J & J Sports Productions, Inc. v. Gomez et al

Filing 22

ORDER DIRECTING Plaintiff to File Supplemental Briefing, signed by Magistrate Judge Jennifer L. Thurston on 8/21/2012. (Hall, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,
v.

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JOSE ALFREDO GOMEZ, et al.,

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Defendants.

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) Case No.: 1:10-cv-02249 - LJO - JLT
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) ORDER DIRECTING PLAINTIFF TO FILE
) SUPPLEMENTAL BRIEFING
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J & J Sports Productions, Inc., (“Plaintiff”) seeks the entry of default judgment against Aurelio

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Cortez, individually and doing business as Los Manajares Restaurant (“Defendant”). (Doc. 19). The

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motion is unopposed. For the following reasons, Plaintiff is directed to file supplemental briefing in

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support of the application for default judgment.

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I.

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Procedural History
On December 3, 2010, Plaintiff filed its complaint against Jose Alfredo Gomez and Silvia C.

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Gomez, individually and doing business as Los Manjares Restaurant. (Doc. 1). Upon application of

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Plaintiff, default was entered against these defendants pursuant to Fed. R. Civ. P. 55(a) for their failure

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to answer. (Docs. 9-10). However, Jose Gomez and Silvia Gomez filed a “Notice of Filing

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Bankruptcy” on April 20, 2011. (Doc. 13).

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Plaintiff filed its First Amended Complaint against Jose Gomez, Silvia Gomez, and Aurelio
Cortes, individually and doing business as Los Manjares Restaurant on May 17, 2011. (Doc. 14).
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According to Plaintiff, the company secured nationwide commercial exhibition rights to broadcast

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“Oscar De La Hoya v. Manny Pacquiao Welterweight Championship Fight Program” (the “Program”).

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(Doc. 14 at 4). However, Plaintiff contends the Program was broadcast in Los Manjares Restaurant

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without the purchase of a proper sublicense. Id. at 5.
Defendant Aurelio Cortes was properly served with the First Amended Complaint, but failed to

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respond within the time prescribed by the Federal Rules of Civil Procedure. Upon application of

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Plaintiff, default was entered against Defendant pursuant to Fed. R. Civ. P. 55(a) for his failure to

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answer on April 16, 2012. (Doc. 18). Plaintiff now seeks the entry of default judgment against

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Defendant. (Doc. 19).

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II.

Applications for Default Judgment
The Federal Rules of Civil Procedure govern applications to the Court for issuance of default

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judgment. Where a default was entered because “a party against whom a judgment for relief is sought

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has failed to plead or otherwise defend,” the party seeking relief may apply to the court for a default

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judgment. Fed. R. Civ. P. 55(a)-(b). An application for default judgment qualifies as a motion before

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the Court. Johnson v. Cate, 2009 U.S. Dist. LEXIS 57942, at *2 (E.D. Cal. June 23, 2009).

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Therefore, Plaintiff’s application “should include briefs on the pertinent issues.” Id.; see also Local

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Rule 230(b).
Significantly, however, Plaintiff seeks default judgment on a claim arising under the Federal

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Communications Act of 1934, arising under 47 U.S.C. § 605. (Doc. 19). This claim is not present in

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Plaintiff’s First Amended Complaint, which alleges violations of the Copyright Act arising under 17

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U.S.C. § 501. (Doc. 14 at 3-7). A default judgment must not differ in kind from, or exceed in amount,

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what is demanded in the pleading.” Fed. R. Civ. P. 54(c). Accordingly, supplemental briefing is

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required on the alleged violations of the Copyright Act and the amount award requested by Plaintiff.

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III.

Default Judgment against a Single Defendant

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Under the Federal Rules of Civil Procedure: “When an action presents more than one claim for

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relief—whether as a claim, counterclaim, crossclaim, or third-party claim—a or when multiple parties

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are involved, the court may direct entry of a final judgment as to one or more, but fewer than all,

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claims or parties only if the court expressly determines that there is no just reason for delay.” Fed. R.
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Civ. P. 54(b). Therefore, the Court has discretion to decline entry of default judgment where a just

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reason exist to delay entry of a final judgment to defendants Jose Gomez and Silvia Gomez.
The Supreme Court warned that “absurdity might follow” in instances where a court “can

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lawfully make a final decree against one defendant . . . while the cause was proceeding undetermined

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against the others.” Frow v. De La Vega, 82 U.S. 552, 554 (1872). Moreover, “[c]onsiderations of

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fairness and the sound administration of justice are also applicable to the entry of default judgment in

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a case involving multiple parties or claims.” Johnson, 2009 U.S. Dist. LEXIS 57942, at *5. The

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Ninth Circuit held that a court should not enter default judgment where “the defendants are similarly

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situated defendants, even if not jointly and severally liable, and where delay is necessary to avoid an

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inherently inconsistent result.” Id., citing In re First T.D. & Investment, Inc., 253, F.3d 520, 532 (9th

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Cir. 2001).

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Here, it is unclear whether Plaintiff intends to pursue its claims against Jose Gomez and Silvia

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Gomez given the notice of a bankruptcy proceeding, or whether Plaintiff has abandoned these claims

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by filing an amended complaint identifying Aurelio Cortez as a defendant, and seeking default

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judgment against him alone.

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IV.

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Conclusion
Plaintiff failed to address its claim for a violation of the Copyright Act by Defendant in its

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request for default judgment. In addition, it is unclear whether default judgment against Defendant is

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proper while Jose Gomez and Silvia Gomez would remain in the action.

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Accordingly, IT IS HEREBY ORDERED: Plaintiff SHALL file supplemental points and

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authorities in support of its application for default judgment, addressing the issues set forth above, no

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later than September 5, 2012.

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IT IS SO ORDERED.
Dated:

August 21, 2012

/s/ Jennifer L. Thurston
UNITED STATES MAGISTRATE JUDGE

DEAC_Signature-END:

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