J & J Sports Productions, Inc. v. Day

Filing 20

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 8/15/2011: ORDERING that the Clerk shall serve the Findings and Recommendations on the defaulting defendant at the address indicated on plaintiff's proof of service; RECOMMENDATION that 17 MOTION for DEFAULT JUDGMENT against Defendant David Michael Day, individually and d/b/a Nick's Nightclub and Bar a/k/a Off Limits filed by J & J Sports Productions, Inc. be granted in part; judgment shoul d be rendered in the amount of $10,000 in statutory damages and $20,000 in enhanced statutory damages for a total award of $30,000. Matter referred to Lawrence K. Karlton. Objections to F&R may be filed w/i 14 days from the date of service. (Waggoner, D)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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Plaintiff,

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CIV. NO. S-10-3023 LKK GGH

vs.
DAVID MICHAEL DAY, individually
and d/b/a NICK’S NIGHTCLUB AND BAR
a/k/a OFF LIMITS,

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ORDER AND
FINDINGS AND RECOMMENDATIONS

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Defendant.
___________________________/

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Presently before the court is plaintiff’s application for entry of default judgment

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against defendant David Michael Day, d/b/a Nick’s Nightclub a/k/a Off Limits, filed April 21,

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2011.1 Upon review of the motion and the supporting documents, and good cause appearing, the

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court issues the following order and findings and recommendations.

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BACKGROUND

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On November 9, 2010, plaintiff filed the underlying complaint in this action
against defendant David Michael Day, d/b/a Nick’s Nightclub a/k/a Off Limits, alleging

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The matter was originally scheduled for hearing on May 26, 2011; however, it was
vacated after the court determined that a hearing was not necessary. Order, filed May 19, 2011.
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defendant unlawfully intercepted and exhibited a broadcast of a program entitled, “Firepower:

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Manny Pacquiao v. Miguel Cotto, WBO Welterweight Championship Fight Program,”

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(“Program”), in his establishment for commercial advantage without obtaining a sublicense from

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plaintiff for its use, in violation of the Communications Act, 47 U.S.C. § 605, the Cable

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Communications Policy Act, 47 U.S.C. § 553, and state law. The complaint alleges defendant

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exhibited the Program on November 14, 2009. The summons and complaint were served on

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defendant by personal service on February 24, 2011. Fed. R. Civ. P. 4(e)(2). Pacific Atlantic

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Trading Co. v. M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void

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without personal jurisdiction). Defendant David Michael Day has failed to file an answer or

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otherwise appear in this action. The clerk entered default against defendant on March 30, 2011.

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Request for entry of default and the instant motion for default judgment and

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supporting papers were served by mail on defendant at his last known address. Defendant did

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not file an opposition to the motion for entry of default judgment. Plaintiff seeks an entry of

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default judgment in the amount of $112,200 against defendant David Michael Day.

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DISCUSSION

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Entry of default effects an admission of all well-pleaded allegations of the

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complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir.

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1977). The court finds the well pleaded allegations of the complaint state claims for which relief

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can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976).

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The complaint requests, in the event of default, an award of damages pursuant to

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47 U.S.C. § 605 et seq. (The Communications Act) and 47 U.S.C. § 553, et seq. (The Cable

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Communications Policy Act), as well as compensatory and punitive damages for conversion, and

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restitution for violation of Cal. Bus. & Prof. Code § 17200, et seq. (Complaint at 3-7.) The

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instant motion for default judgment requests damages pursuant to 47 U.S.C. § 605 in the amount

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of $10,000 in statutory damages, $100,000 in enhanced statutory damages based on the

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wilfulness of the conduct, and $2,200 in compensatory damages for conversion.2 Section 605

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prohibits the unauthorized publication or use of communications such as the Program. Section

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605(e)(3)(A) also provides for a private civil action for a violation of 605(a). National

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Subscription Television v. S&H TV, 644 F.2d 820, 821 n. 1 (9th Cir. 1981).

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The court deems defaulting defendant, by his failure to appear or defend this

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action, to have waived any objections to the statutory source of the damages prayed for in the

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instant motion. The memorandum of points and authorities and affidavits filed in support of the

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motion for entry of default judgment supports the finding that plaintiff is entitled to the relief

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requested. There are no policy considerations which preclude the entry of default judgment of

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the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986).

