J & J Sports Productions Incorporated v. Meza-Jimenez et al

Filing 21

ORDER AND DEFAULT JUDGMENT - Plaintiff's motion for default judgment (Doc. 20 ) is granted. Default judgment is entered in favor of Plaintiff and against Defendant Francisco Meza-Jimenez, individually and d/b/a Taqueria Cajeme, in the amount of $30,000, jointly and severally with the damages awarded previously against Defendants Nydia P. Meza and Taqueira Cajeme, LLC (see Doc. 19 ). Signed by Judge David G Campbell on 1/8/18. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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No. CV-17-1320-PHX-DGC
J & J Sports Productions, Inc.,
ORDER AND DEFAULT JUDGMENT

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Plaintiff,

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v.

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Francisco J. Meza Jimenez, Nydia P.
Meza, and Taqueria Cajeme, LLC, d/b/a
Taqueria Cajeme,

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Defendants.

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Plaintiff J & J Sports Productions has filed a motion for default judgment against

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Defendant Francisco J. Meza-Jimenez, individually and doing business as Taqueria

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Cajeme, pursuant to Federal Rule of Civil Procedure 55(b). Doc. 20. No response has

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been filed. For reasons stated below, default judgment is appropriate.

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I.

Background.

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Plaintiff obtains licenses to distribute pay-per-view programming to various

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commercial establishments, including bars and restaurants. Plaintiff contracted for the

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right to broadcast a boxing match between Saul “Canelo” Alvarez and Amir Khan and

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related undercard bouts. The program aired May 7, 2016.

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Plaintiff claims that Defendants intercepted the program and displayed it to the

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public at Taqueria Cajeme, a Mexican restaurant and bar operated by Defendants and

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located at 356 East University Drive in Mesa, Arizona. Plaintiff filed suit seeking

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statutory damages for Defendants’ alleged violations of the Communications Act of 1934

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and the Cable and Television Consumer Protection and Competition Act of 1992,

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47 U.S.C. §§ 553 and 605 et seq. Doc. 1.

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Plaintiff served process on Defendant Meza-Jimenez on August 23, 2017.

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Doc. 15. The Clerk entered his default three weeks later, after Defendant failed to answer

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or otherwise respond to the complaint. Doc. 18. Plaintiff then filed the present motion

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for default judgment Defendant Meza-Jimenez. Doc. 20.1

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II.

Default Judgment.

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After default is entered by the clerk, the district court may enter default judgment

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pursuant to Rule 55(b). The court’s “decision whether to enter a default judgment is a

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discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). Although the

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court should consider and weigh relevant factors as part of the decision-making process,

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it “is not required to make detailed findings of fact.” Fair Housing of Marin v. Combs,

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285 F.3d 899, 906 (9th Cir. 2002).

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The following factors may be considered in deciding whether default judgment is

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appropriate: (1) the possibility of prejudice to the plaintiff, (2) the merits of the claims,

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(3) the sufficiency of the complaint, (4) the amount of money at stake, (5) the possibility

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of factual disputes, (6) whether default is due to excusable neglect, and (7) the policy

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favoring decisions on the merits. See Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir.

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1986). In considering the merits and sufficiency of the complaint, the court accepts as

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true the complaint’s well-pled factual allegations, but the plaintiff must establish all

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damages sought in the complaint. See Geddes v. United Fin. Group, 559 F.2d 557, 560

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(9th Cir. 1977). Having reviewed the complaint and default judgment motion, the Court

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finds that the Eitel factors favor default judgment and statutory damages in the amount of

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$30,000.00 are warranted.

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The Court entered default judgment against Defendants Nydia P. Meza and
Taqueria Cajeme, LLC, on October 16, 2017. Doc. 19.
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A.

Possible Prejudice to Plaintiff.

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The first Eitel factor weighs in favor of default judgment. Defendant failed to

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respond to the complaint or otherwise appear in this action despite being served with the

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complaint, the application for default, and the motion for default judgment. If Plaintiff’s

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motion is not granted, Plaintiff “will likely be without other recourse for recovery.”

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PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). The

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prejudice to Plaintiff in this regard supports the entry of default judgment.

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B.

Merits of the Claims and Sufficiency of the Complaint.

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The second and third Eitel factors favor default judgment where, as in this case,

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the complaint sufficiently states a plausible claim for relief under the Rule 8 pleading

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standards. See id. at 1175; Danning v. Lavine, 572 F.2d 1386, 1388-89 (9th Cir. 1978).

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Plaintiff seeks relief under 47 U.S.C. § 605. To be held liable for a violation this statute,

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“a defendant must be shown to have (1) intercepted or aided the interception of, and

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(2) divulged or published, or aided the divulging or publishing of, a communication

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transmitted by the plaintiff.” Nat’l Subscription Television v. S & H TV, 644 F.2d 820,

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826 (9th Cir. 1981). Section 605 applies to satellite television signals. DirecTV, Inc. v.

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Webb, 545 F.3d 837, 844 (9th Cir. 2008).

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Plaintiff has alleged that Defendant willfully intercepted and displayed the

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licensed program on May 7, 2016. Plaintiff’s allegations are supported by the sworn

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affidavit of investigator Amanda Hidalgo, who visited Taqueria Cajeme on May 7 and

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saw the program being displayed on a television in the establishment. Doc. 20-3 at 2.

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Hidalgo estimates that 45 patrons were watching the program. Id.

