Joe Hand Promotions, Inc. v. Lu et al

Filing 18

ORDER by Judge Charles R. Breyer granting 14 Motion for Default Judgment. (crblc1, COURT STAFF) (Filed on 10/18/2010)

Joe Hand Promotions, Inc. v. Lu et al

Doc. 18

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

JOE HAND PROMOTIONS, INC., Plaintiff, v. HUNG VI LU, et al. Defendants. /

No. C 10-02059 CRB ORDER GRANTING DEFAULT JUDGMENT

Now before the Court is Plaintiff Joe Hand Promotions. Inc.'s motion for a default judgment. Having carefully reviewed the papers submitted by Plaintiff, the Court concludes pursuant to Local Rule 7-1(b) that oral argument is unnecessary. Plaintiff's motion for default judgment is hereby GRANTED. BACKGROUND Plaintiff purchased the domestic commercial exhibition rights to broadcast the "Ultimate Fighting Championship 98: Rashad Evans v. Lyoto Machida" telecast ("the program") nationwide on Saturday, May 23, 2009. Cmplt at ¶ 10. Commercial establishments could receive and broadcast the program only after entering into a sublicensing agreement with Plaintiff. Id. at ¶ 11. Defendants Hung Vi Lu and Vay Voong are the owners of the After Dark Bar & Lounge in San Leandro, California. Id. at ¶¶ 7-8. Plaintiff alleges that Defendants unlawfully intercepted the program and showed it at their sports bar to an audience of

Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

between five and seven patrons who had not paid a cover charge. Id. at ¶ 13; Declaration of Affiant. Plaintiff alleges that Defendants did so willfully and for the purpose of commercial advantage and/or private financial gain. Cmplt at ¶ 14. Plaintiff filed its complaint on May 14, 2010, and Defendants were served with summons and the complaint shortly thereafter. Defendants did not answer the complaint, and so on September 2, 2010 the Court entered default against Defendants. Plaintiff subsequently filed an Application for Default Judgment. As of the date of this Order, Defendants have not answered the complaint, responded to the Application, or otherwise appeared in the case. Plaintiff's complaint includes causes of action for (1) violation of the Federal Communications Act of 1934, 47 U.S.C. § 605, (2) violation of the Cable & Television Consumer Protection and Competition Act of 1992, 47 U.S.C. § 553, (3) conversion, and (4) violation of California Business and Professions Code § 17200. Cmplt at ¶¶ 9-37. Plaintiff's Application seeks damages only for the violation of section 605 and for conversion. App. at 5-15. ANALYSIS I. Personal and Subject Matter Jurisdiction In determining whether to enter a default judgment, a court has "an affirmative duty to look into its jurisdiction over both the subject matter and the parties." In re Tuli, 172 F.3d 707, 712 (9th Cir. 1999) ("To avoid entering a default judgment that can later be successfully attacked as void, a court should determine whether it has the power, i.e., the jurisdiction, to enter the judgment in the first place."). Because the Defendants are residents of California, the Court may exercise personal jurisdiction. In addition, the Court has subject matter jurisdiction because Plaintiff's claims arise under the Federal Communications Act of 1934, 47 U.S.C. § 605. II. Damages Whether to grant a motion for the entry of a default judgment is within the discretion of the trial court. See Lau Ah Yew v. Dulles, 236 F.2d 415, 416 (9th Cir. 1956). Generally,
2

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

upon an entry of default, the factual allegations of the plaintiff's complaint will be taken as true, except those relating to the amount of damages. See Derek Andrew, Inc. v. Poof Apparel Corp., 528 F.3d 696, 702 (9th Cir. 2008). A. Section 605

