J & J Sports Productions, Inc. v. Ahmadi
Filing
17
ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Carolyn K. Delaney on 3/29/2016 ORDERING that default be entered against defendant; and RECOMMENDING that 14 motion for default judgment be granted; Referred to Judge Morrison C. England, Jr.; Objections due within 14 days after being served with these F & R's.(Reader, L)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
J & J SPORTS PRODUCTIONS, INC.,
12
13
14
15
No. 2:15-cv-0941 MCE CKD
Plaintiff,
v.
ORDER and FINDINGS AND
RECOMMENDATIONS
MOHAMMAD AHMADI,
Defendant.
16
17
Presently before the court is plaintiff’s application for default judgment. This matter was
18
submitted without oral argument. The undersigned has fully considered the briefs and record in
19
this case and, for the reasons stated below, will recommend that plaintiff’s application for default
20
judgment be granted.
21
BACKGROUND
22
Plaintiff J&J Sports Productions, Inc. is a closed-circuit distributor of sports and
23
entertainment programming. Defendant operates an establishment called “Yolo Gyros and
24
Burgers Sports Bar and Lounge” located on Merkley Avenue in West Sacramento, California.
25
Plaintiff purchased and retains the commercial exhibition licensing rights to “The Moment:
26
Floyd Mayweather v. Marcos Maidana,” which was broadcast on Saturday, May 3, 2014 (“The
27
Program”). Defendant intercepted and exhibited the program in the commercial establishment
28
referred to above without authorization to do so.
1
1
The record reflects that defendant was properly served with process by substituted service
2
on December 24, 2015. Default was entered against defendant February 1, 2016. On March 4,
3
2016, plaintiff filed its motion for default judgment with a proof of service reflecting service of
4
the motion on defendant.
5
LEGAL STANDARDS
6
Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for entry of
7
default judgment. Upon entry of default, the complaint’s factual allegations regarding liability
8
are taken as true, while allegations regarding the amount of damages must be proven. Dundee
9
Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope
10
v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977));
11
see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v.
12
Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
13
Where damages are liquidated, i.e., capable of ascertainment from definite figures
14
contained in documentary evidence or in detailed affidavits, judgment by default may be entered
15
without a damages hearing. Dundee, 722 F.2d at 1323. Unliquidated and punitive damages,
16
however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722
17
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.
18
19
Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir.
20
1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v.
21
McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by
22
the court are (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive
23
claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action; (5) the
24
possibility of a dispute concerning material facts; (6) whether the default was due to excusable
25
neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring
26
decisions on the merits. Eitel, 782 F.2d at 1471-72 (citing 6 Moore’s Federal Practice ¶ 55-05[2],
27
at 55-24 to 55-26).
28
/////
2
1
ANALYSIS
2
I. Whether Default Judgment Should Be Entered
3
The factual allegations of plaintiff’s complaint, taken as true pursuant to the entry of
4
default against defendant, and the affidavits submitted in support of the motion for summary
5
judgment establish the following circumstances: (1) defendant is the owner, operator, licensee,
6
permitee, person in charge, or person with control over the commercial establishment at issue in
7
this action; (2) plaintiff purchased and retains the commercial exhibition licensing rights to the
8
Program; (3) plaintiff entered into sublicensing agreements with various commercial entities by
9
which it granted those entities limited sublicensing rights to exhibit the Program to their patrons
10
within their establishments; (4) as a commercial distributor of sporting events, plaintiff expended
11
substantial monies marketing, advertising, promoting, administering, and transmitting the
12
program to its customers; (5) with full knowledge that the program was not to be intercepted,
13
received, and exhibited by unauthorized entities, defendant exhibited the program and did so
14
willfully and for purposes of commercial or private gain at both locations; and (6) defendant
15
violated either 47 U.S.C. § 553 or 47 U.S.C. § 605.
16
In the motion for default judgment, plaintiff seeks enhanced statutory damages for willful
17
violation of the Communications Act, 47 U.S.C. § 605.1 Under section 605, statutory damages
18
may be awarded between $1,000 and $10,000 for violation of the Federal Communications Act
19
and up to $100,000 when the violation “was committed willfully and for purposes of direct or
20
indirect commercial advantage or financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). Because
21
defendant has not appeared in this action and plaintiff has been precluded from conducting
22
1
23
24
25
26
27
28
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).
3
1
discovery, the precise means of transmission cannot be ascertained. At a minimum, however,
2
plaintiff’s complaint and evidence support a conclusion that defendants intercepted, without
3
authorization, a transmission of the Program and broadcast it to its patrons. Plaintiff should not
4
be prejudiced by defendant’s failure to appear or defend himself in this action and the court
5
concludes, therefore, that statutory damages should be awarded under section 605.
6
After weighing the Eitel factors, the undersigned finds that the material allegations of the
7
complaint support plaintiff’s claims. Plaintiff will be prejudiced if default judgment is denied
8
because plaintiff has no other recourse for recovery of the damages suffered due to the
9
defendants’ failure to pay for the right to exhibit the Program.
