J & J Sports Productions, Inc. v. Segura
Filing
34
REPORT AND RECOMMENDATIONS to grant Plaintiff's 21 MOTION for Default Judgment as to JESUS SEGURA filed by J & J Sports Productions, Inc., ORDER discharging 26 3/6/18 Order to Show Cause. Objections due by 5/3/2018. Signed by Judge Kandis A. Westmore on 4/19/2018. (kawlc1, COURT STAFF) (Filed on 4/19/2018)
< the possibility of a
dispute concerning material facts[,](6) whether the default was due
to excusable neglect, and (7) the strong policy underlying the
Federal Rules of Civil Procedure favoring a decision on the merits.
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Eitel v. McCool, 782 F. 2d 1470, 1471-72 (9th Cir. 1986) (citation omitted).
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Upon entry of default, all factual allegations within the complaint are accepted as true,
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except those allegations relating to the amount of damages. TeleVideo Sys., Inc. v. Heidenthal, 826
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F.2d 915, 917-18 (9th Cir. 1987). Where a default judgment is granted, the scope of relief “must
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not differ in kind from, or exceed in amount, what is demanded in the pleadings.” Fed. R. Civ. P.
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54(c).
III.
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A.
DISCUSSION
Jurisdiction and Service of Process
In considering whether to enter default judgment, a district court must first determine
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whether it has jurisdiction over the subject matter and the parties to the case. In re Tuli, 172 F.3d
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United States District Court
Northern District of California
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707, 712 (9th Cir. 1999) (“When the entry of judgment is sought against a party who has failed to
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plead or otherwise defend, a district court has an affirmative duty to look into its jurisdiction over
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both the subject matter and the parties.”)
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i.
Subject Matter Jurisdiction
This Court has jurisdiction over this action under 28 U.S.C. §1331, which vests district
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courts with original jurisdiction over piracy matters. 47 U.S.C. §§ 553,605. This Court exercises
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supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367(a); see G & G
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Closed Circuit Events, LLC v. Nguyen, 2010 WL 3749284, *3 (N.D. Cal. Sept. 23, 2010).
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ii.
Personal Jurisdiction
Defendant is the owner and operator of La Selva Taqueria, a California establishment
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operating in Richmond, California. (Compl. ¶ 7.) This is confirmed by California public records.
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(Compl. ¶ 8.) As such the Court may exercise general personal jurisdiction over him. See
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McComb v. Vejar, 2014 WL 5494017, *4 (C.D. Cal. Oct. 28, 2014). In addition, Plaintiff claims
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arise out of Defendant’s specific contacts with the state such that the Court also may exercise
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specific personal jurisdiction. See Id.
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iii.
Venue
Venue is proper, because the Defendant and his establishment are both located in the
district. (Compl. ¶ 4.)
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iv.
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Service of Process
Defendant was served via substituted service at his residence in San Pablo, California, on a
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person of suitable age and discretion. (Dkt. No. 17). This is proper service. Fed. R. Civ. P.
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4(e)(2)(B). A sworn proof of service constitutes “prima facie evidence of valid service which can
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be overcome only by strong and convincing evidence.” Securities & Exchange Comm’n v. Internet
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Solutions for Business, Inc., 509 F.3d 1161, 1166 (9th Cir. 2007) (emphasis added). Accordingly,
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service was proper.
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United States District Court
Northern District of California
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B.
Application to the Case at Bar
Since the Court has jurisdiction in this matter, this Court must turn to the Eitel factors to
determine whether the entering of a default judgment is appropriate in this matter.
i.
Possibility of Prejudice to Plaintiff
Under the first factor, the Court must determine whether Plaintiff will be prejudiced if the
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Court denies its motion for default judgment. Eitel, 782 F.2d at 1471-72. Here, Plaintiff will be
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prejudiced if default is not entered because it has sustained an injury as a result of the actions of
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Defendant and without default judgment, Plaintiff would be left without a judicial resolution to its
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claims and without other recourse for recovery. See Bay Area Painters and Tapers Pension Trust
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Fund v. Ibarra, 2011 WL 6056462 at *4 (N.D.Cal. Nov. 1, 2011).
