J & J Sports Productions, Inc. v. Gomez et al
Filing
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ORDER ADOPTING 24 FINDINGS AND RECOMMENDATIONS; GRANTING 19 Motion for Default Judgment; ORDERED Plaintiff to file application for attorney's fees no later than fourteen days from date of service of this order, signed by District Judge Lawrence J. O'Neill on 10/30/12. (14) Day Deadline(Martin-Gill, 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,
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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
ORDER ADOPTING THE FINDINGS AND
RECOMMENDATIONS GRANTING
PLAINTIFF’S MOTION FOR DEFAULT
JUDGMENT
(Doc. 24)
J & J Sports Productions, Inc., (“Plaintiff”) seeks the entry of default judgment against
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Aurelio Cortez, individually and doing business as Los Manajares Restaurant (“Defendant”).
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(Doc. 19). On October 15, 2012, the Magistrate Judge issued findings and recommendations that
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Plaintiff’s motion be granted in the amount of $12,000. (Doc. 24). Plaintiff filed timely
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objections on October 29, 2012. (Doc. 25).
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I. Findings of the Magistrate Judge
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The Magistrate Judge determined the factors set forth by the Ninth Circuit in Eitel v.
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McCool for the entry of default judgment weighed in favor entry of default. (Doc. 24 at 3-7).
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First, the Magistrate Judge found Plaintiff would be prejudiced if default judgment is not granted
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at this time. See J & J Sports Prods. v. Rodriguez, 2010 U.S. Dist. LEXIS 20288, at *7 (E.D.
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Cal. March 5, 2010). Second, the Magistrate Judge found that Plaintiff sufficiently stated claims
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for a violation of the Copyright Act and conversion. Third, in considering the sum of money at
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stake, the Magistrate Judge found factor weighed against the entry of default judgment given the
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substantial amount sought against Defendant. See, e.g., Joe Hand Promotions v. Streshly, 655
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F.Supp.2d 1136, 1136 (S.D. Cal. 2009) (amount requested of $100,875 was “manifestly
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excessive under existing law”). Fourth, the Magistrate Judge found there is little possibility of
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dispute concerning material facts because Defendant has not appeared in the action. Finally, the
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Magistrate Judge found that it was unlikely that the entry of default by the Clerk of Court was not
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the result of excusable neglect. See Shanghai Automation Instrument Co., Ltd. v. Kuei, 194
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F.Supp.2d 995, 1005 (N.D. Cal. 2001).
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In addition to weighing the Eitel factors, the Magistrate Judge noted “the question arises
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as to whether the Court has the discretion to enter default judgment against less than all of the
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defendants” because other defendants remain in the action. (Doc. 24 at 7). The Magistrate Judge
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observed that the Federal Rules of Civil Procedure direct the entry of final judgment “only if the
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court expressly determines that there is no just reason for delay.” (Id.) (quoting Fed. R. Civ. P
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54(b)). The Magistrate Judge determined there was not a risk of inconsistent results among the
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defendants because “all defendants have already had default entered.” (Id. at 8).
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Having found the entry of default judgment was appropriate, the Magistrate Judge turned
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to the amount of damages to be awarded. Under the Copyright Act, a copyright owner may
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recover either (1) actual damages and any additional profits of the infringer, or (2) statutory
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damages amounting to a minimum of $750 and maximum of $30,000 per copyright infringement,
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as the Court considers just. 17 U.S.C. §§ 504(a), (c). Considering facts alleged such as the
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advertisements placed at Los Manajares Restaurant, display of the Program on two television sets
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including “a big screen,” and the number of patrons present, the Magistrate Judge determined an
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award of $12,000 was appropriate. (Doc. 24 at 8-9). Because Plaintiff elected to receive statutory
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damages rather than actual damages, the Magistrate Judge explained “damages for conversion are
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subsumed into the total of $12,000.” Id. at 9 (citing J &J Sports Productions v. Mannor, 2011
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U.S. Dist. LEXIS 32367, at *7 (E.D. Cal. Mar. 28, 2011) (declining to award damages for
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conversion because “plaintiff has been sufficiently compensated through the federal statutory
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scheme”).
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II. Plaintiff’s Objections
Plaintiff objects to the amount of statutory damages awarded, and asserts “this Court
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should increase the statutory damages awarded to Plaintiff to $150,000.” (Doc. 25 at 3).
