Joe Hand Promotions Inc v. Nguyen

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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United States District Court
For the Northern District of California

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SAN JOSE DIVISION
JOE HAND PROMOTIONS, INC.,
Plaintiff,
v.
VAN T. NGUYEN,
Defendant.

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Case No.: 5:10-CV-05856 EJD
ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT

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Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”) moves for entry of default judgment in the

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amount of $111,100.00 against Defendant Van Nguyen a/k/a Bich T. Nguyen, individually and

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d/b/a Got Hong (“Defendant”). Plaintiff seeks damages stemming from Defendant’s alleged

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violation of 47 U.S.C. § 605(a) and conversion of Plaintiff's property. The court has considered the

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moving papers and the oral argument of Plaintiff's counsel presented at the hearing on September

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23, 2011. For the reasons discussed below, the motion will be GRANTED.

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I. BACKGROUND
A. Procedural history

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Plaintiff filed the instant action on December 23, 2010. After Defendant was served with

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process and failed to respond (Docket No. 11) Plaintiff moved for entry of default and served the

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motion by mail. (Docket No. 12). The clerk entered default on April 27, 2011. (Docket No. 13).

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Plaintiff moved for default judgment on June 16, 2011, and has provided proof of service
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Case No.: 5:10-CV-05856 EJD
SCHEDULING ORDER

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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 January 2, 2010 fight between Rashad Evans and Thiago Silva, together with undercard

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

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sublicenses with third parties such as casinos, bars, and social clubs, allowing the sublicensees to

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exhibit the Program to their patrons. The Program was broadcast in interstate commerce by means

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of an encrypted transmission, and only Plaintiff's sublicensees were entitled to decrypt that

United States District Court
For the Northern District of California

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transmission.
On the day of the broadcast, Jeff Kaplan (“Kaplan”), an investigator hired by Plaintiff,

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observed an exhibition of the Program in Got Hong. Defendant was not a sublicensee entitled to

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exhibit the Program. Kaplan entered the premises without paying a cover charge and observed the

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Program on four televisions. (Decl. of Affiant at 2). Between 8:45 p.m. and 9:15 p.m., he

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performed three headcounts, noting the presence of twenty-three, thirty, and thirty-one people by

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each respective count. (Id. at 3). The declaration indicates the capacity of Got Hong as sixty and

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did not state whether Kaplan observed either a satellite dish or a cable box. (Id.)

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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 $1,100 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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Case No.: 5:10-CV-05856 EJD
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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 Kaplan does not state that he observed a satellite dish at Got Hong. (Decl. of

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Affiant). Plaintiff contends that it has been unable to ascertain whether Defendant utilized a

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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 Kaplan 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 less

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than $250 or more than $10,000 as the court considers just.” 47 U.S.C. § 553(c)(3)(A)(ii). While
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Case No.: 5:10-CV-05856 EJD
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the violation in the instant case does not appear to be particularly egregious, Plaintiff requests the

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statutory maximum. Plaintiff contends that the maximum award against Defendant is necessary to

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deter future violations.

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Plaintiff has presented evidence of the capacity of the establishment as sixty. The

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establishment served twenty-three, thirty, and thirty-one persons during Kaplan’s headcounts, and

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the Program was shown on four televisions. These factors suggest that maximum damages are

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unwarranted. The Court finds that an award of $5,000 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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“Courts in this district have considered several cases involving pirating of closed-circuit

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sports broadcasts and, absent a showing of egregious wrongdoing, generally have awarded

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damages slightly over the statutory minimum.” J & J Sports Productions, Inc. v. Basto, et al., No. C

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10-1803, 2011 WL 566843, at 2 (N.D.Cal. Feb. 14, 2011) (citing Universal Sports Network v.

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Jimenez, 2002 WL 31109707, at *1 (N.D.Cal. Sept.18, 2002)). Although Plaintiff has brought to

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the attention of the court another case pending in which similar conduct is alleged, that case was

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filed after the events at issue in this action and therefore is not particularly probative of the

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Defendant’s wilfulness or purpose during the events at issue here. Additionally, in light of the fact

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that there was no cover charge and the establishment was filled to only half-capacity, the record is

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unclear whether Defendant made a profit. Thus, 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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Case No.: 5:10-CV-05856 EJD
SCHEDULING ORDER

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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 $1,100.

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III. CONCLUSION
Plaintiff's motion is granted in part. Plaintiff shall recover $5,000 in statutory damages

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pursuant to 47 U.S.C. § 553(c)(3)(A)(ii) and $1,100 pursuant to Cal. Civ. Code § 3336.

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IT IS SO ORDERED.

United States District Court
For the Northern District of California

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Dated: September 30, 2011

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_________________________________
EDWARD J. DAVILA
United States District Judge

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Case No.: 5:10-CV-05856 EJD
SCHEDULING ORDER

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