G & G Closed Circuit Events, LLC v. Castro et al
Filing
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ORDER GRANTING MOTION FOR DEFAULT JUDGMENT. Signed by Judge Richard Seeborg on 8/9/12. (cl, COURT STAFF) (Filed on 8/9/2012)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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SAN FRANCISCO DIVISION
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For the Northern District of California
United States District Court
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G&G CLOSED CIRCUIT EVENTS, LLC,
Case No. 12-01036 RS
ORDER GRANTING MOTION FOR
DEFAULT JUDGMENT
Plaintiff,
v.
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HELOISA CASTRO and CLAUDIO
ALMEIDA WAQUED, individually and
d/b/a MARCELLO’S PIZZA,
Defendants.
____________________________________/
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I. INTRODUCTION
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Plaintiff G&G Closed Circuit Events, LLC, seeks default judgment against defendants
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Heloisa Castro and Claudio Almeida Waqued, individually and doing business as Marcello’s Pizza.
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G&G is a commercial distributor and licensor for televised sporting events, and claims that on
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March 5, 2011, Castro and Waqued displayed “Strikeforce: Rafael Calvacante v. Dan Henderson
”
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(hereafter referred to as “the Program on a television in Marcello’s Pizza to approximately 15 to 19
”)
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individuals without obtaining the sublicensing rights from G&G to display the program. Because
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G&G has established the right to have default judgment entered in its favor, its motion will be
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granted, although statutory damages will be awarded in an amount less than requested.
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Case No. 12-01036 RS
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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II. BACKGROUND
G&G employs investigators to police against unauthorized (and unpaid) exhibitions in
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commercial establishments of pay-per-view sports and entertainment programming to which G&G
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holds licensing rights. G&G’s investigator, Jeff Kaplan, has submitted an affidavit describing his
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observations upon visiting Marcello’s Pizza, operated by defendants Heloisa Castro and Claudio
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Almeida Waqued. Kaplan states that he observed a portion of the Program as it was displayed on
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one television in the restaurant. Kaplan also states that the restaurant has a capacity of over 50
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people and that he conducted three separate headcounts, counting between 15 and 19 people in the
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restaurant during the time he was present. There is no evidence that the restaurant imposed a cover
charge for admission, or that the restaurant is a repeat offender in displaying G&G’s or any other
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For the Northern District of California
United States District Court
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commercial distributor’s program without authorization.
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The Program apparently was available both through satellite television services and cable
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television providers. See Complaint ¶¶ 16-30 (alleging violation of 47 U.S.C. § 605, prohibiting
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unauthorized interception of satellite programming, and violation of 47 U.S.C. § 553, prohibiting
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unauthorized interception of cable programming). There is no evidence as to which of the two
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services Castro and Waqued utilized to obtain the Program. G&G asserts that the Program could
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not have been mistakenly, innocently, or accidentally intercepted and shown, and that Castro and
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Waqued must have knowingly and willfully displayed the Program.
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Had Castro and Waqued obtained a license to exhibit the Program at the restaurant, the fee
would have been $1200. G&G’s claim for conversion therefore seeks damages in that amount.
III. STANDARD
Following entry of default, courts are authorized to grant default judgment in their
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discretion. See Fed. R. Civ. P. 55; Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In
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exercising its discretion, the factors the court may consider include: (1) the possibility of prejudice
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to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4)
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the sum of money at stake in the action; (5) the possibility of a dispute concerning material facts; (6)
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whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal
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Case No. 12-01036 RS
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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Rules of Civil Procedure favoring decisions on the merits. Eitel v. McCool, 782 F.2d 1470, 1471-72
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(9th Cir. 1986). In considering these factors, all factual allegations in the plaintiff’s complaint are
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taken as true, except for those relating to damages. TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d
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915, 917-18 (9th Cir. 1987).
IV. DISCUSSION
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In this case, the Eitel factors weigh in favor of granting G&G’s motion for default judgment.
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The allegations in the complaint, taken as true, and further supported by the evidence submitted with
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the motion, establish that Castro and Waqued displayed the Program in a commercial establishment
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without authorization and payment of the requisite fee to G&G. Castro and Waqued were given
notice of this action, and knew or should have known that they had an obligation to file a response.
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For the Northern District of California
United States District Court
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Under these circumstances, the policy favoring decisions on the merits must yield to G&G’s right to
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a judicial determination of its claims.