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Accordingly, this factor weighs in favor of default judgment.
ii.
Merits of Plaintiff’s Substantive Claim and the Sufficiency of the Complaint
The second and third Eitel factors focus on the merits of Plaintiff’s substantive claims and
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the sufficiency of the Complaint. Eitel, 782 F.2d at 1471-72. In order for these factors to weigh in
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Plaintiff’s favor, Plaintiff must assert claims upon which it may recover. See PepsiCo, Inc. v. Cal.
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Sec. Cans, 238 F. Supp. 2d 1172, 1175 (C.D. Cal. 2002).
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1. 47 U.S.C. § 605(a)
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Plaintiff must demonstrate that it has a proprietary interest in the Program and that
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Defendant unlawfully intercepted, received, published, divulged, displayed, and/or exhibited the
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Program at La Selva Taqueria without Plaintiff’s authorization. See 47 U.S.C. § 605(a); 47 U.S.C.
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§ 553(a).1 Section 605(a) provides, in relevant part, “No person not being authorized by the sender
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shall intercept any radio communication and divulge or publish the existence, contents, substance,
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purport, effect, or meaning of such intercepted communication to any person.” 47 U.S.C. § 605(a).
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Although § 605 did not originally address television signal piracy, amendments extended the
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statute’s “reach to the unauthorized reception or interception of television programming.” J & J
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Sports Prods., Inc. v. Thang, 2018 WL 623497, at *3 (E.D. Cal. Jan. 30, 2018) (quoting
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DirecTV, Inc. v. Webb, 545 F.3d 837, 843 (9th Cir. 2008)). Moreover, Ҥ 605 is a strict liability
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statute, so the willfulness of a defendant’s violation is irrelevant to determining liability.” J & J
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Sports Prods., Inc. v. Thang, 2018 WL 623497, at *3 (E.D. Cal. Jan. 30, 2018). Circumstantial
evidence of signal piracy is sufficient to establish a violation of § 605, so a plaintiff need not show
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United States District Court
Northern District of California
10
the direct factual evidence of how signal piracy occurred in a specific case. Webb, 545 F.3d at 844
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(“Signal piracy is by its nature a surreptitious venture and direct evidence of actual interception
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may understandably be hard to come by.”). Here, Plaintiff alleges that it had exclusive nationwide
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commercial distribution rights, that Defendant was not authorized to receive or exhibit the
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Program, and that Defendant exhibited the program for financial gain. (Compl. ¶¶13-22.)
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Plaintiff’s complaint does not specifically allege that a satellite dish was utilized, but he does
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generally allege a violation of § 605, which is the unlawful exhibition of a satellite broadcast.
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(Compl. ¶¶ 19-20; Webb, 545 F.3d at 844.) The private investigator did not note whether the
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Program was transmitted via a satellite dish or via a cable box. (Poblente Decl. at 1.) “Because
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Plaintiff did not allege that Defendant intercepted a satellite transmission in its Complaint, it is not
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a factual allegation that can be taken as true.” J&J Sports Prods., Inc. v. Sergura, 2014 WL
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1618577, at *4 (N.D. Cal. Apr. 21, 2014). By way of supplemental declaration, however, Plaintiff
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provided authenticated photos of multiple satellite dishes affixed to the roof of the restaurant,
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which were taken by the private investigator the day after the Program was broadcast. (2d. Poblete
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Decl.¶ 4, Exs. E & F.)
Accordingly, Plaintiff has sufficiently stated a basis for a claim under § 605.
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Plaintiff may only recover under one section, such that the undersigned will only address why
judgment and damages are appropriate under 47 U.S.C. § 605. (See Mot. at 5.)
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2. Conversion Claim
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To prevail on the conversion claim, Plaintiff must demonstrate ownership or right to
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possession of property, wrongful disposition of the property right by Defendant, and damages.
