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

Filing 18

ORDER Granting in Part 13 Motion for Default Judgment in the amount of $15,000. J & J shall have 14 days from the date of entry of judgment to submit its motion for costs and attorney's fees. Signed by Judge Larry Alan Burns on 6/14/2017. (lrf)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 J&J SPORTS PRODUCTIONS, INC., 12 CASE NO. 16cv950-LAB (WVG) Plaintiff, ORDER GRANTING IN PART MOTION FOR DEFAULT JUDGMENT vs. 13 14 RAMON T. GALLEGOS, et al., Defendants. 15 16 17 After Defendants failed to answer or defend this action, default was entered against 18 them. Plaintiff J & J Sports Productions, Inc. then moved for default judgment. Defendants 19 were ordered, if they did not consent to entry of judgment against themselves, to file a 20 written opposition, and a copy of the Court’s order was mailed to them. When they failed 21 to oppose the motion, the hearing was vacated and the matter was taken under submission. 22 J & J’s motion seeks damages for Defendants’ infringement of its broadcast rights in 23 a televised boxing match. According to the complaint, Defendants intercepted and played 24 the broadcast in a restaurant for commercial purposes, even posting an advertisement in the 25 window to bring in customers. J & J seeks damages amounting to $27,000 both for statutory 26 violations and for conversion, plus costs and attorney’s fees. That figure is broken down as 27 follows: $6,000 for statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II); $18,000 under 28 § 605 (e)(3)(C)(ii) for a willful violation; and $3,000 for conversion. The principal claims arise -1- 16cv950 1 under federal law, and the Court can exercise supplemental jurisdiction over the state-law 2 claims, which arise from the same infringing acts. 3 An award of attorney’s fees is authorized by 47 U.S.C. § 605. J & J did not request 4 costs or fees in a particular amount, but asked that it be granted 14 days from entry of 5 judgment to submit its motion for costs and fees. 6 Entry of default judgment is governed by Fed. R. Civ. P. 55 and is committed to the 7 Court's discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In determining 8 whether to enter a default judgment in Plaintiff's favor, the Court examines the factors set 9 forth in Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986): 10 11 12 (1) the possibility of prejudice to the plaintiff, (2) the merits of plaintiff's substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) 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 decisions on the merits. 13 14 The Court accepts the factual allegations in the complaint, other than those relating to the 15 amount of damages, as true. See Televideo Video Sys., Inc. v. Heidenthal, 826 F.2d 915, 16 917–18 (9th Cir. 1987). 17 All the Eitel factors either weigh in favor of default judgment or are neutral; none 18 weigh against it. The complaint adequately sets forth facts that plausibly support its four 19 claims. Piracy of sports and other entertainment broadcasts by small businesses is both 20 widespread and difficult to detect. J & J Sports Productions, Inc. v. Marcaida, 2011 WL 21 2149923, at *4 (N.D. Cal. May 31, 2011) (quoting Garden City Boxing Club, Inc. v. Batista, 22 2007 WL 4276836 at *4 (E.D. N.Y. 2007)). Awards of damages are necessary to deter 23 would-be infringers. Id. Unless default judgment is granted, J & J will lose not just the fee 24 Defendants should have paid, but also the deterrence value of this suit. The amount of 25 money at stake is significant but not overwhelming, and the damages request does not 26 appear to be inflated. The Court is reducing the damages for conversion, however. 27 There is some question whether Defendants’ piracy involved a satellite or cable 28 broadcast, which would affect whether J & J’s claims arise under 47 U.S.C. § 605 or § 553. -2- 16cv950 1 But resolving such a dispute is impossible without Defendants’ involvement in the case. See 2 Joe Hand Promotions, Inc. v. Fierro, 2015 WL 351663, at *2 (E.D. Cal. Jan. 26, 2015) 3 (where it was unclear whether the infringed programming was broadcast over cable or 4 satellite, holding that statutory damages should be awarded under § 605, to avoid unfair 5 prejudice to the plaintiff). Because Defendants were given several warnings about the 6 possibility of default judgment, it does not appear that their default can be attributed to 7 excusable neglect. Although the Court is mindful of the policy favoring judgments on the 8 merits whenever possible, it does not appear to be possible here. 9 Conversion damages are to be based on the value of the property that was converted. 10 See Marcaida, 2011 WL 2149923, at *4. The motion does not seek punitive damages or 11 damages under California Bus. & Prof. Code § 17200. Instead, J & J appropriately identifies 12 the $3,000 fee Defendants ought to have paid as the basis for the valuation. See id. (citing 13 Krueger v. Bank of America, 145 Cal. App. 3d 204, 215 (Ct.App.1983)) (measuring the value 14 of a pirated program by the fee the defendant would have had to pay to lawfully purchase 15 the program). 16 J & J also seeks an award of statutory damages, which requires the Court to set the 17 damages within a given range. See Joe Hand Promotions, Inc. v. Streshly, 655 F. Supp. 2d 18 1136, 1137 (S.D. Cal. 2009). The Court uses the range provided for under 47 U.S.C. § 605. 19 See id. at 1137 (where damages could be awarded under either 47 U.S.C. § 605 or § 553, 20 awarding damages under the higher of the two, i.e., § 605). Under that provision, ordinary 21 statutory damages cannot be less than $1,000 nor more than $10,000. § 605(e)(3)(C)(i)(II). 22 But if the violation was committed willfully and for purposes of direct or indirect commercial 23 advantage or private financial gain, the Court may award an additional amount of up to 24 $100,000. § 605(e)(3)(C)(ii). In this case, Defendant advertised the boxing match in the 25 restaurant window and showed it on two large-screen televisions in the restaurant. The 26 violation was therefore clearly done both wilfully and for purposes of commercial advantage, 27 and additional damages are warranted. 28 /// -3- 16cv950 1 The Court is not required to accept a plaintiff’s valuation, and under the circumstances 2 the Court believes the suggested statutory damages are too high. See id. at 1139 3 (exercising discretion to determine an appropriate statutory award in light of the particular 4 facts of the case and of awards in other cases). Among other factors, the audience for the 5 match appears to have been rather small. The restaurant’s capacity is about 55 customers, 6 and only about 15 to 20 were present at the time the match was showing. Mindful of other 7 facts of the case, awards in other cases, and the need for deterrence, the Court concludes 8 that an award half the amount J & J seeks would be reasonable. 9 It should be noted that the $3,000 award for conversion is not duplicative of the 10 $3,000 statutory damages award. Statutory damages are intended, in part, to deter future 11 piracy both by Defendants and others. The need for deterrence requires an award 12 substantially higher than the cost Defendants would have had to pay to show the program 13 lawfully. See Marcaida, 2011 WL 2149923 at *4. 14 The Court finds that all requirements for entry of default judgment have been 15 satisfied, and that entry of judgment is appropriate under applicable law. The motion for 16 default judgment is therefore GRANTED. The Court ORDERS that judgment be entered 17 against Defendants and in favor of J & J Sports Productions, Inc. as follows: 18 a. For the Violation of Title 47 U.S.C. § 605(e)(3)(C)(i)(II): $ 3,000.00 19 b. For the Violation of Title 47 U.S.C. § 605(e)(3)(C)(ii): $ 9,000.00 20 c. For the Tort of Conversion: $ 3,000.00 21 Total: $ 15,000.00 22 J & J shall have 14 days from the date of entry of judgment to submit its motion for costs 23 and attorney’s fees. 24 25 IT IS SO ORDERED. DATED: June 14, 2017 26 27 HONORABLE LARRY ALAN BURNS United States District Judge 28 -4- 16cv950

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?