-GGH J & J Sports Productions, Inc. v. Rodriguez et al, No. 2:2010cv01044 - Document 15 (E.D. Cal. 2011)
Court Description: ORDER AND FINDINGS AND RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 2/25/11 ORDERING that the Clerk of the Court shall serve these findings and recommendations on the defaulting defendants at the address indicated on plaintiff 9;s proof of service of the instant motion; and RECOMMENDING that plaintiff's motion for entry of default judgment, 10 , be GRANTED in part. Judgment should be rendered in the amount of $10,000 in statutory damages and $13,328 in enhanced statutory damages for a total award of $23,328. Referred to Judge Kimberly J. Mueller; Objections due within 14 days after being served with these findings and recommendations. (Becknal, R)
Download PDF
<![CDATA[
-GGH J & J Sports Productions, Inc. v. Rodriguez et al Doc. 15 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 J & J SPORTS PRODUCTIONS, INC., 9 Plaintiff, 10 11 CIV. NO. S-10-1044 KJM GGH vs. ELIAS MUNOZ RODRIGUEZ, et al., 12 ORDER AND FINDINGS AND RECOMMENDATIONS 13 14 Defendants. ___________________________/ 15 Presently before the court is plaintiff’s application for entry of default judgment 16 against defendants Elias Rodriguez and Rocio Rodriguez, d/b/a Hacienda Los Portales a/k/a La 17 Noria Restaurant, and La Noria Enterprises, an unknown business entity d/b/a Hacienda Los 18 Portales a/k/a La Noria Restaurant, filed September 10, 2010.1 Upon review of the motion and 19 the supporting documents, and good cause appearing, the court issues the following order and 20 findings and recommendations. 21 BACKGROUND 22 23 On April 29, 2010, plaintiff filed the underlying complaint in this action against defendants Elias Rodriguez, Rocio Rodriguez, and La Noria Enterprises, alleging defendants 24 25 26 1 The matter was originally scheduled for hearing on October 21, 2010; however, it was vacated after the court determined that a hearing was not necessary. Order, filed October 18, 2010. 1 Dockets.Justia.com 1 unlawfully intercepted and exhibited a broadcast of a program entitled, “The Battle of East and 2 West: Manny Pacquiao v. Ricky Hatton, IBO Light Welterweight Championship Fight Program,” 3 (“Program”), in their establishment for commercial advantage without obtaining a sublicense 4 from plaintiff for its use, in violation of the Communications Act, 47 U.S.C. § 605, the Cable 5 Communications Policy Act, 47 U.S.C. § 553, and state law. The complaint alleges defendants 6 exhibited the Program on May 2, 2009. The summons and complaint were served on defendants 7 by substituted service on July 22, 2010. Fed. R. Civ. P. 4(e)(2). Pacific Atlantic Trading Co. v. 8 M/V Main Express, 758 F.2d 1325, 1331 (9th Cir. 1985) (default judgment void without 9 personal jurisdiction). Defendants Elias and Rocio Rodriguez and La Noria Enterprises have 10 failed to file an answer or otherwise appear in this action. The clerk entered default against 11 defendants on August 25, 2010. 12 Request for entry of default and the instant motion for default judgment and 13 supporting papers were served by mail on defendants at their last known address. Defendants did 14 not file an opposition to the motion for entry of default judgment. Plaintiff seeks an entry of 15 default judgment in the amount of $111,600 against defendants Elias Rodriguez, Rocio 16 Rodriguez and La Noria Enterprises. 17 DISCUSSION 18 Entry of default effects an admission of all well-pleaded allegations of the 19 complaint by the defaulted party. Geddes v. United Financial Group, 559 F.2d 557 (9th Cir. 20 1977). The court finds the well pleaded allegations of the complaint state claims for which relief 21 can be granted. Anderson v. Air West, 542 F.2d 1090, 1093 (9th Cir. 1976). 22 The complaint requests, in the event of default, an award of damages pursuant to 23 47 U.S.C. § 605 et seq. (The Communications Act) and 47 U.S.C. § 553, et seq. (The Cable 24 Communications Policy Act), as well as compensatory and punitive damages for conversion, and 25 restitution for violation of Cal. Bus. & Prof. Code § 17200, et seq. (Complaint at 3-10.) The 26 instant motion for default judgment requests damages pursuant to 47 U.S.C. § 605 in the amount 2 1 of $10,000 in statutory damages, $100,000 in enhanced statutory damages for having pirated 2 commercial signals in the past, and $1,600 in compensatory damages for conversion.2 Section 3 605 prohibits the unauthorized publication or use of communications such as the Program. 