Joe Hand Promotions Inc v. Nguyen et al

Filing 20

ORDER by Judge Lucy H. Koh granting 17 Motion for Default Judgment (lhklc2, COURT STAFF) (Filed on 9/24/2012)

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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

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JOE HAND PROMOTIONS, INC.

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Plaintiff,
v.
QUE THI NGUYEN, et al.,
Defendants.

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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S
MOTION FOR DEFAULT JUDGMENT

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On February 16, 2012, the Clerk of the Court entered default against Defendants Que Thi
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Nguyen, Timothy B. Nguyen, and Thuy Vu, individually and doing business as Anh Duong, after
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Defendants failed to appear or otherwise respond to the Summons and Complaint within the time
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prescribed by the Federal Rules of Civil Procedure. ECF No. 9. Before the Court is Plaintiff Joe
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Hand Promotions, Inc.’s application for default judgment. ECF No. 17. Defendants, not having
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appeared in this action to date, have not filed an opposition. Having read and considered Plaintiff’s
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application, the Court finds this matter appropriate for resolution without oral argument pursuant to
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Civil Local Rule 7-1(b). For the reasons discussed below, the Court GRANTS Plaintiff’s
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application for default judgment. The hearing and case management conference set for September
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27, 2012 are VACATED.
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I. DISCUSSION
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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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Plaintiff is a distributor of sports and entertainment programming, and alleges that it owns

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commercial distribution rights to broadcast the closed-circuit program Ultimate Fighting

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Championship 124: Georges St. Pierre v. Josh Koscheck (the “Program”), originally broadcast

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nationwide on Saturday, December 11, 2010. See Compl. ¶ 11. Plaintiff alleges that the Program

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was unlawfully intercepted and exhibited by Defendants, at Defendants’ commercial establishment

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located in San Jose, California. Id. at ¶ 14. On December 8, 2011, Plaintiff filed this action for

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violation of the Federal Communications Act of 1934, as amended, 47 U.S.C. §605 and 47 U.S.C.

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§553, as well as violations of California law against conversion and California Business and

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Professions Code §17200. In the pending motion for default judgment, however, Plaintiff only

United States District Court
For the Northern District of California

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seeks damages under §605 and for conversion.
Plaintiff requests $10,000.00 in statutory damages for violation of 47 U.S.C.

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§605(e)(3)(C)(i)(II), and $100,000.00 in enhanced damages for willful violation of 47 U.S.C.

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§605(e)(3)(C)(ii). With respect to its conversion claim, Plaintiff seeks $900.00, representing that

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this is the amount Defendants would have been required to pay had Defendants licensed the

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Program from Plaintiff. See Mem. of Points and Authorities in Support of Pl.’s App. for Default

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Judgment by the Court (“Pl. Mem.”) at 20. Once the Clerk of Court enters default, all well-

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pleaded allegations regarding liability are taken as true except as to the amount of damages. See

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Fair Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). Satisfied of its subject matter

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jurisdiction (federal statutes at issue) and personal jurisdiction (Defendants reside and do business

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in this district), the Court shall proceed to review Plaintiff’s motion for default judgment.

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A.

Damages under § 605
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Statutory Damages under Section 605(e)(3)(c)(i)(II)

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Section 605(e)(3)(c)(i)(II) provides that an aggrieved party may recover a sum of not less

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than $1,000 and not more than $10,000 for each violation of §605(a), as the Court considers just.

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“A traditional method of determining statutory damages is to estimate either the loss incurred by

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the plaintiff or the profits made by the defendants.” Joe Hand Promotions v. Kim Thuy Ho, No. C-

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09-01435 RMW (N.D. Cal. Sept. 18, 2009) (citing cases).

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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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Plaintiff has not submitted evidence as to what a properly purchased license would have

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cost. Plaintiff has, however, represented that damages for conversion should be $900.00, which

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Plaintiff represents is “the amount Defendant would have been required to pay had he ordered the

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Program from Plaintiff.” Pl. Mem. at 20. Alternatively, as to potential profits of Defendants,

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Plaintiff submits evidence that three separate head counts, at various times, revealed that the total

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number of patrons was 50, 50, and 50, and that there was no cover charge. See Decl. of Affiant,

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attached to Appl. for Default Judgment. As there is no evidence of how much Defendants made

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during the unlawful exhibition of the Program, and Plaintiff’s representation as to the commercial

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license fee is less than the minimum statutory damages amount, the Court awards the minimum

United States District Court
For the Northern District of California

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statutory damages amount of $1,000.00.
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Enhanced Damages Under Section 605(e)(3)(C)(ii)

Enhanced damages of up to $100,000.00 are available when the violation was committed

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willfully and for the purpose of commercial advantage or private financial gain. See 47 U.S.C.

