J & J Sports Productions, Inc. v. Strivers
Filing
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FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 11/26/13 RECOMMENDING that Plaintiff's 12 motion for default judgment be granted; judgment be entered against the defendant Sekou Strivers d/b/a/ Sekous BBQ Fried Chicken and Seafood Restaurant in the sum of $40,000; and this case be closed. Within 14 days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Motion referred to Judge Kimberly J. Mueller. (Kastilahn, A)
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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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No. 2:13-cv-0876 KJM CKD
Plaintiff,
v.
FINDINGS AND RECOMMENDATIONS
SEKOU STRIVERS,
Defendant.
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Presently before the court is plaintiff’s application for default judgment. This matter was
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submitted without oral argument. The undersigned has fully considered the briefs and record in
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this case and, for the reasons stated below, will recommend that plaintiff’s application for default
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judgment be granted.
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BACKGROUND
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Plaintiff J&J Sports Productions, Inc. is a closed-circuit distributor of sports and
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entertainment programming. Defendant operated a restaurant called “Sekou’s BBQ Fried
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Chicken and Seafood Restaurant” located on Bercut Dr. in Sacramento, California. Plaintiff
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purchased and retains the commercial exhibition licensing rights to “Floyd Mayweather, Jr. v.
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Miguel Cotto, WBA Super World Light Middleweight Championship Fight Program,” which was
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broadcast on Saturday, May 5, 2012 (“The Program”). Defendant intercepted and exhibited the
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program in the commercial establishment referred to above without authorization to do so.
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The record reflects that defendant Strivers was properly served with process on August
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29, 2013. ECF No. 9, 16. Default was entered against defendant Strivers on September 26, 2013.
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On November 6, 2013, plaintiff filed its motion for default judgment with a proof of service
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reflecting service of the motion on defendant at the address where defendant was served with
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process.
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LEGAL STANDARDS
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Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for entry of
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default judgment. Upon entry of default, the complaint’s factual allegations regarding liability
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are taken as true, while allegations regarding the amount of damages must be proven. Dundee
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Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope
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v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977));
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see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v.
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Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
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Where damages are liquidated, i.e., capable of ascertainment from definite figures
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contained in documentary evidence or in detailed affidavits, judgment by default may be entered
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without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages,
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however, require “proving up” at an evidentiary hearing or through other means. Dundee, 722
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F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
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Granting or denying default judgment is within the court’s sound discretion. Draper v.
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Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.
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1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v.
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McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by
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the court are (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive
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claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the
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possibility of a dispute concerning material facts; (6) whether the default was due to excusable
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neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring
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decisions on the merits. Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2],
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at 55-24 to 55-26).
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ANALYSIS
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I. Whether Default Judgment Should Be Entered
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The factual allegations of plaintiff’s complaint, taken as true pursuant to the entry of
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default against defendants, and the affidavits submitted in support of the motion for summary
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judgment establish the following circumstances: (1) defendant is the owner, operator, licensee,
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permitee, person in charge, or person with control over the commercial establishment at issue in
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this action; (2) plaintiff purchased and retains the commercial exhibition licensing rights to the
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Program; (3) plaintiff entered into sublicensing agreements with various commercial entities by
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which it granted those entities limited sublicensing rights to exhibit the Program to their patrons
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within their establishments; (4) as a commercial distributor of sporting events, plaintiff expended
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substantial monies marketing, advertising, promoting, administering, and transmitting the
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program to its customers; (5) with full knowledge that the program was not to be intercepted,
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received, and exhibited by unauthorized entities, defendant exhibited the program and did so
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willfully and for purposes of commercial or private gain at both locations; and (6) defendant
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violated either 47 U.S.C. § 553 or 47 U.S.C. § 605.
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In the motion for default judgment, plaintiff seeks enhanced statutory damages for willful
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violation of the Communications Act, 47 U.S.C. § 605.1 Under section 605, statutory damages
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may be awarded between $1,000 and $10,000 for violation of the Federal Communications Act
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and up to $100,000 when the violation “was committed willfully and for purposes of direct or
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indirect commercial advantage or financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). Because
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defendant has not appeared in this action and plaintiff has been precluded from conducting
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In the complaint, plaintiff also seeks damages for willful violation of the Cable & Television
Consumer Protection & Competition Act, 47 U.S.C. § 553. Statutory damages are allowed under
section 553 of $250 to $10,000 or up to $50,000 for willful violations. 47 U.S.C. § 553(c)(3).
Damages may not be awarded under both section 605 and 553. See J & J Sports Productions, Inc.
v. Manzano, NO. C 08-01872 RMW, 2008 WL 4542962, at *2 (N.D. Cal. Sept. 29, 2008) (“A
signal pirate violates section 553 if he intercepts a cable signal, he violates section 605 if he
intercepts a satellite broadcast. But he cannot violate both by a single act of interception.”); see
also J & J Sports Productions, Inc. v. Ro, No. C 09-02860 WHA, 2010 WL 668065, at *3 (N.D.
Cal. Feb. 19, 2010); J & J Sports Productions, Inc. v. Prado, No. 2:07-cv-02104 GEB DAD, 2008
WL 822159, at *3 (E.D. Cal. Mar. 27, 2008); Kingvision Pay Per View, Ltd., v. Williams , 1 F.
Supp. 2d 1481, 1484 (S.D. Ga. 1998).
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discovery, the precise means of transmission cannot be ascertained. At a minimum, however,
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plaintiff’s complaint and evidence support a conclusion that defendant intercepted, without
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authorization, a transmission of the Program and broadcast it to its patrons. Plaintiff should not
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be prejudiced by defendant’s failure to appear or defend itself in this action and the court
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concludes, therefore, that statutory damages should be awarded under section 605.
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After weighing the Eitel factors, the undersigned finds that the material allegations of the
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complaint support plaintiff’s claims. Plaintiff will be prejudiced if default judgment is denied
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because plaintiff has no other recourse for recovery of the damages suffered due to the
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defendants’ failure to pay for the right to exhibit the Program.
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In light of the entry of default against the defendants, there is no apparent possibility of a
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dispute concerning the material facts underlying the action. Nor is there any indication that the
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defendant’s default resulted from excusable neglect, as defendant was properly served with
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plaintiff’s pleading and plaintiff’s request for entry of default and motion for default judgment
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were also served on defendant at the same address where service of summons was effectuated.
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Defendant has had ample notice of plaintiff’s intent to pursue a default judgment against him.
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Although public policy generally favors the resolution of a case on its merits, the
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defendants’ failure to make a proper appearance and defend against plaintiff’s claims has made a
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decision on the merits impossible in this case. Because most of the Eitel factors weigh in
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plaintiff’s favor, the undersigned, while recognizing the public policy favoring decisions on the
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merits, will recommend that default judgment be entered against the defaulted defendant.
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II. Terms of Judgment to Be Entered
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After determining that entry of default judgment is warranted, the court must next
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determine the terms of the judgment. Upon consideration of all of plaintiff’s briefing, the
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undersigned will recommend that damages be awarded but not in the amount requested.
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By its motion for default judgment, plaintiff seeks a judgment in the total amount of
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$114,200.00. That sum consists of $110,000 for the violation of Title 47 and $4,200 for the tort
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of conversion. Granting or denying default judgment is within the court’s sound discretion, and
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one of the factors the court is free to consider in exercising its discretion is the sum of money at
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stake. See J & J Sports Productions, Inc. v. Betancourt, No. 08cv937 JLS (POR), 2009 WL
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3416431, at *3 (S.D. Cal. Oct. 20, 2009).
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The affidavit of the investigator, David Callaway, establishes that defendant broadcast the
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program to the restaurant patrons, that there were eight screens in the establishment on which the
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Program was displayed (with screen sizes of approximately 25-30 inches), that the capacity of the
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restaurant was 150-200 people and that at the time of the broadcast, the number of patrons was
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estimated to be 100-120 patrons. At a later time during the broadcast, there were approximately
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150 patrons. A cover charge of $15.00 was required to enter the establishment. It appears
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defendant may be a repeat violator. See Joe Hand Promotions, Inc. v. Strivers, et al., (E.D. Cal.)
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case no. 2:13-cv-0937 LKK AC. Under these circumstances, the court finds enhanced statutory
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damages should be awarded and that default judgment in the amount of $40,000 is appropriate.
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In his declaration in support of the motion for default judgment, counsel indicates that
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plaintiff also seeks the award of $4,200 in damages for the state law tort of conversion,
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representing the amount defendant would have paid plaintiff to show the Program lawfully
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according to the rate card for the event. The undersigned will not recommend an award of
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damages with respect to plaintiff’s conversion claim. The statutory damages provisions at issue
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serve not only a deterrent function, see J & J Sports Prods. v. Orellana, No. 08-05468 CW, 2010
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WL 1576447, at *3 (N.D. Cal. Apr. 19, 2010) (unpublished), but also a compensatory function,
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which is evidenced by provisions that permit the award of statutory damages or actual damages in
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a civil action. See 47 U.S.C. § 605(e)(3)(C)(I); 47 U.S.C. § 553(c)(3)(A)(i). Here, the
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recommended award in the amount of $40,000 sufficiently compensates plaintiff. See J & J
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Sports Productions, Inc. v. Ferreyra, No. C 08-128 LKK KJM, 2008 WL 4104315, at *1 (E.D.
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Cal. Aug. 28, 2008) (“Inasmuch as plaintiff seeks statutory damages rather than actual damages,
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plaintiff’s request for damages for conversion should be denied.”).
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Finally, although the prayer for relief in the complaint indicates that plaintiff seeks an
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award of costs and attorney fees, the motion for default judgment does not contain any argument
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in support of such a request. Moreover, no evidence of costs or attorney fees incurred was
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submitted to the court in connection with the pending motion. Accordingly, the court will not
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recommend an award of costs and attorney’s fees.
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CONCLUSION
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For the reasons set forth above, IT IS HEREBY RECOMMENDED that:
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1. Plaintiff’s motion for default judgment (ECF No. 12) be granted;
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2. Judgment be entered against the defendant Sekou Strivers d/b/a/ Sekou’s BBQ Fried
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Chicken and Seafood Restaurant in the sum of $40,000; and
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3. This case be closed.
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These findings and recommendations are submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
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after being served with these findings and recommendations, any party may file written
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objections with the court and serve a copy on all parties. Such a document should be captioned
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“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
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within the specified time may waive the right to appeal the District Court’s order. Martinez v.
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Ylst, 951 F.2d 1153 (9th Cir. 1991).
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Dated: November 26, 2013
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
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