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Because the well-pled factual allegations of the complaint are deemed true upon

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default, see Geddes, 559 F.2d at 560, Plaintiff has shown that Defendant violated § 605.

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The second and third factors favor default judgment.

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C.

Amount of Money at Stake.

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Under the fourth Eitel factor, the Court considers the amount of money at stake in

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relation to the seriousness of the defendant’s conduct. Plaintiff seeks $10,000 in statutory
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damages and $20,000 in enhanced statutory damages. Doc. 20-1 at 12-18. As previously

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explained (Doc. 19 at 5), Defendants’ violation of § 605 was serious. They willfully

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displayed the program to nearly 50 patrons. Doc. 20-3 at 2. Moreover, this is the

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establishment’s second piracy offense. Doc. 20-1 at 16; see J & J Sports Prods., Inc. v.

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Meza, No. 2:16-cv-01214-JJT (D. Ariz. Nov. 14, 2015) (Doc. 21).

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D.

Possible Dispute Concerning Material Facts.

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Given the sufficiency of the complaint and Defendant’s default, “no genuine

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dispute of material facts would preclude granting [Plaintiff’s] motion.” PepsiCo, 238 F.

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Supp. 2d at 1177.

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E.

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Plaintiff properly served Defendant with the summons and complaint. Doc 15.

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It therefore is unlikely that Defendant’s failure to answer and the resulting default were

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due to excusable neglect. Gemmel v. Systemhouse, Inc., No. CIV 04-187-TUC-CKJ,

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2008 WL 65604, at *5 (D. Ariz. Jan. 3, 2008). This Eitel factor, like the other five

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discussed above, weighs in favor of default judgment.

Whether Default Was Due to Excusable Neglect.

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F.

Policy Favoring a Decision on the Merits.

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The last factor usually weighs against default judgment given that cases “should

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be decided on their merits whenever reasonably possible.” Eitel, 782 F.2d at 1472. The

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mere existence of Rule 55(b), however, “indicates that this preference, standing alone, is

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not dispositive.” PepsiCo, 238 F. Supp. 2d at 1177. Moreover, Defendant’s failure to

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answer or otherwise respond to the complaint “makes a decision on the merits

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impractical, if not impossible.” Id. Stated differently, it is difficult to reach the merits

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when the opposing party is absent. The Court therefore is not precluded from entering

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default judgment against Defendant. See id.; Gemmel, 2008 WL 65604, at *5.

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G.

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Six of the seven Eitel factors favor default judgment, and one factor is neutral.

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Conclusion.

The Court therefore concludes that default judgment is appropriate.

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III.

Damages.

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“A default judgment may be entered without a hearing on damages when the

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amount claimed is capable of ascertainment from definite figures contained in the

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documentary evidence or in detailed affidavits.” Taylor Made Golf Co. v. Carsten

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Sports, Ltd., 175 F.R.D. 658, 661 (S.D. Cal. 1997).

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Plaintiff does not seek actual damages, but rather statutory damages pursuant to

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47 U.S.C. § 605. Under this statute, “the party aggrieved may recover an award of

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statutory damages for each violation of subsection (a) of this section involved in the

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action in a sum of not less than $1,000 or more than $10,000, as the court considers

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just[.]”

§ 605(e)(3)(C)(i)(II).

The statute further states that when a violation “was

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committed willfully and for purposes of direct or indirect commercial advantage or

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private financial gain, the court in its discretion may increase the award of damages,

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whether actual or statutory, by an amount of not more than $100,000 for each violation.”

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§ 605(e)(3)(C)(ii). In assessing statutory damages, the Court is mindful of the need to

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deter piracy of licensed shows, as well as the importance of not putting restaurants or bars

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out of business for a single violation. See Kingvision Pay-Per-View Ltd. v. Lake Alice

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Bar, 168 F.3d 347, 350 (9th Cir. 1999)

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Plaintiff requests $10,000 in statutory damages and $20,000 in enhanced statutory

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damages, to be entered jointly and severally with previous awards against Defendants

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Nydia Meza and Taqueria Cajeme, LLC.

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Defendants pirated the program and displayed it to approximately 45 patrons. Doc. 20-3

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at 2.

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violation. Doc. 20-1 at 16. The Court finds the requested damages reasonable given this

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willful conduct. See Joe Hand Promotions, Inc. v. Wing Spot Chicken & Waffles, Inc.,

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920 F. Supp. 2d 659, 667-69 (E.D. Va. 2013) (awarding $4,000 in statutory damages and

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$27,000 in enhanced damages for displaying a pirated program to 40 patrons); J & J

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Sports Prods., Inc. v. McCausland, No. 1:10-CV-01564-TWP, 2012 WL 113786, at *3-4

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(S.D. Ind. Jan. 13, 2012) (awarding $10,000 in statutory damages and $30,000 in

The requested damages are reasonable.

The showing was not an accident, and is the establishment’s second piracy

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enhanced damages for displaying a pirated program to 15 patrons).

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IT IS ORDERED:

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Plaintiff’s motion for default judgment (Doc. 20) is granted.

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Default judgment is entered in favor of Plaintiff and against Defendant

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Francisco Meza-Jimenez, individually and d/b/a Taqueria Cajeme, in the

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amount of $30,000, jointly and severally with the damages awarded

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previously against Defendants Nydia P. Meza and Taqueira Cajeme, LLC

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(see Doc. 19).

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Dated this 8th day of January, 2018.

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