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G.S. Rasmussen & Assoc. v. Kalitta Flying Serv., 958 F.2d 896, 906 (9th Cir. 1992). Plaintiff has
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properly alleged that it had ownership over the nationwide distribution rights to the Program, it
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was unlawfully intercepted or otherwise exhibited by Defendant, and that Plaintiff sustained
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monetary damages based on the denial of the license fee to which it would have otherwise been
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entitled. (Compl. ¶¶ 28-31.)
Accordingly, Plaintiff properly alleges a conversion claim.
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iii.
The fourth Eitel factor assesses the reasonableness of the potential award if a default
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United States District Court
Northern District of California
Sum of Money at Stake
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judgment is entered. In making this assessment, the Court must take into account the amount of
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money at stake in relation to the seriousness of Defendant’s conduct. Eitel, 782 F.2d at 1471. If
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the sum of money at issue is reasonably proportionate to the harm caused by Defendant’s actions,
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properly documented, and contractually justified, then default judgment is warranted. Bd. of Trs.
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of Cal. Metal Trades v. Pitchometer Propeller, 1997 WL 797922, at *2 (N.D. Cal. Dec. 15,
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1997). A default judgment is only disfavored when a large amount of money is involved or is
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unreasonable in light of Defendant’s actions. Truong Giang Corp. v. Twinstar Tea Corp., 2007
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WL 1545173, at *12 (N.D. Cal. May 29, 2007). In determining if the amount at stake is
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reasonable, the Court may consider Plaintiff’s declarations, calculations, and other documentation
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of damages. Id.
Here, Plaintiff seeks judgment against Defendant in the amount of $5,400 in statutory
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damages and $27,000 in “enhanced” statutory damages, which are reasonable as they are within
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the statutory limits. See e.g. 47 U.S.C. §§ 605(e)(3)(C)(i)(II) and (e)(3)(C)(ii). The amount
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Plaintiff seeks for its conversion count is the value of the property at the time of its conversion.
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Because Plaintiff is an aggrieved party under § 605, Plaintiff is entitled to the damages permissible
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by statute, and thus this factor weighs in favor of default judgment.
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///
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iv.
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Possibility of a Material Factual Dispute
The fifth Eitel factor examines the likelihood of dispute between the parties regarding the
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material facts surrounding the case. Eitel, 782 F.2d at 1471-72. Upon defaulting, the defendant is
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“deemed to have admitted all well-pleaded factual allegations” in the complaint. DirecTV, Inc. v.
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Hoa Huynh, 503 F.3d 847, 851 (9th Cir. 2007) (citations omitted). Here, Plaintiff seeks to recover
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statutory damages in connection the unlawfully exhibition of the Program on two televisions,
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including a 70-plus inch projector screen. (Mot. at 11.) While there are multiple methods of how
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the Program could be unlawfully obtained, the photographic evidence suggests it was via satellite
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dish. (2d. Poblete Decl.¶ 4, Exs. E & F.) Even so, either cable or satellite would have been
unlawful without paying the commercial fee of $1,800, such that the method itself is not a material
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United States District Court
Northern District of California
10
factual dispute. See J & J Sports Prods., Inc. v. Marcaida, 2011 WL 2149923, *2 (N.D.Cal. May
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31, 2011). Thus, there is little likelihood of a dispute concerning the material facts in support of
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Plaintiff’s complaint, such that this factor weighs in favor of default judgment.
v.
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Whether Default Was the Result of Excusable Neglect
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The sixth Eitel factor examines whether any interested party’s failure to respond to
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Plaintiff’s allegations was the result of excusable neglect. Eitel, 782 F.2d at 1471-72. As set forth
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above, Defendant was served at his residence and has not appeared. Thus, there is nothing in the
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record suggesting that any individual’s failure to appear and litigate this matter is based on
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excusable neglect. Shanghai Automation Instrument Co. v. Kuei, 194 F. Supp. 2d 995, 1005 (N.D.
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Cal. 2001) (default after proper service was not excusable neglect). Thus, this factor weighs in
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favor of granting default judgment.
vi.
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The final Eitel factor examines whether the policy of deciding a case based on the merits
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Strong Public Policy Favoring Decisions on the Merits
precludes entry of default judgment. Eitel, 782 F.2d at 1471-72.
Notwithstanding, after an examination of these facts in the aggregate, the undersigned
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finds that Eitel factors one through six outweigh the Federal Rules of Civil Procedure’s preference
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for a decision on the merits, thereby rendering the entry of default judgment proper.
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///
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IV.
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RELIEF SOUGHT
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After entry of default, well-pleaded factual allegations in the complaint are taken as true,
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except as to the amount of damages. Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir.
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2002). To recover damages after securing a default judgment, a plaintiff must prove the relief it
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seeks through testimony or written affidavit. Bd. of Trs. of the Boilermaker Vacation Trust v.
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Skelly, Inc., 389 F. Supp. 2d 1222, 1226 (N.D. Cal. 2005); see Pepsico, Inc., 238 F. Supp. 2d at
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1175 (citing Televideo Sys., Inc., 826 F.2d at 917-18).
A party aggrieved under § 605 may, at its discretion, recover either actual or statutory
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damages. 47 U.S.C. § 605(e)(3)(C). Here, Plaintiff elects to recover statutory damages, and
requests statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II). (Mot. at 8.) The amount of
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United States District Court
Northern District of California
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statutory damages to which Plaintiff is entitled for each violation of this section shall be not less
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than $1,000.00 nor more than $10,000.00. Id. Additionally, Plaintiff requests enhanced damages
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pursuant to section 605(e)(3)(C)(ii), which permits the court, in its discretion, to award up to
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$100,000.00 in additional damages when “the violation was committed willfully and for the
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purposes of direct or indirect commercial advantage or private financial gain . . . .” (Mot. at 7.) In
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making this motion, Plaintiff requests $5,400 in statutory damages and $27,000 in enhanced
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statutory damages, for a total award of $32,400. Id. Plaintiff contends that these awards satisfy the
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dual purposes of compensating Plaintiff and acting as a deterrent against future acts of piracy by
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both this Defendant and others, and also takes into account that Defendant is a repeat offender. Id.
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A.
Congress Considers Piracy To Be Theft And The Statutes Contemplate Both
Specific And General Deterrence.
Congress has equated a violation of the piracy statutes to theft, which
deprives the cable industry of millions of dollars of revenue each
year which it should otherwise be receiving. The Committee
believes that theft of cable service poses a major threat to the
economic viability of cable operators and cable programmers, and
creates unfair burdens on cable subscribers who are forced to
subsidize the benefits that other individuals are getting by receiving
cable service without paying for it.
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Cable Communications Policy Act of 1984, House Report No. 98-934, 5 U.S. Cong. News. ’84
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Bd. Vol. -6, 4655, 4720 (emphasis added). Plaintiff requests that the Court take the purpose of the
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1
legislation into account and recognize that an “award of modest damages does not satisfy the
2
purpose of the legislation.” J & J Sports Prods., Inc. v. Brazilian Paradise, LLC, 789 F.Supp.2d
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669, 676-77 (D.S.C. 2011). Additionally, a primary goal of piracy awards is deterrence and the
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piracy statutes contemplate both specific and general deterrence. Joe Hand Promotions, Inc. v.
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Gamino, 2011 WL 66144, *4 (E.D.Cal. Jan. 10, 2011) (“the amount of damages awarded should
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be in an amount that is adequate to deter these Defendants and others from committing similar acts
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in the future.”)
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B.
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Statutory Damages Under 47 U.S.C. § 605(e)(3)(C)(i)(II) And Enhanced Statutory
Damages Under 47 U.S.C. § 605(e)(3)(C)(ii).
10
The Ninth Circuit has not established a formula for calculating damages under 47 U.S.C. §
United States District Court
Northern District of California
11
605, so the district court retains significant discretion in awarding damages. While some courts
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have looked to the licensing fee to determine an appropriate statutory damages award, Plaintiff
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argues that this method undervalues the Program and fails to adequately compensate Plaintiff. See
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Kingvision Pay-Per-View, Ltd. v. Jasper Grocery, 152 F. Supp. 438, 442 (S.D.N.Y. 2001) (“a
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damage award based exclusively on licensing fees would undercompensate the plaintiff because
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the availability of unauthorized access to the program reduces demand and depresses the prices
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that [plaintiff] can charge for sublicenses.”); see Joe Hand Promotions, Inc. v. Sheedy, 2011 WL
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4089534, *3 (D.S.C. July 29, 2011) (awarding five times the licensing fee as statutory damages).
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In addition, a statutory award based on actual losses ignores the fact that statutory damages
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may be awarded as an alternative to actual damages. See 47 U.S.C. § 605(e)(3)(C)(i). The purpose
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of awarding statutory damages is that actual damages are often difficult to prove. See Lauretex
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Textile Corp. v. Allton Knitting Mills, Inc., 519 F.Supp. 730, 732 (S.D.N.Y. 1981). In the
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copyright context, the Supreme Court opined that statutory damages may be preferable, because to
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simply award actual damages would not deter wrongful conduct. In F.W. Woolworth Co. v.
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Contemporary Arts, Inc., 344 U.S. 228, 233 (1952). Indeed, in the current situation, if the
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infringing party was only awarded actual damaging, he would be encouraged to unlawfully exhibit
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the Program, because the odds of being caught are low. Thus, the Court agrees that an award of
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statutory damages based on a presumed actual loss (the commercial licensing fee) negates the
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purpose of having two separate types of damages available and would not serve to deter
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Defendants and others from unlawfully exhibiting pay-per-view programs.
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i.
Calculation of the Statutory Damages Award
The Program carried a commercial licensing fee of $1,800. (Gagliardi Decl. ¶ 8.) As a
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result, Plaintiff requests $5,400 in statutory damages, which is three times the commercial
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licensing fee. See Sheedy, 2011 WL 4089534 at *3 (awarding five times the licensing fee as
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statutory damages).
8
On September 17, 2016, investigator Poblete observed the unlawful exhibition of the
Program at La Selva Taqueria. (Poblete Decl. at 1.) Mr. Poblete observed the undercard bout
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between William Monroe, Jr. and Gabriel Rosado, which was part of the Program. (Gagliardi
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United States District Court
Northern District of California
9
Decl. ¶ 7.) The Program was displayed on two televisions, including a 70+” projection screen, and
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there were between 28-34 patrons present. (Poblete Decl. at 2.)
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Given Defendant’s status as a repeat offender, the undersigned recommends that the three
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times multiplier suggested by Plaintiff be used, such that $5,400.00 in statutory be damages be
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awarded. See J & J Sports Prods., Inc. v. Tonita Restaurant, LLC, 2015 WL 9462975, *5, n.8
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(E.D.Ky. Dec. 28, 2015) (“a treble award, as Plaintiff suggests, [is] appropriate here. Unlawful
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access must cost a violator more than face ticket price”).
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ii.
Plaintiff should also be awarded enhanced statutory damages.
At least two piracy judgments have been entered against Defendant. See J&J Sports
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Prods., Inc. v. Sergura, No. C 12-01702 JSW, 2014 WL 1618577 (N.D. Cal. Apr. 21,
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2014)($4,800 in damages). Most recently, on April 17, 2015, and Plaintiff was awarded $3,000 in
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statutory damages, $6,000 in enhanced damages, and $2,200 in conversion damages, for a total of
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$11,200. Order Adopting R. & R. Granting in Part and Den. in Part Mot. for Default J., J & J
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Sports Prods., Inc. v. Segura, Case No. 14-cv-03954-JSW (N.D. Cal. April 17, 2015), ECF No.
