relief for Defendants’ violations of the
Communications Act of 1934 (47 U.S.C. § 605 et seq.) and the Cable and Television
Consumer Protection and Competition Act of 1992 (47 U.S.C. § 553 et seq.). (Doc. 1 at
5-9.) Defendants were served with process in this action (see Docs. 9, 11, 12) but have
failed to appear. On September 14, 2015, the Clerk granted Plaintiff’s request to enter
default. (Doc. 14.) Plaintiff now moves for entry of default judgment pursuant to
Federal Rule of Civil Procedure 55(b)(2). Defendants have not filed a response.

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II.

APPLICATION FOR DEFAULT JUDGMENT
After a party’s default has been entered, the district court has discretion to grant

default judgment against that party. See Fed. R. Civ. P. 55(b)(2); Aldabe v. Aldabe, 616
F.2d 1089, 1092 (9th Cir. 1980). Factors the court may consider in deciding whether to
grant default judgment include (1) the possibility of prejudice to the plaintiff, (2) the
merits of plaintiff’s claim, (3) the sufficiency of the complaint, (4) the amount of money
at stake, (5) the possibility of a dispute concerning material facts, (6) whether the default
was due to excusable neglect, and (7) the strong policy favoring decisions on the merits.
Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Here, consideration of these
factors supports granting default judgment.
Plaintiff adequately states a claim under 47 U.S.C. § 605.1 The statute prohibits
the unauthorized interception and publication of “radio” communications. 47 U.S.C.
§ 605(a). This prohibition has been interpreted to apply to satellite television signals,
DirecTV, Inc. v. Webb, 545 F.3d 837, 844 (9th Cir. 2008), but not to wire
communications, J & J Sports Prods. Inc. v. Preciado, No. CV-14-02232-PHX-NVW,

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The complaint also sought relief under 47 U.S.C. § 553, but the present
application seeks default judgment only under section 605. (Doc. 15 at ¶ 5.)

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2015 WL 1062037, at *3 (D. Ariz. Mar. 11, 2015) (collecting federal appellate cases).
Accordingly, a complaint alleging a violation of 47 U.S.C. § 605(a) must definitively
specify that the intercepted communications were wireless in order to state a claim
sufficient to sustain a default judgment. Preciado, 2015 WL 1062037, at *2-3. Here,
Plaintiff has so specified. Plaintiff’s investigator watched Defendants show the Program
at their restaurant, noticed a satellite dish on the roof, and concluded the satellite dish was
used to access the Program wirelessly. (Doc. 15-3 at 2, 6-7.) Thus, Plaintiff states a
claim for relief under 47 U.S.C. § 605(a).

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In addition, Plaintiff may be prejudiced if default judgment is not entered, because
without default judgment Plaintiff will have little recourse for recovery. See J & J Sports
Prods., Inc. v. Molina, No. CV-15-0380-PHX-DGC, 2015 WL 4396476, at *1 (D. Ariz.
July 17, 2015). Similarly, Defendants’ absence from these proceedings despite service of
process suggests there is neither a dispute concerning material facts nor excusable
neglect. See id. at *2. Although the policy favoring decisions on the merits counsels
against default judgment, the mere existence of Rule 55(b) indicates this policy is not
dispositive. Id. Therefore, default judgment will be entered.

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III.

DAMAGES
Plaintiff seeks statutory damages and costs. Under the relevant provision, Plaintiff

“may” recover between $1,000 and $10,000 for each statutory violation, and between
$10,000 and $100,000 for each willful violation, “as the court considers just.” 47 U.S.C.
§ 605(e)(3)(C)(i)(II).

Plaintiff also “shall” recover full costs, including “reasonable

attorneys’ fees.” 47 U.S.C. § 605(e)(3)(B)(iii). In assessing damages, the Court balances
the need to deter piracy with the importance of not putting restaurants out of business.
See Kingvision Pay-Per-View Ltd. v. Lake Alice Bar, 168 F.3d 347, 350 (9th Cir. 1999).
Plaintiff seeks $26,600 in damages, excluding costs. This punishment exceeds the
crime. Plaintiff’s investigator counted only seven customers in the restaurant over the

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course of ten minutes.

(Doc. 15-3 at 2.)

The Program was playing on only one

television, and the investigator does not state whether anyone was watching.

(Id.)

Because of the restaurant’s small size, Plaintiff would have charged only a $2,200
sublicense fee to broadcast the Program in the first place. (Doc. 17 at ¶ 8.)
A better-suited damages award is $5,000, including costs and fees. To the extent
this award does not cover Plaintiff’s fees, those fees are not “reasonable” as contemplated
by the statute.

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IT IS THEREFORE ORDERED that Plaintiff’s Application for Default Judgment
by the Court (Doc. 15) is granted. Judgment will be entered by separate order for a
violation of 47 U.S.C. § 605 in the amount of $5,000, including costs and fees.
Dated this 3rd day of December, 2015.

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Neil V. Wake
United States District Judge

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