J & J Sports Productions, Inc. v. Gutierrez et al
OPINION AND ORDER: Plaintiff's motion for default judgment 12 is granted. Defendants are hereby ordered to pay plaintiff $12,000 in damages. Plaintiff's request to extend the time period to submit its motion for costs and fees by 14 days is granted. Plaintiff's fee motion is due 28 days after the date of this opinion and order. IT IS SO ORDERED. Signed on 1/8/2018 by Judge Ann L. Aiken. (ck)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
J & J SPORTS PRODUCTIONS, INC.,
Case No. 6:17-cv-00687-AA
OPINION AND ORDER
NUVIA DE CARMEN GUTIERREZ and LAS
CATALINAS d.b.a. LA BRISA,
In this action, plaintiff J & J Sports Productions, Inc., sued defendants Nuvia de Carmen
Gutierrez and Las Catalinas, asse1ting theft of cable/satellite signal in violation of 47 U.S.C. §
553 and § 605, as well as trespass to chattels under state law. Plaintiff alleges that defendants
broadcast "The Fight of the Century" between Floyd Mayweather, Jr. and Manny Pacquaio, a
sporting event as to which plaintiff owned the exclusive nationwide commercial distribution
rights, without paying the required licensing fee. Plaintiffs contend that the broadcast took place
at La Brisa, a commercial establishment in Salem, Oregon, operated by defendants.
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Defendants were served with notice of this action in May 2017, but they never filed an
answer or otherwise entered an appearance. The clerk entered default on October 5, 2017.
Plaintiff now moves for default judgment pursuant to Federal Rule of Civil Procedure 55(b).
Before addressing plaintiffs request for default judgment, I first must verify that
defendants were properly served. Plaintiff filed a sworn proof of service for each defendant. "A
signed return of service constitutes prima facie evidence of valid service which can be overcome
only by strong and convincing evidence." S.E.C. v. Internet Solutions for Bus. Inc., 509 F.3d
1161, 1166 (9th Cir. 2007) (internal quotation marks omitted).
Gutie1rnz was served by
substitute service to an adult co-occupant of 3908 Rockwood Park Dr. NE in Salem, Oregon.
Counsel for plaintiff ce1iified that location as Gutierrez's last known address. The process server
made four separate attempts to serve Las Catalinas at 239 Stoneway Drive NW in Salem,
Oregon. The record does not reveal why so many attempts were made to serve Las Catalinas at
that address, which differs from the address listed on the Oregon Secretary of State's website 1
and is not otherwise identified as the business's last known address. But it does not matter,
because Gutierrez is listed as the registered agent of Las Catalinas on the Oregon Secretary of
State's website. When the four initial service attempts failed, service was made to the same adult
co-occupant of 3908 Rockwood Park Drive NE in Salem, Oregon. Both defendants were also
served by mail sent to 3908 Rockwood Park Drive NE in Salem, Oregon.
I sua sponte take judicial notice of public records of the Oregon Secretary of State
regarding Las Catalinas. See Fed. R. Evid. 20l(b)(2) & (c)(l) (authorizing a federal comi to
"take judicial notice on its own" of "a fact that is not subject to reasonable dispute because it ...
. can be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned"); Smelt v. City of Orange, 447 F.3d 673, 676 n.4 (9th Cir. 2006) (describing filings
with the California Secretary of State as appropriate subjects of judicial notice). I note, pursuant
to those records, that it appears Las Catalinas, LLC was administratively dissolved in April 7,
2016, after the incidents at issue in this action but before this action was filed.
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I find the record here sufficient to establish that service met the requirements of Oregon
law. See Or. R. Civ. P. 7D(2)(b) (defining "substituted service" as service "to any person 14
years of age or older residing in the dwelling house or usual place of abode of the person to be
served," with a follow-up copy of the summons, complaint, and certificate of service sent "as
soon as reasonably possible" to the same address); Or. R. Civ. P. 7D(3)(a)(i) (authorizing
"substituted service" to individuals); Or. R. Civ. P. 7D(3)(c)(ii)(A) (authorizing "substituted
service" on the registered agent of an LLC); Fed. R. Civ. P. 4(e)(l) (providing that service
requirements for a federal case are met when the plaintiff "follow[s] state law for serving a
Plaintiff is entitled to default judgment in its favor on its 47 U.S.C. § 605(a)2 and trespass
to chattels claims.
In making this dete1mination, I have considered "(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."
Eitel v. }vfcCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). The seventh factor always weighs
against a default judgment. I find that all other factors here weigh in favor of awarding a default
judgment. In particular, I note that plaintiff submitted the sworn affidavit of an investigator who
states that she went to La Brisa the night of the fight and saw it broadcast on four televisions.
Plaintiff also provided a copy of a flyer from La Brisa Nightclub that advertises the fight and
lists a $20 cover charge.
Plaintiff states that, without discovery, it cannot be ce1iain whether defendants' actions
are properly categorized as theft of cable services or theft of satellite services; it has therefore
elected not to seek summary judgment on the § 553 claim.
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Plaintiff seeks a total of $46,000 in damages: $10,000 in statuto1y damages under 47
U.S.C. § 605(e)(3)(C)(i)(II); $30,000 in enhanced statutory damages under 47 U.S.C. §
605(e)(3)(C)(ii); and $6,000, the amount defendants would have been required to pay to
broadcast the fight lawfully, as damages for its trespass to chattels claim. Plaintiff also states
that it plans to file a motion for attorney's fees and costs under 47 U.S.C. § 605(e)(3)(b)(iii).
"The general rule of law is that upon default the factual allegations of the complaint,
except those relating to the amount of damages, will be taken as llue." Geddes v. United Fin.
Grp., 559 F.2d 557, 560 (9th Cir. 1977).
Plaintiff seeks both compensatory and statut01y
I find that plaintiff has adequately proved its $6,000 compensatory damages by
submitting a sworn declaration that defendants would have to pay that amount as a licensing fee
in order to broadcast the fight legally.
For each violation of § 605, plaintiff is entitled to statutory damages of $1,000 to
$10,000, with the exact amount to be determined according to what the court "considers just."
47 U.S.C. § 605(e)(3)(C)(i)(II). In addition, the comi has discretion to increase the damages
award for each violation in an amount up to $100,000 when "a violation was committed willfully
and for purposes of direct or indirect commercial advantage or financial gain."
Because defendants advertised the fight and charged a $20 cover, I find that this violation
was committed willfully and for purposes of direct financial gain.
I also accept plaintiffs
argument that a compensatory damages award does not sufficiently remedy its losses, becanse
the availability of pirated content depresses the licensing fee plaintiff is able to charge.
However, I find $46,000 to be an overvaluation of plaintiffs harm. Moreover, I see no evidence
in the record suggesting that defendants repeatedly violated the law such that especially strong
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dete1Tent measures are necessary. Having carefully reviewed the record presented, I will impose
a statutory damages award of $3,000 and an enhanced damages award of $3,000, for a total of
$12,000 in damages. I find that amount--double the licensing fee-to be a just valuation of
plaintiffs harm. Moreover, I find that $12,000, when combined with plaintiffs reasonable fees
and costs, is sufficient to deter violations of the law, at least in the absence of evidence
defendants are repeat violators.
Plaintiffs motion for default judgment (doc. 12) is granted.
Defendants are hereby
ordered to pay plaintiff $12,000 in damages. Plaintiffs request to extend the time period to
submit its motion for costs and fees by 14 days is granted. Plaintiffs fee motion is due 28 days
after the date of this opinion and order.
IT IS SO ORDERED.
gfJlay of Jannary 2018. ·
United States District Judge
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