J & J Sports Productions, Inc v. Sanchez et al

Filing 16

ORDER Granting 11 Motion for Default Judgment in the amount of $9,200 against Defendants Mark Anthony Sanchez and Raul Sanchez, Jr., d/b/a Tacos & Beer. Plaintiff's request for attorneys' fees is denied without prejudice. Signed by Judge Roger T. Benitez on 10/24/2011. (knb)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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J & J SPORTS PRODUCTIONS, INC.,

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CASE NO. 10cv2323 BEN (NLS)

Plaintiff,

ORDER GRANTING DEFAULT
JUDGMENT

vs.
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[Dkt. No. 11]

DIEGA SANCHEZ, et. al.,
Defendants.

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INTRODUCTION

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Plaintiff J & J Sports Productions, Inc. moves for default judgment against Defendants Mark

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Anthony Sanchez and Raul Sanchez, Jr., individually and d/b/a Tacos & Beer Sports Bar.1 (Dkt. No.

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11.) Plaintiff brought this action against Defendants for the unlawful exhibition of the Manny

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Pacquiao v. Miguel Cotto fight and associated under-card (“Program”) at Tacos & Beer on

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November 14, 2009. (Compl. ¶ 14.) For the reasons set forth below, the Court GRANTS Plaintiff’s

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motion for default judgment.
BACKGROUND

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Plaintiff is a distributor of sports and entertainment programming that purchased the

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commercial rights to broadcast the Program. (Compl. ¶ 11.) Plaintiff entered into agreements with

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sub-licensees to broadcast the Program for a license fee. (Compl. ¶ 12.) Defendants were not

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authorized to broadcast the Program, but an investigator observed and later documented in a sworn

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affidavit the unlawful exhibition of the Program at Tacos & Beer on November 14, 2009. (Aff.. of

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Plaintiff voluntarily dismissed Defendant Diega Sanchez on August 30, 2011.
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Frank Britton in Support of Plaintiff’s Application for Default Judgment (“Britton Aff.”).) The

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investigator documented seven televisions broadcasting the Program and capacity for approximately

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150 patrons with 120-140 patrons present. (Id.) No cover charge was being imposed for admission.

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(Id.)

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Plaintiff filed the Complaint against Defendants on November 10, 2010 and served Defendant

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Mark Anthony Sanchez with the Summons and Complaint by substitute service on March 30, 2011

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at his residence. (Dkt. No. 5.) Plaintiff personally served Defendant Raul Sanchez, Jr., with the

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Summons and Complaint on April 8, 2011. (Dkt. No 6.) No answer was filed. Plaintiff moved for

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entry of default by the Clerk on July 15, 2011, and the Clerk filed the Entry of Default on the same

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day. (Dkt. Nos. 9-10.) Nothing in the record before the Court indicates that Defendants have ever

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made any appearance in this action. Plaintiff seeks default judgment against Defendants, statutory

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damages of $110,000 under 47 U.S.C. § 605, and $4,200 in damages for conversion.

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DISCUSSION
I.

Default Judgment

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Once default has been entered by the clerk, it is within the district court’s discretion to grant

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default judgment against that party. FED . R. CIV . P. 55(b)(2); Eitel v. McCool, 782 F.2d 1470, 1471

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(9th Cir. 1986). When considering default judgment, “the factual allegations of the complaint,

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except those relating to the amount of damages, will be take as true.” Televideo Sys., Inc. v.

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Heidenthal, 826 F.2d 915, 917 (9th Cir. 1987) (citations omitted); see also FED . R. CIV . P. 8(b)(6)

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(“[a]n allegation — other than one relating to the amount of damages — is admitted if a responsive

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pleading is required and the allegation is not denied”).

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The Court may consider the factors articulated in Eitel v. McCool when determining whether

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to grant default judgment: “(1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s

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substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake in the action;

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(5) the possibility of a dispute concerning material facts; (6) whether the default was due to excusable

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neglect; and (7) the strong policy . . . favoring decisions on the merits.” 782 F.2d at 1471-72.

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All the Eitel factors weigh in favor of granting default judgment. Section 605 prohibits the

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unauthorized receipt of satellite signals. 47 U.S.C. § 605(a); DirecTV, Inc. v. Webb, 545 F.3d 837,
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844 (9th Cir. 2008). Conversion requires ownership or a right to possession of property, wrongful

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disposition of that right, and damages. G.S. Rasmussen & Assocs. v. Kalitta Flying Serv., 958 F.2d

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896, 906 (9th Cir. 1992). Plaintiff’s Complaint alleges that Plaintiff owned the rights to the Program

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and Defendants intercepted, received, and exhibited the Program in violation of § 605. (Compl. ¶¶

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11, 14, 16.) Additionally, the Complaint alleges that Plaintiff suffered financial loss as a result of

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this conduct. (Compl. ¶ 27.) Taking these allegations to be true, as the Court must, the Complaint

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supports Plaintiff’s claim for violation of § 605 and for conversion. And, because Plaintiff has

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sufficiently plead the claims asserted and offered a sworn affidavit from the investigator who

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observed and documented Defendants’ violation, dispute as to material facts is unlikely.

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Additionally, Plaintiff will be prejudiced if default judgment is not entered because if the Court

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denies the motion, Plaintiff has no other means to recover from Defendants. There is nothing before

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the Court that would suggest the lack of response from Defendants was the result of excusable neglect.

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The sum of money at stake is not substantial. And finally, while there is a strong policy favoring

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disposition on the merits, that option is not available where, as here, defendants have failed to appear.

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See PepsiCo. Inc. v. Cal Sec. Cans, 238 F. Supp. 2d 1172, 1177 (C.D. Cal. 2002). Because all of the

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Eitel factors weigh in favor of granting default judgment, the Court GRANTS Plaintiff’s motion for

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default judgment against Defendants.

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II.

Damages

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Plaintiff seeks $10,000 in statutory damages under § 605(e)(3)(C)(i)(II) and $100,000 in

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enhanced damages under § 605(e)(3)(C)(ii). Additionally, Plaintiff seeks $4,200 in damages for

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conversion.

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A.

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Section 605 provides for statutory damages between $1,000 and $10,000 for each violation as

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the court considers just. 47 U.S.C. § 605(e)(3)(C)(i)(II). At the court’s discretion, damages may be

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increased by an additional $100,000, if “the court finds that the violation was committed willfully and

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for purposes of direct or indirect commercial advantage.” 47 U.S.C. § 605(e)(3)(C)(ii).

47 U.S.C. § 605

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Plaintiff argues that the maximum damages are warranted based on the need to deter future

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violations, the detrimental impact these violations have on this industry, and the willful nature of the
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interception. The declaration provided by Plaintiff’s President, Mr. Gagliardi, claims that Plaintiff has

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gone to great lengths to curb the unauthorized interception of its programming because of the millions

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in lost revenue resulting from piracy of broadcasts, and indicates that the state of the technology is

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such that the programming cannot be mistakenly or accidentally intercepted. (Decl. of Joseph M.

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Gagliardi in Support of Plaintiff’s Application for Default Judgment (“Gagliardi Decl.”) ¶¶ 1, 4-6, 9.)

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Additionally, the Court considers the number of televisions broadcasting (seven) and the significant

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number of patrons present (120-140). Based on the foregoing, the Court awards $4,000 under §

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605(e)(3)(C)(i)(II) for the violation and an additional $1,000 enhancement under § 605(e)(C)(ii).

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B.

Conversion

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Plaintiff has presented the Court with evidence that Defendants could have legally purchased

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the right to broadcast the Program for $4,200. (Gagliardi Decl. ¶ 8, Ex. 2 (listing $4,200 as the rate

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to purchase the Program for an establishment with seating for 101-200)). Accordingly, the Court

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awards $4,200 in conversion damages.

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III.

Attorneys’ Fees

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Plaintiff requests attorneys’ fees pursuant to § 605. While § 605(e)(3)(B)(iii) indicates that the

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“court . . . shall direct the recovery of full costs, including awarding reasonable attorneys’ fees to an

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aggrieved party who prevails,” Plaintiff has not requested an amount of attorneys’ fees nor has Plaintiff

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provided any support for such an award. Accordingly, the request for attorneys’ fees is DENIED

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without prejudice.

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CONCLUSION
Plaintiff’s motion for default judgment against Defendants Mark Anthony Sanchez and

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Raul Sanchez, Jr., d/b/a Tacos & Beer, is GRANTED. Judgment is entered in accordance with the

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foregoing for $9,200. Plaintiff’s request for attorneys’ fees is DENIED without prejudice.

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IT IS SO ORDERED.

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DATED: October 24, 2011

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Hon. Roger T. Benitez
United States District Judge
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