The Federal Communications Act, 47 U.S.C. § 605, prohibits commercial establishments from intercepting and broadcasting to its patrons satellite cable programming. See That's Entertainment, Inc. v. J.P.T., Inc., 843 F. Supp. 995, 998 (D. Md. 1993). The Act allows an aggrieved party to bring a civil action in federal district court and permits that party to elect an award of either statutory or actual damages. See 47 U.S.C. § 605(e)(3)(C)(i). The statute allows a court to award between $1,000 and $10,000 for each violation of section 605 as it considers just. See 47 U.S.C. § 605(e)(3)(C)(i)(II). The court may enhance its award by not more than $100,000 when the violation has been "committed willfully and for purposes of direct or indirect commercial advantage or private financial gain." 47 U.S.C. § 605(e)(3)(C)(ii). Plaintiff's Application urged the Court to impose statutory damages of $10,000 plus "substantial" enhanced damages, arguing that courts in their discretion have imposed enhanced damages of between $5,000 and (quite rarely) $100,000 in comparable piracy cases, and that nominal damages have proven ineffective deterrents. See App. at 9-14. Plaintiffs subsequently filed a Supplemental Declaration, alerting the Court to a second piracy case against Defendants, J & J Sports Prods., Inc. v. Lu, case no. 10-01872-SI, and asserting that "[i]n view of the fact that the Defendants are multiple offenders," an award of $110,000 under section 650 is now warranted. See Supp. Riley Decl. at ¶¶ 4-6. First, the Court notes that J & J Sports Prods., Inc. v. Lu, case no. 10-01872-SI, is an ongoing case, in which Defendants have both appeared and contested their liability. See dckt. no. 12 (Answer, asserting twelve affirmative defenses). That case is still pending. Thus, the Court cannot conclude, as Plaintiff does, that Defendants are "multiple offenders." Second, "[i]n the absence of unusual or particularly egregious circumstances under which a defendant broadcast the fight," the Court will not award the statutory maximum in
3

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

damages. See J & J Sports Prods., Inc. v. Cortes, 2009 WL 801554 at *3 (N.D. Cal. Mar. 25, 2009) (citing Don King Prods., Inc. v. Maldonado, 1998 WL 879683 (N.D. Cal. 1998). This case is neither unusual nor egregious. See App. at 14 ("there are hundreds of these types of cases throughout the nation"). This case therefore appears to be similar to several other single violation cases in this district. In Joe Hand Promotions, Inc. v. Dailey, 2003 WL 1342998 at *3 (N.D. Cal. Mar. 13, 2003), in which a pirated program was shown to 50 people at a bar and plaintiff had not established that defendant had used the program to attract customers, this Court awarded plaintiff $2,000 in damages for the violation plus a $5,000 enhancement. In Joe Hand Promotions, Inc. v. Pete, 1999 WL 638215 at *2 (N.D. Cal. Aug. 17, 1999), in which there were only eight patrons present at the time of the violation, this Court awarded plaintiff $1,000 in damages for the violation plus a $5,000 enhancement. In Cortes, 2009 WL 801554 at *3, in which a pirated program was shown to 25 patrons, this Court awarded plaintiff $2,000 in damages for the violation plus a $6,000 enhancement. In Joe Hand Productions, Inc. v. Ho, 2009 WL 3047231 at *1-2 (N.D. Cal. Sept. 18, 2009), in which there were 17 patrons present at the time of the violation, this Court awarded plaintiff $1,000 in damages for the violation and noted that "[c]ourts in this district[] have found an enhancement award of $5,000 proper where there was a modest number of patrons and a cover charge was imposed." Though no cover charge was imposed in that case, this Court awarded enhanced damages of $5,000. Accordingly, and in light of the mere five to seven patrons present at the time of the violation and the lack of a cover charge, the Court awards Plaintiff $1,000 in damages for the violation plus enhanced damages of $6,000. B. Conversion

Plaintiff also requests default judgment on its state law claim of conversion. Under California law, conversion has three elements: (1) ownership of a right to possession of property; (2) wrongful disposition of the property right; and (3) damages. See G.S. Rasmussen & Assoc., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir. 1992).
4

1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

Plaintiff's well-pleaded allegations of liability, taken as true in light of Defendants' default, are sufficient to entitle Plaintiff to damages. See J&J Sports Prod., Inc. v. Ho, 2010 WL 3912179 at *2 (N.D. Cal. Oct. 5, 2010). Plaintiff has thus alleged ownership of the commercial exhibition rights, misappropriation of those rights by Defendants, and damages. Damages for conversion are typically based on the value of the property at the time of conversion. See Krueger v. Bank of America, 145 Cal. App. 3d 204, 215 (1983). Plaintiff is therefore entitled to $925 in conversion damages, representing the amount Defendants would have been required to pay had they ordered the program from Plaintiff. See App. at 14, n.5; Riley Decl. at ¶ 7 CONCLUSION For the foregoing reasons, Plaintiff's Application for Default Judgment is GRANTED in the total amount of $7,925. This amount consists of $1,000 in statutory damages and $6,000 in enhanced damages for the section 605 claim, and $925 for conversion. IT IS SO ORDERED.

Dated: October 18, 2010

CHARLES R. BREYER UNITED STATES DISTRICT JUDGE

G:\CRBALL\2010\2059\order granting default.wpd

5