-GSA J & J Sports Productions, Inc. v. James et al, No. 1:2010cv01711 - Document 29 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS on Plaintiff's 26 Application for Default Judgment by the Court signed by Magistrate Judge Gary S. Austin on 6/7/2011. Objections due within fifteen (15) days of service of this recommendation. (Bradley, A)

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-GSA J & J Sports Productions, Inc. v. James et al Doc. 29 1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 J & J SPORTS PRODUCTIONS, INC., 11 12 Plaintiff, v. 13 14 TASHA A. JAMES, el al., 15 Defendant. 16 ) ) ) ) ) ) ) ) ) ) ) ) ) 1:10-cv-1711 AWI GSA FINDINGS AND RECOMMENDATIONS ON PLAINTIFF’S APPLICATION FOR DEFAULT JUDGMENT BY THE COURT (Document 26) 17 On April 14, 2011, Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) filed the present 18 Application for Default Judgment by the Court against Defendant James & Carlton Family Pizza 19 (“Defendant”). (Doc. 26). Defendant has not filed an opposition. The matter was taken under 20 submission pursuant to Local Rule 230 (c) and (g) and the hearing scheduled for June 3, 2011, 21 was vacated. 22 BACKGROUND 23 Plaintiff filed the instant action on September 17, 2010. (Doc. 1). A first amended 24 complaint was subsequently filed on December 13, 2010. (Doc. 7). Defendant was served with 25 the summons and the first amended complaint on December 30, 2010. (Docs. 5). The first 26 amended complaint alleges violations of Title 47 of the United States Code sections 605 and 553. 27 Plaintiff also alleges a state law claim of conversion and a violation of California Business and 28 1 Dockets.Justia.com 1 Professions Code section 17200, et seq. 2 Defendant has not answered the complaint or otherwise appeared in this action. (Doc. 3 26-1 at pg. 4 lines 17-19 & Doc. 26-2 at ¶ 2). On March 24, 2011, the Clerk of the Court entered 4 default against Defendant James & Carlton Family Pizza. (Doc. 23). 5 Plaintiff filed the instant application for default judgment on April 14, 2011. (Doc. 26). 6 Plaintiff requests that the Court enter default judgment against Defendant in the amount of 7 $112,200.00. (Doc. 26-4 at pg. 2). Despite being served with the application by United States 8 Mail, Defendant has not responded to the application. 9 Legal Standard 10 Federal Rule of Civil Procedure 55(b)(2) provides that judgment may be entered: 11 By the Court. In all other cases, the party must apply to the court for a default judgment. A default judgment may be entered against a minor or competent person only if represented by a general guardian, conservator, or other like fiduciary who has appeared. If the party against whom a default judgment is sought has appeared personally or by a representative, that party or its representative must be served with written notice of the application at least 3 days before the hearing. The court may conduct hearings or make referrals--preserving any federal statutory right to a jury trial--when, to enter or effectuate judgment, it needs to: (A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter. 12 13 14 15 16 17 18 “Upon default, the well-pleaded allegations of the complaint relating to liability are taken as 19 true.” Dundee Cement Co. v. Highway Pipe and Concrete Products, 722 F.2d 1319, 1323 (7th 20 Cir. 1983); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-918 (9th Cir. 1987). 21 Factors which may be considered by courts in exercising discretion as to the entry of a 22 default judgment include: (1) the possibility of prejudice to the plaintiff; (2) the merits of 23 plaintiff’s substantive claim; (3) the sufficiency of the complaint; (4) the sum of money at stake 24 in the action; (5) the possibility of a dispute concerning material facts; (6) whether the default 25 was due to excusable neglect; and (7) the strong policy underlying the Federal Rules of Civil 26 Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 27 1986). 28 /// 2 1 DISCUSSION 2 Service of summons and complaint in this action was made on Defendant James & 3 Carlton Family Pizza on February 16, 2011. A true and correct copy of the Proof of Service was 4 filed with this Court on March 17, 2011. (Doc. 19). Defendant failed to respond to the 5 complaint or otherwise appear in this action. The Clerk of the Court entered default against 6 Defendant on March 24, 2011. (Doc. 23). Defendant is not an infant or incompetent person, and 7 is not in the military service or otherwise exempted under the Soldiers’ and Sailors’ Civil Relief 8 Act of 1940. (Doc. 26-2 1 at ¶ 3). 9 Plaintiff seeks judgment pursuant to Title 47 of the United States Code section 605 10 against Defendant for unlawfully intercepting, receiving and exhibiting the “Number One”: The 11 Floyd Mayweather, Jr. v. Juan Manuel Marquez Championship Fight Program on September 12 19, 2009, at its commercial establishment located at 5103 W. Walnut Avenue, in Visalia, 13 California. Plaintiff requests enhanced statutory damages in the amount of $110,000.00 and 14 $2,200.00 for state law conversion. 15 16 17 18 19 20 21 22 23 24 25 The relevant provisions of Title 47 of the United States Code section 605, which address unauthorized publication or use of wire or radio communications, state: (a) . . . no person receiving, assisting in receiving, transmitting, or assisting in transmitting, any interstate or foreign communication by wire or radio shall divulge or publish the existence, contents, substance, purport, effect, or meaning thereof, except through authorized channels of transmission or reception, (1) to any person other than the addressee, his agent, or attorney. . .. No person not being authorized by the sender shall intercept any radio communication and divulge or publish the existence, contents, substance, purport, effect, or meaning of such intercepted communication to any person. No person not being entitled thereto shall receive or assist in receiving any interstate or foreign communication by radio and use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. No person having received any intercepted radio communication or having become acquainted with the contents, substance, purport, effect, or meaning of such communication (or any part thereof) knowing that such communication was intercepted, shall divulge or publish the existence, contents, substance, purport, effect, or meaning of such communication (or any part thereof) or use such communication (or any information therein contained) for his own benefit or for the benefit of another not entitled thereto. 26 27 Additionally, the aggrieved party is authorized to obtain statutory damages of “not less than 28 $1,000 or more than $10,000, as the court considers just” for each violation. 47 U.S.C. § 3 1 605(e)(3)(C)(i)(II). The court may award enhanced damages up to $100,000 for each violation if 2 it finds the violation was willfully committed for commercial advantage or private financial gain. 3 47 U.S.C. § 605 (e)(3)(C)(ii). 4 Plaintiff attests that it is a closed-circuit distributor of sports and entertainment 5 programming that purchased and retained the commercial exhibition licensing rights to the 6 program at issue. Plaintiff marketed the sub-licensing (commercial exhibition) rights in the 7 program to its commercial customers. (Doc. 26-5 at ¶ 3). Plaintiff contends that persistent signal 8 piracy of its programming costs the company, its customers, and the community millions of 9 dollars annually. (Doc. 26-5 at ¶ 11). Plaintiff believes this results in part from the perceived 10 lack of significant consequences (including nominal or minimal damage awards by the Courts 11 who hear its cases) for such unlawful interception and exhibition by the commercial signal 12 pirates. (Doc. 26-5 at ¶ 12). As such, Plaintiff requests the maximum allowance for statutory 13 violations, totaling $110,000.00. (Doc. 26-5 at ¶ 13). Moreover, Plaintiff notes that Defendant 14 is a repeat offender noting that another action has been filed against this Defendant for similar 15 alleged misconduct at the same establishment occurring on the same evening.1 (Doc. 26-4 at ¶¶ 16 4-6). 17 Here, the summons and complaint were properly served on Defendant. (Doc. 19). Thus, 18 it appears that Defendant’s default was properly entered, and the complaint is sufficiently well- 19 pled. By his default, Defendant has admitted to willfully violating the referenced statutes for 20 purposes of commercial advantage. 21 Although deterrence of future violations is an important objective of the statutes, the facts 22 before the Court indicate that Defendant’s establishment is a medium-sized pizza parlor with a 23 maximum capacity of approximately sixty-five patrons. Manual Ruiz, an investigator for 24 Plaintiff, submitted a affidavit indicating that the parlor contained two forty inch Phillips LCD 25 television sets that were located in the corners of the room. (Doc. 26-3). Ruiz conducted three 26 head counts while he was in the bar for a total of about fifty minutes, between 8:51 and 9:40 27 28 1 Another action was filed against this Defendant by another Plaintiff in this district on September 16, 2010. Joe Hand Promotions, Inc. v. Tasha James et al., 1:10-cv-1702-OW W -DLB. 4 1 p.m., on September 19, 2009. Each of the three counts revealed that “54+” persons were present 2 during the fight.2 Photographs of the establishment depict that the pizza parlor located in a strip 3 mall with other businesses. (Doc. 26-3 at 2-8). 