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G&G’s original complaint asserted claims against Castro and Waqued under 47 U.S.C. § 605,
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47 U.S.C. § 553 (alleged in the alternative), and California Business & Professions Code §17200, as
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well as a conversion claim. G&G’s motion only seeks statutory damages under § 605 and actual
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damages under the conversion claim. Neither the complaint nor the declarations submitted with the
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motion establish whether Castro and Waqued intercepted a cable signal or a satellite signal,
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however. Indeed, G&G’s motion expressly acknowledges that it has no information as to the method
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of interception. Thus, while G&G has established that Castro and Waqued wrongfully intercepted
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and exhibited the Program, and presumably did so in violation of either 47 U.S.C. § 605 or 47
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U.S.C. § 553, there is an insufficient basis to conclude with certainty which of the two statutes
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would support an award of statutory damages. G&G has not indicated why it abandoned the
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alternatively-pleaded claim under § 553 despite the fact that G&G does not know the method of
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interception.
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In cases similar to this one, holders of pay-per-view licensing rights have sometimes been
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granted default judgments, including statutory damages, by orders not expressly addressing this
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issue. When courts have explicitly questioned the adequacy of a plaintiff’s showing as to the means
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Case No. 12-01036 RS
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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by which a pay-per-view signal was intercepted, they have sometimes been willing to presume it
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more likely to have been through a violation of § 553, because “a cable box is hidden more easily
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than a satellite dish. G & G Closed Circuit Events, LLC v. Vo, No. 10-05720, 2012 WL 899955, at
”
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*2 (N.D. Cal. Mar. 15, 2010); J & J Sports Prods., Inc. v. Guzman, No. 08-05469, 2009 WL
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1034218, at *2 (N.D. Cal. Apr. 16, 2009). That approach is unsatisfactory here, given that G&G is
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not seeking damages under § 553.
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Nevertheless, § 605 and § 553 each provide a discretionary range of possible damage
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awards, and those ranges are overlapping between the sums of $1000 and $10,000.1 G&G points to
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numerous cases from various districts involving default judgments against defendants for
unauthorized exhibition of pay-per-view programming where courts have awarded statutory
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For the Northern District of California
United States District Court
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damages up to the maximum, including, in some instances,“enhanced damages. G&G urges the
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same result here. G&G acknowledges that other courts have declined to enter substantial awards,
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and argues“that those cases that award nominal damages are a major reason why there have been
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little to no decrease in piracy.
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G&G, however, has not shown that there is any threshold amount that creates a deterrent
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effect, or that default judgments ever significantly deter“piracy. The inference G&G seeks to draw
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that nominal damages awards in default judgments perpetuate continued misappropriation is
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undermined by its citation to many cases awarding statutory maximums, which apparently likewise
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have proven ineffective at deterring the conduct.
Nevertheless, were G&G awarded under its conversion claim only the $1200 license fee
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Castro and Waqued avoided paying, it is self-evident that defendants would have no disincentive
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against simply continuing to exhibit pay-per-view programs without authorization and allowing
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default judgments to be entered when a plaintiff learns of it and pursues the matter. Accordingly,
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The range under § 605 is from $1000 to $10,000, with the potential of enhanced damages up to
$100,000 for a willful violation committed for commercial advantage, or a reduction to as low as
$250 where, “the violator was not aware and had no reason to believe that his acts constituted a
violation. Under § 553, the basic range is from $250 to $10,000, with potential enhancement up to
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$50,000, or reduction down to $100.
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Case No. 12-01036 RS
ORDER GRANTING MOTION FOR DEFAULT JUDGMENT
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under all the circumstances here, an award of statutory damages in the amount of $5000 is
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appropriate. Any uncertainty as to whether Castro and Waqued in fact violated § 605 is immaterial
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in light of the fact that a statutory award in the same amount is equally appropriate in the event they
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actually violated § 553. Castro and Waqued’s failure to appear and defend this action cannot be
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permitted to preclude G&G from being awarded any statutory damages, when it has shown that the
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interception of the Program necessarily violated one of the two statutes.
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G&G has not shown, however, that an award of “
enhanced damages under either statute is
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in addition to statutory damages. See § 605(e)(3)(c) ( the election of the aggrieved party . . . [it]
“at
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may recover the actual damages . . . or . . . statutory damages . . . . ). Judgment will therefore be
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For the Northern District of California
warranted. Nor has it shown that it is entitled to recover actual damages under its conversion theory
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United States District Court
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entered in the amount of $5000.
V. CONCLUSION
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The motion is granted. A separate judgment in plaintiff’s favor will issue.
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IT IS SO ORDERED.
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Dated: 8/9/12
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RICHARD SEEBORG
UNITED STATES DISTRICT JUDGE
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Case No. 12-01036 RS
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