J & J Sports Productions Incorporated v. Gonzalez Arvizu et al

Filing 17

ORDER AND DEFAULT JUDGMENT - Plaintiff's motion for default judgment (Doc. 16 ) is granted. Default judgment is entered in favor of Plaintiff and against Defendants Francisca Angelica Gonzalez Arvizu, individually and d/b/a Taco Mich, and Taco Mich & Bar #4, LLC, an unknown business entity d/b/a Taco Mich, in the amount of $30,000. Signed by Judge David G Campbell on 2/15/18. (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-17-03130-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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Francisca Angelica Gonzalez Arvizu,
individually and d/b/a/ Taco Mich; and
Taco Mich & Bar #4, LLC, an unknown
business entity d/b/a Taco Mich

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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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Defendants Francisca Angelica Gonzalez Arvizu and Taco Mich & Bar #4, LLC, doing

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business as “Taco Mich.” Doc. 16. No response has been filed. For reasons stated

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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 Liam Smith and

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related undercard bouts. The program aired September 17, 2016.

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Plaintiff claims that Defendants intercepted the program and displayed it to

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patrons at Taco Mich, a Mexican restaurant and bar operated by Defendants. See Doc.

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16-3 at 5-8.

Plaintiff filed suit seeking statutory damages for Defendants’ alleged

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violations of the Communications Act of 1934 and the Cable and Television Consumer

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Protection and Competition Act of 1992, 47 U.S.C. §§ 553 and 605 et seq. Doc. 1.

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Plaintiff served process on Defendants on November 14, 2017. Docs. 8, 9. The

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Clerk entered Defendants’ default three weeks later after they failed to answer or

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otherwise respond to the complaint. Doc. 13. Plaintiff then filed the present motion for

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default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure.

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Doc. 16.

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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 Hous. of Marin v. Combs, 285

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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. Grp., 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 an award of damages in the amount

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of $30,000.00 is warranted.

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A.

Possible Prejudice to Plaintiff.

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The first Eitel factor weighs in favor of default judgment. Defendants 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 establish a violation of 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 alleges that Defendants willfully intercepted and displayed the licensed

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program to the public on September 17, 2016. Docs. 1 ¶¶ 9-14, 16 ¶ 4. These allegations

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are supported by the sworn affidavit of investigator Amanda Hidalgo, who visited Taco

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Mich on the night in question and saw the program being displayed on a 32-inch

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television. Doc. 16-4 at 2. Hidalgo witnessed two patrons inside the establishment. 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 Defendants 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 defendants’ conduct. A plaintiff may receive between

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$1,000 and $10,000 in statutory damages for each violation of § 605.

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§ 605(e)(C)(1)(2). The statutory damages may be enhanced by up to $100,000 where the
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47 U.S.C.

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violation was willful and for purposes of commercial advantage or financial gain.

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§ 605(e)(C)(2).

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Plaintiff seeks $10,000 in statutory damages and $50,000 in enhanced damages for

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the § 605 violation. Doc. 16-1 at 14. Plaintiff cites cases that consider a host of factors

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in determining the amount of damages to be awarded under § 605: (1) the size of the

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establishment, (2) the number and size of screens displaying the broadcast,

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(3) advertising to attract customers, (4) cover charges, (5) premium prices for food and

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drink, (6) the need to deter future violations, (7) the difficulty in detecting piracy, and

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(8) the widespread loss that occurs through piracy. Id. at 15-16 (citing J & J Sports

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Prods., Inc. v. Guzman, No. CV-F-08-0091, 2008 WL 2682605, at *4-5 (E.D. Cal. July 1,

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2008); Kingvision Pay-Per-View, Ltd. V. Gutierrez, 544 F. Supp. 2d 1179, 1185-86

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(D. Colo. 2008).

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Plaintiff has presented strong evidence of willfulness, noting that default judgment

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has been entered against Defendant Gonzalez Arvizu or her companies in six other piracy

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cases. Id. at 17. Plaintiff also has established the harm caused by the pirating of licensed

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broadcasts, and the need for an award that will serve as a deterrent to future violations.

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Doc. 16-5.

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Even so, the other factors listed above do not support a substantial enhanced

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damages award. Only two patrons were seen in the establishment, there is no evidence of

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advertising to entice a larger crowd, and the program was shown on a single 32-inch

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television. Doc. 16-4 at 2. The establishment did not have a cover charge, and it does

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not appear that premium prices were charged for food and drink (the investigator paid

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$6.50 for two beers). Id. Plaintiff provides no evidence of significant earnings by

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Defendants on the night of the broadcast. The cost of the program for this establishment

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was only $1,800. Doc. 16-5 ¶ 8.

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Having considered and balanced the relevant factors, the Court finds an enhanced

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damages award of $20,000.00 to be appropriate.

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addition to statutory damages of $10,000.
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This amount will be awarded in

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D.

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Given the sufficiency of the complaint and Defendants’ 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 Defendants with the summons and complaint. Docs 8, 9.

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It therefore is unlikely that Defendants’ 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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Possible Dispute Concerning Material Facts.

Whether Default Was Due to Excusable Neglect.

discussed above, weighs in favor of default judgment.

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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, Defendants’ 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 parties are absent. The Court therefore is not precluded from entering

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default judgment against Defendants. 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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The Court therefore concludes that default judgment is appropriate. The Court will

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award $10,000 in statutory damages enhanced by $20,000 for Defendants’ willful

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conduct and deterrence purposes.

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IT IS ORDERED:

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Plaintiff’s motion for default judgment (Doc. 16) is granted.

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2.

Default judgment is entered in favor of Plaintiff and against Defendants

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Conclusion.

Francisca Angelica Gonzalez Arvizu, individually and d/b/a Taco Mich,
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and Taco Mich & Bar #4, LLC, an unknown business entity d/b/a Taco

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Mich, in the amount of $30,000.

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Dated this 15th day of February, 2018.

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