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§605(e)(3)(C)(ii). In this case, there is no evidence that Defendant advertised the fight, charged a

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cover charge, or had a minimum purchase requirement. According to Plaintiff’s investigator,

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Defendant had nine flat-screen televisions displaying the Program. See Decl. of Affiant at 1.

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Plaintiff also submits that the broadcast was encrypted and subject to distribution rights, and thus

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“Defendants must have undertaken specific wrongful actions to intercept and/or receive and

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broadcast the encrypted telecast.” Pl. Mem. at 9. These facts, taken together with the

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uncontroverted pleadings, do suggest that Defendant acted willfully for commercial advantage and

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private financial gain.

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Plaintiff also argues that these Defendants are repeat offenders, because “one additional

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action has been brought forth against Defendants.” Supp. Decl. of Thomas P. Riley In Support of

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Pl. Mem. (hereafter “Riley Decl.”) at ¶ 4. Plaintiff attaches a printout of a docket to support this

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contention. See Exh. 1 to Riley Decl. The action to which Plaintiff refers, however — Joe Hand

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Promotions, Inc. v. Nguyen et al., No. 5:10-CV-05120-JF — was dismissed voluntarily by Plaintiff

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on February 1, 2011. See ECF No. 11; Exh. 1 to Riley Decl. The fact that Plaintiff has previously

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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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sued then dismissed some of these Defendants does not establish that Defendants are repeat

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offenders.

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Given all these facts, the $100,000.00 maximum damages available are not warranted.

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Courts in the Northern District of California have found relatively modest enhancements proper

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when the case involved a limited number of patrons but the establishment charged a cover charge.

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See, e.g., Garden City Boxing Club, Inc. v. Lan Thu Tran, 2006 U.S. Dist. LEXIS 71116, at *5-6

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(N.D. Cal. Sept. 20, 2006) (Whyte, J.) (awarding $1,000.00 in statutory damages and $5,000.00 in

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enhanced damages when 40 patrons were present and a $10.00 cover charge was imposed). Here,

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there was no cover charge, there were 50 patrons present, and the Program was shown on nine

United States District Court
For the Northern District of California

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televisions. Under these circumstances, the Court views $3,000.00 as a reasonable enhancement.

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Accordingly, the Court finds Plaintiff entitled to $3,000.00 in enhanced damages.

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B.

Damages for Conversion

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Plaintiff also seeks $900.00 in damages for conversion under California Civil Code §3336.

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The elements of conversion are: 1) ownership of a right to possession of property; 2) wrongful

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disposition of the property right of another; and 3) damages. See G.S. Rasmussen & Assoc. v.

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Kalitta Flying Serv., 958 F.2d 896, 906 (9th Cir. 1992). Here, Plaintiff alleges ownership of the

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distribution rights to the Program, misappropriation of those rights by Defendant’s unlawful

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interception, and “severe economic distress and great financial loss.” See Compl. ¶¶ 25-28.

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Damages for conversion are based on the value of the property at the time of conversion. See

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Arizona Power Corp. v. Smith, 119 F.3d 888, 890 (9th Cir. 1941). Plaintiff, however, has

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submitted no evidence whatsoever as to the actual amount of damages sustained, or to the value of

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the property Defendants allegedly converted. The only indication of Plaintiff’s amount of loss is

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Plaintiff’s unsworn statement that the license would have cost $900.00. Pl. Mem. at 20. This

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statement in Plaintiff’s briefing is not evidence. See United States v. Zermeno, 66 F.3d 1058, 1062

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(9th Cir. 1995). Without any evidence as to the loss Plaintiff has sustained, the Court cannot

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determine a reasonable amount of damages. Accordingly, the Court does not award any additional

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damages for conversion.

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II. ORDER
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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT

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For the reasons detailed above, Plaintiff’s application for default judgment is GRANTED.

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Judgment shall be entered in favor of Plaintiff Joe Hand Promotions, Inc. and against Defendants

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Que Thi Nguyen, Timothy B. Nguyen, and Thuy Vu, individually and doing business as Anh

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Duong, in the amount of $4,000 in total damages. The Clerk shall close the file.

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IT IS SO ORDERED.

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Dated: September 24, 2012

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_________________________________
LUCY H. KOH
United States District Judge

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United States District Court
For the Northern District of California

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Case No.: 11-CV-6169-LHK
ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT