J & J Sports Productions, Inc. et al-v-Pedro Salvador Saucedo

Filing 29

Order by Hon. Edward J. Davila granting 20 Motion for Default Judgment.(ejdlc2, COURT STAFF) (Filed on 9/30/2011)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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J & J SPORTS PRODUCTIONS, INC.,
Plaintiff,

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v.
PEDRO SALVADOR SAUCEDO,
Defendant.

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Case No.: 5:10-CV-05131 EJD
ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT

Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) moves for entry of default judgment in

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the amount of $112,200.00 against Defendant Pedro Salvador Saucedo a/k/a Pedro S. Salvador,

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individually and d/b/a/ Mariscos El Pilar De Nayarit (“Defendant”). Plaintiff seeks damages

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stemming from Defendant’s alleged violation of 47 U.S.C. § 605(a) and conversion of Plaintiff's

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property. The court has considered the moving papers and the oral argument of Plaintiff's counsel

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presented at the hearing on September 23, 2011. For the reasons discussed below, the motion will

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be GRANTED.

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I. BACKGROUND
A. Procedural history
Plaintiff filed the instant action on November 12, 2010. After Defendant was served with

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process and failed to respond (Docket No. 9) Plaintiff moved for entry of default and served the

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motion by mail. (Docket No. 15). The clerk entered default on June 9, 2011. (Docket No. 19).

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Plaintiff moved for default judgment on June 21, 2011, and has provided proof of service
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Case No.: 5:10-CV-05131 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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indicating that a copy of the notice and application for default judgment were mailed to Defendant.

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(Docket No. 20). Defendant did not appear at the hearing.

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B. Factual history

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Plaintiff is a distributor of sports and entertainment programming. It purchased the rights to

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broadcast a November 14, 2009 fight between Manny Pacquiao and Miguel Cotto, together with

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undercard bouts, televised replay, and color commentary (collectively, the “Program”). It then

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entered into sublicenses with third parties such as casinos, bars, and social clubs, allowing the

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sublicensees to exhibit the Program to their patrons. The Program was broadcast in interstate

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commerce by means of an encrypted transmission, and only Plaintiff's sublicensees were entitled to

United States District Court
For the Northern District of California

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decrypt that transmission.

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On the day of the broadcast, Nathan Tate (“Tate”), an investigator hired by Plaintiff,

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observed an exhibition of the Program in Mariscos El Pilar De Nayarit. Defendant was not a

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sublicensee entitled to exhibit the Program. Tate entered the premises without paying a cover

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charge and observed the Program on a television. (Decl. of Affiant at 2). Between 9:10 p.m. and

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9:15 p.m., he performed three headcounts, noting the presence of ten, ten, and ten people by each

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respective count. (Id. at 2-3). The declaration indicates the capacity of Mariscos El Pilar De Nayarit

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as seventy-five and that Tate did not observe either a satellite dish or a cable box. (Id. at 2).

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II. DISCUSSION

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Plaintiff seeks $10,000 in statutory damages pursuant to 47 U.S.C. § 605(e)(3)(C)(i)(II),

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$100,000 in enhanced damages pursuant to 47 U.S.C. § 605(e)(3)(C)(ii), and $2,200 in damages

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for conversion. Plaintiff also alleges that Defendant has violated 47 U.S.C. § 553(a), which

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provides for statutory damages pursuant to subsection (c)(3)(A)(ii) and enhanced damages pursuant

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to subsection (c)(3)(B).

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A. Whether to apply 47 U.S.C. § 605 or 47 U.S.C § 553

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“[U]pon default the factual allegations of the complaint, except those relating to the

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amount of damages, will be taken as true.” Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th

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Cir. 1977) (citing Pope v. United States, 323 U.S. 1 (1944); Flaks v. Koegel, 504 F.2d 702, 707 (2d

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Cir. 1974)). Plaintiff seeks damages pursuant to § 605, which “requires proof that a defendant has
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ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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‘(1) intercepted or aided the interception of, and (2) divulged or published, or aided the divulging

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or publishing of, a communication transmitted by the plaintiff.’” California Satellite Systems v.

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Seimon, 767 F.2d 1364, 1366 (9th Cir. 1985) (citing National Subscription Television v. S & H

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TV, 644 F.2d 820, 826 (9th Cir. 1981)). Plaintiff alleges in its complaint that it transmitted the

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Program, that Defendant unlawfully intercepted the Program, and that Defendant exhibited the

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Program. (Compl. ¶¶ 9-13).

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However, § 605 applies only to intercepted “radio” communications or broadcasts through

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the air, such as satellite broadcasts. J & J Sports Productions, Inc. v. Man Thi Doan, No. C-08-

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00324 RMW, 2008 WL 4911223, at *2 (N.D. Cal. Nov. 13, 2008) (citing United States v. Norris,

United States District Court
For the Northern District of California

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88 F.3d 462 (7th Cir. 1996)). The pleadings do not allege that Defendant intercepted a satellite

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broadcast, and Tate does not state that he observed a satellite dish at Mariscos El Pilar De Nayarit.

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(Decl. of Affiant). Plaintiff contends that it has been unable to ascertain whether Defendant utilized

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a satellite dish only because Defendant has refused to answer and appear in the instant case.

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Nonetheless, the Court may not enter default judgment if the factual allegations in the pleadings are

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insufficient to establish liability.

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However, the complaint also asserts a claim under 47 U.S.C. § 553, which “prohibits a

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person from ‘intercept[ing] or receiv[ing] or assist[ing] in intercepting or receiving any

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communications service offered over a cable system.’” Man Thi Doan, 2008 WL 4911223 at *2

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(quoting 47 U.S.C. § 553(a)(1)) (alterations in the original). While Tate does not state that he

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observed a cable box, (Decl. of Affiant), it is undisputed that Defendant intercepted the broadcast

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by some means, and a cable box is hidden more easily than a satellite dish. Accord J & J Sports

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Productions, Inc. v. Guzman et al., 3:08-cv-05469-MHP, 2009 WL 1034218, at *2 (N.D. Cal. April

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16, 2009). Accordingly, Plaintiff's allegations are sufficient for present purposes to establish

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Defendant's liability under § 553(a)(1).

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1. Statutory damages pursuant to 47 U.S.C. § 553(c)(3)(A)(ii)

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An aggrieved party may recover either actual damages pursuant to § 553(c)(3)(A)(i) or

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statutory damages pursuant to § 553(c)(3) (A)(ii). A court may award statutory damages of “not

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less than $250 or more than $10,000 as the court considers just.” 47 U.S.C. § 553(c)(3)(A)(ii).
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Case No.: 5:10-CV-05131 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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While the violation in the instant case does not appear to be particularly egregious, Plaintiff

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requests the statutory maximum. Plaintiff contends that the maximum award against Defendant is

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necessary to deter future violations.

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Plaintiff has presented evidence of the capacity of the establishment as seventy-five. The

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establishment served ten persons during each of Tate's headcounts, and the Program was shown

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only on one television. These factors suggest that maximum damages are unwarranted. The Court

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finds that an award of $250 is sufficient under the circumstances.

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2. Enhanced damages pursuant to 47 U.S.C. § 553(c)(3)(B)

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47 U.S.C. § 553(c)(3)(B) provides that in the case of a willful violation for purposes of

United States District Court
For the Northern District of California

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commercial advantage or private gain, “the court in its discretion may increase the award of

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damages . . . by an amount of not more than $50,000.” Plaintiff alleges that Defendants'

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interception of the program was willful and for purposes of commercial advantage or private gain.

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(Compl. ¶ 13). Facts alleged in the pleadings are binding upon the defaulting party. Geddes, 559

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F.2d at 560.

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However, while Mariscos El Pilar De Nayarit is a commercial establishment, it is not at all

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clear that it is “a business where certain events, such as boxing matches, would be shown to the

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public.” American Cablevision of Queens v. McGinn, 817 F.Supp. 317, 320 (E.D.N.Y.1993). In

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light of the fact that Tate observed only ten people present, the Program was shown on only one

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television, and there was no cover charge, the Court concludes that this is not an appropriate

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situation for the Court to exercise its discretionary authority to impose enhanced damages.

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B. Damages for conversion

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As a result of Defendant's default, the facts alleged in the pleadings are sufficient to

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establish that Defendant wrongfully denied Plaintiff ownership of the right to control the exhibition

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the Program and therefore are sufficient to establish that Defendant is liable for the tort of

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conversion. See Culp v. Signal Van & Storage, 142 Cal. App. 2d Supp. 859, 862 (Cal. App. Dep't

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Super. Ct. 1956). Pursuant to Cal. Civ. Code § 3336, Defendant is liable for the value of the

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property at the time of the conversion. Accordingly, Plaintiff is entitled to recover the sublicensing

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fee of $2,200.
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Case No.: 5:10-CV-05131 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT

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III. CONCLUSION

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Plaintiff's motion is granted. Plaintiff shall recover $250 in statutory damages pursuant to

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47 U.S.C. § 553(c)(3)(A)(ii) and $2,200 pursuant to Cal. Civ. Code § 3336.

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IT IS SO ORDERED.

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Dated:

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_________________________________
EDWARD J. DAVILA
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 5:10-CV-05131 EJD
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT