Joe Hand Promotions, Inc. v. Fierro et al

Filing 12

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 1/26/15: Plaintiff's motion for default judgment (ECF No. 10) shall be granted. Judgment be entered against defendant Fierro in the sum of $61,995 and this case be closed. F&R referred to Judge Troy L. Nunley. Objections to F&R due within fourteen days. (Kaminski, H)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOE HAND PROMOTIONS, INC.,

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Plaintiff,

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No. 2:13-cv-1550 TLN CKD

v.

FINDINGS AND RECOMMENDATIONS

CHRISTOPHER FIERRO, et al.,

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Defendants.

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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 Joe Hand Promotions, Inc. is a closed-circuit distributor of sports and

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entertainment programming. Defendant operates a bar and grill called “Canteena” located in

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Paradise, California. Plaintiff purchased and retains the commercial exhibition licensing rights to

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the “UFC 156: Edger v. Aldo” broadcast, which was broadcast on Saturday, February 2, 2013

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(“The Program”). Defendant intercepted and exhibited the program in the commercial

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establishment referred to above without authorization to do so.

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The record reflects that defendant Fierro was properly served with process on August 22,

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2013. Default was entered December 9, 2013. On January 14, 2015, plaintiff filed its motion for

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default judgment with a proof of service reflecting service of the motion on defendant.

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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).
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 defendant, and the affidavits submitted in support of the motion for default

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judgment establish the following circumstances: (1) defendant is the owner, operator, licensee,

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person in charge, or person with control over the commercial establishment at issue in this action;

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(2) plaintiff purchased and retains the commercial exhibition licensing rights to the Program; (3)

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plaintiff entered into sublicensing agreements with various commercial entities by which it

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granted those entities limited sublicensing rights to exhibit the Program to their patrons within

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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 his 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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defendant’s failure to pay for the right to exhibit the Program.

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In light of the entry of default against the defendant, 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 as well as with plaintiff’s request for entry of default and motion for default

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judgment. Defendant has had ample notice of plaintiff’s intent to pursue a default judgment

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against him.

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Although public policy generally favors the resolution of a case on its merits, the

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defendant’s 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. By its motion for default judgment, plaintiff seeks a

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judgment in the total amount of $61,995.00. That sum consists of $60,000 for the violation of

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Title 47,2 $1,500 in attorney’s fees and $495.00 in costs.3 Upon consideration of all of plaintiff’s

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briefing, the undersigned will recommend that damages be awarded in the amount requested.

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The affidavit of the investigator, John Lacher, establishes that defendant broadcast the

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program to the bar patrons, that there were seven screens in the establishment on which the

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Program was displayed (with screen size of approximately 32 inches), that the capacity of the bar

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was 75 people and that at the time of the broadcast, headcounts were taken three different times

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showing 20, 30, and 42 patrons. There is evidence in the record that defendant is a repeat

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violator. The court takes judicial notice of other actions venued in this District in which default

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judgment has been entered against defendant Fierro for engaging in the same conduct as alleged

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in the instant action. See J&J Sports Productions, Inc. v. Fierro, 2:11-cv-3006 MCE JFM (E.D.

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Cal.), ECF No. 14 (default judgment entered in the amount of $7,500); Joe Hand Promotions, Inc.

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v. Fierro, 2:11-cv-2263 JAM CMK (E.D. Cal.), ECF No. 13 (default judgment entered in the

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amount of $26,200). Under these circumstances, the court finds enhanced statutory damages

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should be awarded in the amount of $50,000 as requested by plaintiff. The amount of attorney’s

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fees and costs claimed by plaintiff are reasonable and supported by counsel’s affidavit.

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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. 10) be granted;

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2. Judgment be entered against defendant Fierro in the sum of $61,995; 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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Plaintiff seeks $10,000 under subsection (i) and enhanced damages of $50,000 under subsection
(ii).
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Although the complaint alleges a claim for conversion, plaintiff does not seek damages in the
motion for default judgment on that claim.
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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: January 26, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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