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According to Plaintiff, the recommended award is insufficient under the facts of the case and
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does not sufficiently address Defendant’s willful infringement. (Id.) Plaintiff notes that when a
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copyright owner demonstrates infringement was committed willfully, the Court may increase an
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award of statutory damages up to $150,000. (Id. at 4) (citing 17 U.S.C. § 504(c)(2)). Plaintiff
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contends Defendant’s conduct “should be considered willful,” because he “must have undertaken
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specific wrongful actions to intercept and/or receive and broadcast the encrypted telecast.” (Id. at
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5). Further, Plaintiff argues deterrence is an important objective of the Copyright Act, and
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asserts the damage award should be increased for this purpose. (Id. at 8-9) (citing, e.g., J & J
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Sports Productions, Inc. v. Herrera, 2011 WL 643413, at *4 (E.D. Cal. Feb. 17, 2011) (“the
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Court is also mindful that minimal damage awards may result in a perceived lack of
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consequences for signal piracy”). For all these reasons, Plaintiff asserts the Court “should reject
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the damages recommendation . . . and increase the damages awarded to Plaintiff to an amount
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more commensurate with Defendant’s willful infringement.” (Id. at 8).
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III. Discussion
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As observed by both the Magistrate Judge and Plaintiff, an award of statutory damages
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may range from $750 to $30,000 “as the court considers just.” 17 U.S.C. § 504(c)(1). Further,
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the award may be increased for willful violations. 17 U.S.C. § 504(c)(2).
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Here, the Magistrate Judge noted the structures of the Copyright Act and the
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Communications Act are similar, and considered factors to determine an appropriate award,
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including: “the seating capacity of the establishment, the number of patrons present at the time
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of the broadcast, whether there was a cover charge, whether the Defendant advertised the
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broadcast, the number and size of televisions used for the broadcast, and whether a premium was
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charged on food or drink.” (Doc. 24 at 8) (citing J & J Sports Prods. v. Brown, 2011 U.S. Dist.
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LEXIS 142711, at *11-12 (E.D. Cal. Dec. 11, 2011)). Specifically, the Magistrate Judge noted
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there was not a cover charge, and the investigator did not note whether a premium was charged
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for food or drinks. (Id.) Further, the investigator did not identify the capacity of the restaurant,
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although he noted there were about 40 people present. (Id.) The fight was advertised “with a
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four-foot banner on the walkway, with pictures of Oscar de La Hoya and Manny Pacquiao . . .
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[and] a poster on the doors of the restaurant.” (Id. at 8-9). Given these factors, the Magistrate
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Judge found “an award of $12,000 is appropriate.” (Id. at 9).
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As noted by the Magistrate Judge, Courts in this district have found the statutory
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maximum is not an appropriate award for a first-time offender, and in the absence of aggravating
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factors. (Doc. 24 at 9, n. 2); see, e.g., J & J Sports Productions, Inc. v. Morales, 2012 U.S. Dist.
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LEXIS 30942 (E.D. Cal. March 8, 2012) (awarding $4,400 in statutory damages where the
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sublicense cost $2,200 for the broadcast that the defendants displayed on three televisions,
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ranging in size up to 54”); J & J Sports Productions v. Sorondo, 2011 U.S. Dist. LEXIS 99951
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(E.D. Cal. Sept. 6, 2011) (awarding $3,600 in statutory damages, an amount two times the cost of
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a sublicense). Accordingly, the Magistrate Judge concluded the statutory maximum was not an
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appropriate award.
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Notably, Plaintiff has only requested default judgment against a single defendant, while
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two others remain in the action. As stated by the Magistrate Judge, the award of $12,000,“ is
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more than five times the cost of a proper sublicense for the Program, [and] both compensates
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Plaintiff for the wrongful act and is a suitable deterrent against future acts of copyright
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violation.” (Doc. 24 at 9-10). Moreover, Plaintiff fails to offer meaningful support for $150,000
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assessed against one of three defendants.
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IV. Conclusion and Order
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In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley
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United School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court has conducted a de novo
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review of the case. Having carefully reviewed the entire file, the Court finds that the findings
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and recommendation are supported by the record and by proper analysis.
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Accordingly, IT IS HEREBY ORDERED:
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The Findings and Recommendations filed October 15, 2012 (Doc.24) are
ADOPTED IN FULL;
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Plaintiff’s request for default judgment against Defendant Aurelio Cortez for the
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violation of the Copyright Act and conversion is GRANTED in the amount of
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$12,000.00; and
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3.
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Plaintiff SHALL file its application for attorney’s fees pursuant to 17 U.S.C. §
505 no later than fourteen days from date of service of this Order.
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IT IS SO ORDERED.
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Dated:
66h44d
October 30, 2012
/s/ Lawrence J. O'Neill
UNITED STATES DISTRICT JUDGE
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