10
In light of the entry of default against the defendant, there is no apparent possibility of a
11
dispute concerning the material facts underlying the action. Nor is there any indication that the
12
defendant’s default resulted from excusable neglect, as defendant was properly served with
13
plaintiff’s pleading as well as with plaintiff’s request for entry of default and motion for default
14
judgment. Defendant has had ample notice of plaintiff’s intent to pursue a default judgment
15
against him.
16
Although public policy generally favors the resolution of a case on its merits, the
17
defendants’ failure to make a proper appearance and defend against plaintiff’s claims has made a
18
decision on the merits impossible in this case. Because most of the Eitel factors weigh in
19
plaintiff’s favor, the undersigned, while recognizing the public policy favoring decisions on the
20
merits, will recommend that default judgment be entered against the defaulted defendant.
21
II. Terms of Judgment to Be Entered
22
After determining that entry of default judgment is warranted, the court must next
23
determine the terms of the judgment. Upon consideration of all of plaintiff’s briefing, the
24
undersigned will recommend that damages be awarded but not in the amount requested.
25
By its motion for default judgment, plaintiff seeks a judgment in the total amount of
26
$112,200.00. That sum consists of $110,000 for the violation of Title 47 and $2,200 for the tort
27
of conversion. The undersigned recognizes that defendant was served with plaintiff’s motion for
28
default judgment and was thereby placed on notice of the amount sought by plaintiff. However,
4
1
granting or denying default judgment is within the court’s sound discretion, and one of the factors
2
the court is free to consider in exercising its discretion is the sum of money at stake. See J & J
3
Sports Productions, Inc. v. Betancourt, No. 08cv937 JLS (POR), 2009 WL 3416431, at *3 (S.D.
4
Cal. Oct. 20, 2009).
5
The affidavit of the investigator, Sherri Hokada, establishes that defendant broadcast the
6
program to the bar patrons, that there were twelve televisions in the establishment, that the
7
capacity of the bar was 75 people and that at the time of the broadcast, headcounts were taken
8
three different times showing 22, 39, and 51 patrons. There is no evidence in the record that
9
defendant is a repeat violator. Under these circumstances, the court finds enhanced statutory
10
11
damages should be awarded and that default judgment in the amount of $25,000 is appropriate.
In his declaration in support of the motion for default judgment, counsel indicates that
12
plaintiff also seeks the award of $2,200 in damages for the state law tort of conversion,
13
representing the amount defendant would have paid plaintiff to show the Program lawfully
14
according to the rate card for the event. The undersigned will not recommend an award of
15
damages with respect to plaintiff’s conversion claim. The statutory damages provisions at issue
16
serve not only a deterrent function, see J & J Sports Prods. v. Orellana, No. 08-05468 CW, 2010
17
WL 1576447, at *3 (N.D. Cal. Apr. 19, 2010) (unpublished), but also a compensatory function,
18
which is evidenced by provisions that permit the award of statutory damages or actual damages in
19
a civil action. See 47 U.S.C. § 605(e)(3)(C)(I); 47 U.S.C. § 553(c)(3)(A)(i). Here, the
20
recommended award in the amount of $25,000 sufficiently compensates plaintiff. See J & J
21
Sports Productions, Inc. v. Ferreyra, No. C 08-128 LKK KJM, 2008 WL 4104315, at *1 (E.D.
22
Cal. Aug. 28, 2008) (“Inasmuch as plaintiff seeks statutory damages rather than actual damages,
23
plaintiff’s request for damages for conversion should be denied.”).
24
Finally, although the prayer for relief in the complaint indicates that plaintiff seeks an
25
award of costs and attorney fees, the motion for default judgment does not contain any argument
26
in support of such a request. Moreover, no evidence of costs or attorney fees incurred was
27
submitted to the court in connection with the pending motion. Accordingly, the court will not
28
recommend an award of costs and attorney’s fees.
5
1
2
3
CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that default be entered
against defendant; and
4
IT IS HEREBY RECOMMENDED that:
5
1. Plaintiff’s motion for default judgment (ECF No. 14) be granted;
6
2. Judgment be entered against the defendant Mohammad Wasim Ahmadi d/b/a/ Yolo
7
Gyros and Burgers Sports Bar and Lounge in the sum of $25,000; and
8
3. This case be closed.
9
These findings and recommendations are submitted to the United States District Judge
10
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
11
after being served with these findings and recommendations, any party may file written
12
objections with the court and serve a copy on all parties. Such a document should be captioned
13
“Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections
14
within the specified time may waive the right to appeal the District Court’s order. Martinez v.
15
Ylst, 951 F.2d 1153 (9th Cir. 1991).
16
Dated: March 29, 2016
_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE
17
18
19
20
21
4 j&jsports-ahmadi0941.def
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?