-SMS J & J Sports Productions, Inc. v. Barragan et al, No. 1:2010cv02253 - Document 23 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS recommending Denial of Plaintiff's Motion for Default Judgment 19 . Referred to Judge Ishii; Objections to F&R due within 15 days from service of this order. signed by Magistrate Judge Sandra M. Snyder on 8/26/2011. (Herman, H)

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-SMS J & J Sports Productions, Inc. v. Barragan et al Doc. 23 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 J & J SPORTS PRODUCTIONS, INC., 10 Plaintiff, 11 12 CASE NO. 1:10-cv-02253-AWI-SMS FINDINGS AND RECOMMENDATIONS RECOMMENDING DENIAL OF PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT v. ANA A. BARRAGAN, et al., (Doc. 19) 13 Defendants. / 14 15 Plaintiff J & J Sports Productions, Inc., moves for Entry of Default Judgment against 16 Defendants Ana A. Barragan and Angel O. Barragan, individually, and doing business as Los 17 Compadres Restaurant a/k/a/ Los Compadres Mexican Restaurant. This Court has reviewed 18 Plaintiff’s motion and supporting documents and has determined that this matter is suitable for 19 decision without oral argument pursuant to Local Rule 78-230(h). Because Plaintiff moves for 20 summary judgment on a claim that is not included within its complaint, its motion for default 21 judgment must be denied. 22 I. 23 Discussion On December 3, 2010, Plaintiff filed its complaint against Defendant, alleging copyright 24 infringement pursuant to 17 U.S.C. §§ 501(a) and 501(b), conversion, and violation of California 25 Business and Professions Code § 17200 et seq. The allegations were based on Defendant’s 26 alleged unlawful interception, copying, and public exhibition of a December 6, 2008 pay-per- 27 view program featuring the Oscar De La Hoya v. Manny Pacquiao Welterweight Championship 28 Fight Program, including under-card bouts and fight commentary (the “program”). Plaintiff was 1 Dockets.Justia.com 1 the exclusive commercial distributor of the program in the United States as well as the assignee 2 of the copyright to the program for enforcement purposes. Plaintiff sub-licensed the right to 3 exhibit the program to commercial establishments in the hospitality industry, such as bars, 4 restaurants, hotels, and similar establishments. 5 Plaintiff served Defendants on April 3, 2011. Neither Defendant has answered or 6 otherwise appeared in this action. The Clerk of Court entered default against both Defendants on 7 May 9, 2011. 8 9 On June 23, 2011, Plaintiff moved for default judgment for unauthorized publication or use of communications, contrary to 47 U.S.C. § 605 et seq., and 47 U.S.C. § 553 et seq. The 10 complaint does not include claims that Defendants violated 47 U.S.C. § 605 et seq., and 47 11 U.S.C. § 553 et seq., however. Accordingly, a grant of default judgment on these claims would 12 be inappropriate. 13 IV. 14 Recommendation Because the complaint does not include a claim that Defendants were not authorized to 15 publish or use communications, contrary to 47 U.S.C. § 605 et seq., and 47 U.S.C. § 553 et seq., 16 the Court RECOMMENDS denial of Plaintiff’s motion for default judgment. 17 These Findings and Recommendations are submitted to the Honorable Anthony W. Ishii, 18 United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 631(b)(1)(B) and 19 Rule 305 of the Local Rules of Practice for the United States District Court, Eastern District of 20 California. Within fifteen (15) days after being served with a copy, any party may file written 21 objections with the court, serving a copy on all parties. Such a document should be captioned 22 “Objections to Magistrate Judge’s Findings and Recommendations.” The parties are advised that 23 failure to file objections within the specified time may waive the right to appeal the District 24 Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 25 IT IS SO ORDERED. 26 Dated: icido3 August 26, 2011 /s/ Sandra M. Snyder UNITED STATES MAGISTRATE JUDGE 27 28 2

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