4 Section 605(e)(3)(A) also provides for a private civil action for a violation of 605(a). National 5 Subscription Television v. S&H TV, 644 F.2d 820, 821 n. 1 (9th Cir. 1981). 6 The court deems defaulting defendants, by their failure to appear or defend this 7 action, to have waived any objections to the statutory source of the damages prayed for in the 8 instant motion. The memorandum of points and authorities and affidavits filed in support of the 9 motion for entry of default judgment supports the finding that plaintiff is entitled to the relief 10 requested. There are no policy considerations which preclude the entry of default judgment of 11 the type requested. See Eitel v. McCool, 782 F.2d 1470, 1471-1472 (9th Cir. 1986). 12 One of the factors the court is free to consider in exercising its discretion to grant 13 or deny default judgment is the sum of money at stake. See J & J Sports Productions, Inc. v. 14 Betancourt, No. 08cv937 JLS (POR), 2009 WL 3416431, at *3 (S.D. Cal. Oct. 20, 2009). 15 Under section 605, statutory damages may be awarded between $1,000 and 16 $10,000 for violation of the Federal Communications Act and up to $100,000 when the violation 17 “was committed willfully and for purposes of direct or indirect commercial advantage or 18 financial gain.” 47 U.S.C. § 605(e)(3)(C)(i)-(ii). Plaintiff has referenced one other action in the 19 Eastern District against these defendants for the same violations. (Riley Supp. Decl., ¶ 4, Ex. 20 1,dkt. #10-4.) See J & J Sports Productions, Inc. v. Rodriguez, Civ.S. 09-1188 WBS JFM. This 21 other filing does not prove defendants’ willfulness because defendants were not served with the 22 complaint in that action until June 17, 2009, after defendants exhibited the Program in this case. 23 Nevertheless, the court has considered other factors, including that the Program was shown on 24 three television sets, albeit to an audience of only 8 to 12 people, in a relatively urban city. There 25 2 26 Because plaintiff has eliminated his request for damages under § 553 and for restitution under state law, these damages will not be addressed. 3 1 was no cover charge; however, the showing of the Program was intended to increase business. 2 (Alexander Aff., dkt. #10-3.) See Joe Hand Promotions, Inc. v. Cat’s Bar, Inc., 2009 WL 3 700125, *2 (C.D. Ill. 2009). This court therefore will recommend statutory damages under 4 section 605 in the amount of $10,000 and enhanced statutory damages in the amount of $13,328. 5 Inasmuch as the award of $23,328 in statutory damages will be permitted, plaintiff’s request for 6 damages for conversion should be denied. 7 Insofar as the application for default judgment seeks attorneys’ fees and costs but 8 the memorandum in support does not contain argument in support of this request, and there is no 9 declaration supporting this request, it is denied without prejudice to its renewal at a later time. 10 CONCLUSION 11 IT IS ORDERED that the Clerk of the Court shall serve these findings and 12 recommendations on the defaulting defendants at the address indicated on plaintiff’s proof of 13 service of the instant motion. 14 In view of the foregoing findings, IT IS RECOMMENDED that plaintiff’s motion 15 for entry of default judgment, (dkt. # 10), be GRANTED in part. Judgment should be rendered 16 in the amount of $10,000 in statutory damages and $13,328 in enhanced statutory damages for a 17 total award of $23,328. 18 These findings and recommendations are submitted to the United States District 19 Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within 20 fourteen (14) days after being served with these findings and recommendations, any party may 21 file written objections with the court and serve a copy on all parties. Such a document should be 22 captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the 23 objections shall be served and filed within fourteen (14) days after service of the objections. The 24 \\\\\ 25 \\\\\ 26 \\\\\ 4 1 parties are advised that failure to file objections within the specified time may waive the right to 2 appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 3 DATED: 02/25/11 /s/ Gregory G. Hollows ___________________________________ GREGORY G. HOLLOWS UNITED STATES MAGISTRATE JUDGE 4 5 6 GGH:076/J&JSports1044.def.wpd 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 5
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