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One of the factors the court is free to consider in exercising its discretion to grant

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or deny default judgment is the sum of money at stake. See J & J Sports Productions, Inc. v.

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Betancourt, No. 08cv937 JLS (POR), 2009 WL 3416431, at *3 (S.D. Cal. Oct. 20, 2009).

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Under section 605, statutory damages may be awarded between $1,000 and

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$10,000 for violation of the Federal Communications Act and up to $100,000 when the violation

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

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financial gain.” 47 U.S.C. § 605(e)(3)(C)(i)-(ii). Plaintiff has referenced one other action in the

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Eastern District against this defendant for the same violations. (Riley Supp. Decl., ¶¶ 4-5, Ex. 1,

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dkt. #17-4.) See Joe Hand Promotions, Inc. v. Ray, Civ.S. 10-0095 GEB KJN. This other filing

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does not prove defendant’s willfulness because defendant was not served with the complaint in

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that action until February 23, 2010, after he exhibited the Program in this case. Nevertheless, the

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court has considered other factors, including that the Program was shown on three television sets,

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albeit to an audience of only 15 to 17 people, and in a relatively small city with a population of

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less than 100,000. There was no cover charge; however, the showing of the Program was

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Because plaintiff has eliminated his request for damages under § 553 and for restitution
under state law, these damages will not be addressed.
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intended to increase business. (Slay Aff., dkt. #17-3.) See Joe Hand Promotions, Inc. v. Cat’s

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Bar, Inc., 2009 WL 700125, *2 (C.D. Ill. 2009).

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The undersigned has considered the plethora of cases cited by plaintiff which

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document the enhanced award, and appreciates the briefing. The undersigned has also

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considered plaintiff’s statement that “nominal” damages have not alleviated the piracy problem.

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However, some of us do not live in the world where $10,000.00 is nominal, and this may well be

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true for David Michael Day, proprietor of Nick’s Night Club a/k/a Off Limits. In rethinking the

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amount of enhanced damages that others and the undersigned may have recommended in the past

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for willful violations of the anti-digital piracy law, and without excusing at all the nature of the

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violation and the refusal to defend in court, the damages awarded will be substantially less than

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the $100,000.00 requested by plaintiff.

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Plaintiff also suggests that the damages could be calculated by multiplying the

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probable fee which would have been charged if defendant had acted lawfully ($2,200) by the

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number of observed patrons (see fn. 5 of plaintiff’s brief) which would determine the enhanced

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amount of damages at $34,474.00. Of course, if earlier paid, the $2,200 fee would have covered

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all the patrons. The undersigned believes the multiple fee in addition to statutory damages as too

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much. A total of $30,000.00 ($10,000 and $20,000) should be enough to compensate “plus”

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plaintiff in this case.

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This court therefore will recommend statutory damages under section 605 in the

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amount of $10,000 and enhanced statutory damages in the amount of $20,000. Inasmuch as the

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award of $30,000 in statutory damages will be permitted, plaintiff’s request for damages for

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conversion should be denied.

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Insofar as the application for default judgment seeks attorneys’ fees and costs but

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the memorandum in support does not contain argument in support of this request, and there is no

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declaration supporting this request, it is denied without prejudice to its renewal after entry of

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judgment.
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CONCLUSION
IT IS ORDERED that the Clerk of the Court shall serve these findings and

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recommendations on the defaulting defendant at the address indicated on plaintiff’s proof of

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service of the instant motion.

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In view of the foregoing findings, IT IS RECOMMENDED that plaintiff’s motion

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for entry of default judgment, (dkt. # 17), be GRANTED in part. Judgment should be rendered

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in the amount of $10,000 in statutory damages and $20,000 in enhanced statutory damages for a

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total award of $30,000.

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These findings and recommendations are submitted to the United States District

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Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within

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fourteen (14) days after being served with these findings and recommendations, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the

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objections shall be served and filed within fourteen (14) days after service of the objections. The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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DATED: 08/15/2011
/s/ Gregory G. Hollows
___________________________________
GREGORY G. HOLLOWS
UNITED STATES MAGISTRATE JUDGE

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GGH:076/J&JSports3023.def.wpd

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