4 Although Plaintiff requests $110,000.00 in damages for the Title 47 violations based in 5 part because Defendant is a repeat offender, it is noted that at the time of this order, liability 6 against Defendant in the other case has not yet been established. Moreover, while it appears the 7 establishment was either close to full, or filled to capacity, given the relatively humble nature of 8 the business itself, the Court finds that the amount of requested damages should be reduced. The 9 Court will recommend the maximum statutory award of $10,000.00 for the violation pursuant to 10 47 U.S.C. § 605(e)(3)(C)(i)(II) and an additional $30,000 in enhanced damages pursuant to 47 11 U.S.C. § 605 (e)(3)(C)(ii). 12 Additionally, Plaintiff seeks $2,200.00 in conversion damages, the value of the property 13 at the time of the conversion. (Doc. 26-5 at 8.) Under California law, "[c]onversion is the 14 wrongful exercise of dominion over the property of another. The elements of a conversion are 15 (1) the plaintiff's ownership or right to possession of the property at the time of the conversion; 16 (2) the defendant's conversion by a wrongful act or disposition of property rights; and (3) 17 damages." Greka Integrated, Inc. v. Lowrey, 133 Cal.App.4th 1572, 1581, 35 Cal.Rptr.3d 684 18 (2005) (internal quotation marks omitted); see also G.S. Rasmussen & Assocs., Inc. v. Kalitta 19 Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir.1992). "Because conversion is a strict liability tort, 20 questions of the defendant's good faith, lack of knowledge, motive, or intent are not relevant." 21 Gilman v. Dalby, 176 Cal.App.4th 606, 615 n.1, 98 Cal.Rptr.3d 231 (2009). Exclusive right to 22 distribute a broadcast signal to commercial establishments constitutes a “right to possession of 23 property” for purposes of conversion. See Don King Prods./Kingvision v. Lovato, 911 F.Supp. 24 419, 423 (N.D. Cal. 1995); see also DIRECTV, Inc. v. Pahnke, 405 F.Supp.2d 1182, 1189 (E.D. 25 Cal. 2005) (concluding that the "right to distribute programming via satellite" constituted a "right 26 to possession of personal property" for purposes of a conversion claim under California law). 27 28 2 The first headcount revealed 54 people were present, the second head count revealed 57 people were present, and the third head count revealed that 65 people were present. 5 1 Here, Plaintiff was granted the exclusive domestic commercial exhibition licensing rights 2 to the program at issue, and thus had the right to possession of the property at the time of the 3 conversion. (Doc. 26-5, ¶ 3.) Next, because Defendant did not legally purchase the pay-per- 4 view programming, the exhibition of “Number One”: The Floyd Mayweather, Jr. v. Juan Manuel 5 Marquez Championship Fight Program event in the Pizza Factory on September 19, 2009, 6 constituted Defendant’s conversion by a wrongful act or disposition of property rights. (Doc. 26 7 at pg. 23). Finally, Plaintiff has indicated that the sub-license fee for an establishment similar in 8 size to Defendant’s for the program would have been $2,200.00. (Doc. 26-5 at Ex. 1.) Thus, 9 Plaintiff is entitled to damages for conversion in the amount of $2,200.00. 10 RECOMMENDATIONS 11 12 Based on consideration of the declarations, pleadings and exhibits to the present application, the Court RECOMMENDS as follows: 13 1. Plaintiff’s application for default judgment be GRANTED; 14 2. Judgment be entered in this action against Defendant James & Carlton Family 15 Pizza ; and 16 3. Damages in the total amount of $42,220.00 be awarded as follows: 17 a. For the violation of 47 U.S.C. § 605(e)(3)(C)(i)(II), the sum of $10,000.00; 18 b. For the violation of 47 U.S.C. § 605 (e)(3)(C)(ii), the sum of $30,000.00; 19 and 20 c. For the conversion of Plaintiff’s property, the sum of $2,200.00. 21 22 /// 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 6 1 /// 2 These findings and recommendations are submitted to the district judge assigned to this 3 action, pursuant to Title 28 of the United States Code section 636(b)(1)(B) and this Court’s Local 4 Rule 304. Within fifteen (15) days of service of this recommendation, any party may file written 5 objections to these findings and recommendations with the Court and serve a copy on all parties. 6 Such a document should be captioned “Objections to Magistrate Judge’s Findings and 7 Recommendations.” The district judge will review the magistrate judge’s findings and 8 recommendations pursuant to Title 28 of the United States Code section 636(b)(1)(C). The 9 parties are advised that failure to file objections within the specified time may waive the right to 10 appeal the district judge’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 11 IT IS SO ORDERED. 12 Dated: 6i0kij June 7, 2011 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7

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