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22; Judgment, Case No. 14-cv-03954-JSW (N.D. Cal. April 17, 2015), ECF No. 23. Both
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judgments were entered prior to the date of the broadcast at issue, such that there is no question
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that Defendant was on notice of the unlawful nature of his behavior.
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In light of Defendant’s affirmative misconduct, repeat offender status, and in order to deter
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1
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future willful violations, the Court recommends Plaintiff be awarded enhanced damages.
Plaintiff contends that Defendant acted willfully and for the purpose of financial gain,
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such that enhanced statutory damages are appropriate. (Mot. at 12.) Enhanced statutory damages
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may be awarded when “the violation was committed willfully and for purposes of commercial
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advantage or private financial gain[.]”47 U.S.C. § 605(e)(3)(C)(ii). First, there is evidence of a
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prior violation, and a prior violation is a hallmark consideration of enhanced statutory damages.
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See G & G Closed Circuit Events, LLC v. Saddeldin, 2010 WL 3036455, at *4 (E.D.Cal. Aug. 2,
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2010)(court recommended $30,000 in enhanced statutory damages be awarded against a repeat
9
offender).
10
Moreover, Plaintiff argues that the broadcast of the pirated material acts as a draw for
United States District Court
Northern District of California
11
customers, such that willfulness and the purpose of commercial advantage is established. (Mot. at
12
12.) Plaintiff cites to Ellison v. Robertson, 357 F.3d 1072 (9th Cir. 2004), which, while
13
addressing a different legal issue, is instructive. Id. at 12-13. In Ellison, the Ninth Circuit held that
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the draw for customers need not be substantial to satisfy the financial benefit element for
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vicarious liability. 357 F.3d at 1078-79; see also Joe Hand Promotions, Inc. v. Wing Spot Chicken
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& Waffles, Inc., 920 F. Supp. 2d 659, 668-69 (E.D. Va. 2013)(Defendant’s showing of the
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exhibition on all of its televisions to approximately forty patrons at no cost was sufficient to find
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that the defendant acted willfully for commercial advantage and private financial gain). District
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courts have found that as few as eight persons present constituted a draw sufficient to award the
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maximum statutory damages of $10,000, and an enhanced damages award of $20,000. J & J
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Sports Prods., Inc. v. Tilakamonkul, 2011 WL 2414550, at *3, 5 (E.D. Cal. June 10, 2011),
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adopted, Order Adopting Findings and Recommendations in Full, J & J Sports Prods., Inc. v.
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Tilakamonkul 1:10-cv-01705-AWI-GSA (Jul. 1, 2011), ECF No. 21.
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Here, there were 28-34 patrons at the establishment compared to eight patrons in
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Tilakamonkul, and the Program was shown on two televisions, as opposed to one in Tilakamonkul.
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(Mot. at 14.) Additionally, unlike in Tilakamonkul, there are at least two prior judgment against
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Defendant for the same unlawful activity.
28
Since Mr. Riley opted to send an attorney who was not knowledgeable in his stead,
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Plaintiff was unable to explain why $27,000 in enhanced statutory damages was appropriate.
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Absent the benefit of such an explanation, the undersigned finds that, while Defendant is a repeat
3
offender who was apparently undeterred by the most recent judgment of $11,200, the $27,000
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sought by Plaintiff is excessive. Instead, the undersigned recommends that the enhanced damages
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award be reduced to $12,000, which represents twice the amount of enhanced damages awarded in
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2015. See Order Adopting R. & R. Granting in Part and Den. in Part Mot. for Default J., J & J
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Sports Prods., Inc. v. Segura, Case No. 14-cv-03954-JSW (N.D. Cal. April 17, 2015), ECF No. 22
8
at 1.
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C.
Plaintiff is entitled to damages for conversion,
Damages for conversion are based on the value of the property at the time of the
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United States District Court
Northern District of California
11
conversion. Cal. Civ. Code § 3336. Plaintiff requests $1,800 in conversion damages, which is the
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amount Defendant would have paid to broadcast the Program lawfully. (Mot. at 14-15; Gagliardi
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Decl. ¶ 8.) The Court may award conversion damages in addition to statutory damages, and courts
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in this district have done so, including against Defendant Segura. See also J & J Sports Prods.,
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Inc. v. Paolilli, 2011 WL 6211905, *4 (E.D. Cal., Dec. 14, 2011). Thus, the undersigned
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recommends that Plaintiff be awarded $1,800 in damages for conversion.
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D.
Plaintiff is entitled to costs and reasonable attorneys’ fees.
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47 U.S.C. § 605 mandates an award of costs and attorneys’ fees to an aggrieved party.
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Specifically, the section states that the court, “shall direct the recovery of full costs, including
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awarding reasonable attorneys’ fees to an aggrieved party who prevails.” 47 U.S.C. §
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605(e)(3)(B)(iii) (emphasis added). “[T]he term ‘any person aggrieved’ shall include any person
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with proprietary rights in the intercepted communication by wire or radio[.]” 47 U.S.C. §
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605(d)(6). Here, Plaintiff had the exclusive nationwide distribution rights to the Program,
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rendering it a “person aggrieved” within the meaning of 47 U.S.C. § 605.
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In its supplemental brief, Plaintiff seeks $4,609.00 in attorneys’ fees and $1,329.23 in
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costs. (Dkt. No. 28 at 5.)
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i.
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Attorneys’ Fees
The lodestar is the presumptive method for calculating attorneys’ fees under federal
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1
statutes. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Intel Corp. v. Terabyte Intern., Inc.,
2
6 F.3d 614, 622 (9th Cir. 1993). The lodestar calculates the number of hours reasonably spent on a
3
project multiplied by a reasonable rate. Hensley, 461 U.S. at 433. The lodestar method has
4
specifically been applied in calculating attorneys’ fees under 47 U.S.C. § 605. See Directv, Inc. v.
5
Atwal, 2005 WL 1388649 (E.D.Cal. June 8, 2005).
6
Plaintiff seeks to recover $4,609.00 in attorneys’ fees, which comprises 10.1 hours of
7
attorney time, billed at rates of $300.00 and $500.00 per hour; and 9.59 hours at $100 per hour for
8
administrative assistant time. (Decl. of Thomas P. Riley Regarding Attorneys’ Fees and Costs,
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“Riley Fees Decl.,” Dkt. No. 28-1, Ex. 1.)
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Thomas P. Riley has been practicing law for more than 25 years. (Riley Fees Decl. ¶ 3.)
United States District Court
Northern District of California
11
His firm specializes in the civil prosecution of commercial signal piracy claims on behalf of
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promotors and closed-circuit distributers of major televised sporting events, and has done so since
13
1994. (Riley Fees Decl. ¶ 4.) Mr. Riley’s billing rate is $500.00 per hour, and he billed a total of
14
3.1 hours, for a total of $1,550.00. (Riley Fees Decl. ¶ 5, Ex. 1.) The Court notes that, in 2011,
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Mr. Riley’s billing rate of $450.00 per hour was found to be reasonable. See Joe Hand
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Promotions, Inc. v. Piacente, 2011 WL 2111467, *8 (N.D.Cal. April 11, 2011); Joe Hand
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Promotions, Inc. v. Piacente, 10-cv-03429-CW (N.D. Cal., Feb. 24, 2011), ECF No. 22 ($450.00
18
hourly billing rate). Thus, the Court finds that the hourly rate requested is reasonable and that the
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number of hours counsel spent litigating this action is reasonable
20
Plaintiff failed to provide information to substantiate the billing rates for the firm’s
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research attorney, who billed at $300.00 per hour, and the administrative assistant, who billed at
22
$100.00 per hour. This was after Plaintiff was given the opportunity to file a supplemental brief,
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because the request for attorneys’ fees and costs was not included in the motion for default
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judgment. (See Dkt. No. 25.) Even then, Plaintiff did not timely file the supplemental brief, and
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the undersigned issued an order to show cause before the supplemental brief was filed. (See Dkt.
26
No. 26.) Furthermore, Mr. Riley did not appear at the hearing, so the Court is even more
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disinclined to permit additional supplemental briefing in support of Plaintiff’s motion for
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attorney’s fees and costs. Thus, the Court recommends that the district court decline to award fees
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for the unsubstantiated work performed.
Accordingly, the undersigned recommends that Plaintiff be awarded $1,550.00 in
attorneys’ fees.
ii.
Costs
Under Civil Local Rule 54-3, an award of costs may include the clerk's filing fee and fees
6
for service of process “to the extent reasonably required and actually incurred.” Plaintiff has
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submitted evidence that counsel incurred $525.00 in investigative costs incurred in this matter
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prior to the initiation of the action, $400.00 in filing fees, $140.00 to serve Defendant with the
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complaint, $94.32 in courier fees, and $170.00 to serve Defendant with what appears to have been
10
United States District Court
Northern District of California
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the motion for default judgment. (Riley Fees Decl., Ex. 1.)
Plaintiff argues that it is entitled to recover investigative costs, and cites J & J Sports
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Prods., Inc. v. Mosley, in which a court in this district awarded pre-filing investigative costs. 2011
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WL 2066713, *7 (N.D. Cal. Apr. 13, 2011). The undersigned agrees. Notwithstanding, the
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undersigned declines to recommend that Plaintiff recover the $170.00 spent in connection with
15
whatever documents were served on March 1, 2018, because, while Plaintiff was ordered to serve
16
Defendant with a copy of the undersigned’s February 20, 2018, that could have been accomplished
17
by U.S. Mail, which would have been far less costly. (See Dkt. No. 25 at 2.)
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Accordingly, the $600.00 in investigative costs, $400.00 in court filing fees and $140.00
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for service of the complaint, and $94.32 in courier fees, totaling $1,159.23, are allowable and the
20
undersigned recommends that they be awarded.
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V.
CONCLUSION
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In light of the foregoing, the undersigned RECOMMENDS that Plaintiff’s motion for
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default judgement be GRANTED. Specifically, the Court RECOMMENDS that judgment be
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entered in the amount of $21,909.23 against Defendant as follows:
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a. For the Violation of Title 47 U.S.C. § 605(e)(3)(C)(i)(II): $5,400.00;
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b. For the Violation of Title 47 U.S.C. § 605(e)(3)(C)(ii): $12,000.00 ;
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c. For the Tort of Conversion: $1,800.00;
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d. Attorneys’ Fees: $1,550.00
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1
e. Costs: $1,159.23
2
Any party may file objections to this report and recommendation with the district judge
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within 14 days of being served with a copy. See 28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b); N.D.
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Civil L.R. 72-3. The parties are advised that failure to file objections within the specified time
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may waive the right to appeal the District Court's order. IBEW Local 595 Trust Funds v. ACS
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Controls Corp., No. C-10-5568, 2011 WL 1496056, at *3 (N.D. Cal. Apr. 20, 2011).
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Plaintiff shall serve a copy of this report and recommendation on Defendant by U.S. Mail
and file a certificate of service.
IT IS SO RECOMMENDED.
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United States District Court
Northern District of California
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ORDER DISCHARGING ORDER TO SHOW CAUSE
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On March 6, 2018, the undersigned issued an order to show to Plaintiff why the motion
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should not be denied based on Plaintiff’s failure to comply with the Court’s February 20, 2018
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order, and ordered Plaintiff to file any supplemental briefing and supporting declaration(s)
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pertaining to its request for attorneys’ fees and costs. (Dkt. No. 26 at 1.) On March 16, 2018,
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Plaintiff timely filed all documents as ordered. Accordingly, the March 6, 2018 order to show
17
cause is DISCHARGED.
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IT IS SO ORDERED.
Dated: April 19, 2018
__________________________________
KANDIS A. WESTMORE
United States Magistrate Judge
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