Joe Hand Promotions, Inc. v. Burleson

Filing 14

ORDER re PROOF OF DAMAGES. Plaintiff shall file proof of conversion damages on or before September 14, 2011; and the hearing on Plaintiff's motion currently set for September 14, 2011, is VACATED and will be reset if the Court determines a hearing is necessary. Order signed by Magistrate Judge Sheila K. Oberto on 9/8/2011. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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JOE HAND PROMOTIONS, INC.,

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CASE NO. 1:11-cv-00499-LJO-SKO

Plaintiff,
v.

ORDER REGARDING PROOF OF
DAMAGES

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COREY BURLESON,
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Defendant.
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/
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I.

INTRODUCTION

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On August 5, 2011, Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”) filed the present motion

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for default judgment against Defendant Corey Burleson, aka Rodney Burleson, aka Corey Rodney

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Burleson, dba Freeway Lanes Bowling Alley, aka Nacho Mama’s (“Defendant” or “Corey

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Burleson”). (Doc. 13.)

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additional proof of damages pursuant to Federal Rule of Civil Procedure 55(b)(2)(B) to support its

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claim for conversion.

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For the reasons set forth below, the Court orders Plaintiff to submit

II. FACTUAL BACKGROUND

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Plaintiff filed the instant action on March 24, 2011. (Doc. 1.) The complaint alleges

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violations of 47 U.S.C. §§ 605 and 553, as well as causes of action for conversion and for violation

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of the California Business and Professions Code section 17200, et. seq. The suit is based on

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Defendant’s alleged unlawful interception, receipt, and exhibition of “Ultimate Fighting

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Championship 111: Georges St. Pierr v. Dan Hardy” (the “Program”), including all under-card

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bouts and fight commentary, that was telecast nationwide on March 27, 2010. (Doc. 1, ¶¶ 9, 12.)

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According to the complaint, Plaintiff was the exclusive commercial distributor of the Program.

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(Doc. 1, ¶ 9.)

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Count I of the complaint asserts a violation of 47 U.S.C. § 605 (Unauthorized Publication

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or Use of Communications) alleging that Defendant knowingly intercepted, received, and exhibited

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the Program for purposes of direct or indirect commercial advantage or private financial gain. (Doc.

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1, ¶¶ 8-17.) Plaintiff seeks $100,000 in statutory damages as well as attorney’s fees and costs. (Doc.

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1, ¶ 17.) Count II alleges a violation of 47 U.S.C. § 553 (Unauthorized Reception of Cable Services)

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based upon the same allegations. (Doc. 1, ¶¶ 18-22.) Plaintiff requests $60,000 in statutory

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damages, as well as attorney’s fees and costs. (Doc. 1, ¶ 22.) Count III states a claim for conversion

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alleging that Defendant tortiously obtained possession of the Program and wrongfully converted it

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for his own benefit. (Doc. 1, ¶¶ 23-26.) As to Count III, Plaintiff seeks compensatory damages,

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exemplary damages and punitive damages. (Doc. 1, ¶ 26.) Count IV of the complaint alleges a

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violation of California Business & Professions Code § 17200, et. seq. (Doc. 1, ¶¶ 27-36.) As to

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Count IV, Plaintiff seeks restitution, declaratory relief, injunctive relief, attorney’s fees, and costs

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of suit. (Doc. 1, ¶¶ 35-36.)

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On July 7, 2011, the summons as to Defendant Corey Burleson was returned showing that

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service of the summons and complaint was effected by substitute service on June 12, 2011. (Doc.

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9.) Defendant failed to respond to the complaint by the July 5, 2011, deadline. On July 15, 2011,

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pursuant to Plaintiff’s request, the Clerk entered default against Defendant. (Doc. 11.) On August

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5, 2011, Plaintiff filed this motion for default judgment against Defendant. (Doc. 13.)

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III.

DISCUSSION

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For purposes of default judgment, the complaint’s factual allegations regarding liability are

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taken as true, but allegations as to damages must be proven. Dundee Cement Co. v. Howard Pipe

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& Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983); see also TeleVideo Sys., Inc. v. Heidenthal,

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826 F.2d 915, 917-18 (9th Cir. 1987); Fed. R. Civ. P. 55(b)(2) (Court may conduct hearings or make
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referrals when, to enter default, it needs to determine the amount of damages). Here, Plaintiff

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requests that the Court enter default judgment in the amount of $900 as damages for conversion.

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(Doc. 13-1, 22:16-23.) Plaintiff, however, has offered no proof substantiating that it was damaged

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in the amount of $900. Therefore, the Court orders Plaintiff to file proof of damages supporting the

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monetary amount it seeks for conversion.

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IV.

CONCLUSION

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Accordingly, it is HEREBY ORDERED that:

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1.

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Plaintiff shall file proof of conversion damages on or before September 14, 2011;
and

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2.

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The hearing on Plaintiff's motion currently set for September 14, 2011, is VACATED
and will be reset if the Court determines a hearing is necessary.

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IT IS SO ORDERED.

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Dated:
ie14hj

September 8, 2011

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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