Joe Hand Promotions, Inc. v. Villalobos, Jr. et al, No. 1:2009cv00297 - Document 16 (E.D. Cal. 2009)
Court Description: FINDINGS and RECOMMENDATIONS REGARDING Plaintiff's Application for Default Judgment - referred to Judge Wanger; signed by Magistrate Judge Dennis L. Beck on 9/16/2009. (Hernandez, M)
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Joe Hand Promotions, Inc. v. Villalobos, Jr. et al Doc. 16 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT FOR THE 8 EASTERN DISTRICT OF CALIFORNIA 9 JOE HAND PROMOTIONS, INC., 10 11 12 13 14 15 16 17 ) ) ) ) ) Plaintiff, ) ) vs. ) ) JOSE VILLALOBOS, JR., et.al., ) ) ) Defendants. ) ____________________________________) 1:09cv0297 OWW DLB FINDINGS AND RECOMMENDATION REGARDING PLAINTIFF’S APPLICATION FOR FOR DEFAULT JUDGMENT (Document 13) On June 23, 2009, Plaintiff Joe Hand Promotions, Inc. (“Plaintiff”), filed the present motion 18 for default judgment against Defendants Jose Villalobos, Jr., and Jose Villalobos, Sr., individually 19 and dba Scoreboards (“Defendants”). The motion was referred to this Court pursuant to 28 U.S.C. § 20 636(b)(1)(B) and Local Rule 72-302. The matter was heard on September 4, 2009, before the 21 Honorable Dennis L. Beck, United States Magistrate Judge. Thomas P. Riley appeared 22 telephonically on behalf of Plaintiff. Defendants did not appear. 23 24 FACTUAL AND PROCEDURAL BACKGROUND Plaintiff filed the instant action on February 16, 2009, against Defendants, alleging violations 25 of 47 U.S.C. § 605 and 47 U.S.C. § 553, as well as state law causes of action for conversion and 26 violation of Cal. Bus. & Prof. Code § 17200, et seq. The allegations are based on Defendants’ 27 alleged unlawful interception, reception, and exhibition of “Ultimate Fighting Championship 61: 28 1 Dockets.Justia.com 1 ‘Bitter Rivals’” (“Program”), which was telecast on July 8, 2006. According to the complaint, 2 Plaintiff was the exclusive nationwide commercial distributor of the Program. 3 The First Cause of Action for violation of 47 U.S.C. § 605 (Unauthorized Publication or Use 4 of Communications) alleges that Defendants knowingly intercepted, received, published, divulged, 5 displayed and/or exhibited the Program for purposes of direct or indirect commercial advantage or 6 private financial gain. Plaintiff seeks $110,000 in statutory damages as well as attorneys’ fees and 7 costs. The Second Cause of Action for violation of 47 U.S.C. § 553 (Unauthorized Reception of 8 Cable Services) is based upon the same allegations. Plaintiff requests $60,000 in statutory damages, 9 as well as attorneys’ fees and costs. The Third Cause of Action for conversion alleges that 10 Defendants “tortuously obtained possession” of the Program and wrongfully converted it for their 11 own benefit. Plaintiff alleges that these acts were willful and intentionally designed to harm Plaintiff 12 and subject it to economic distress and financial loss. Plaintiff seeks compensatory, punitive and 13 exemplary damages, attorneys’ fees and costs. The Fourth Cause of Action alleges a violation of 14 Cal. Bus. & Prof. Code § 17200, et seq., for which Plaintiff seeks restitution, declaratory and 15 injunctive relief. 16 On March 25, 2009, Plaintiff filed proof of service indicating that Defendant Jose Villalobos, 17 Sr., was served on March 17, 2009. On the fifth attempt to serve at the residence address in Planada, 18 California, substituted service was made on “Jane Doe,” who refused to give her name and is listed 19 as a “co-occupant.” Jane Doe was instructed to deliver the documents to Defendant. Copies of the 20 summons and complaint were mailed to Defendant Jose Villalobos, Sr., on March 18, 2009. 21 22 23 On April 22, 2009, pursuant to Plaintiff’s request, the Clerk of the Court entered default as to Defendant Jose Villalobos, Sr. On May 22, 2009, Plaintiff filed a proof of service indicating that Defendant Jose Villalobos, 24 Jr., was served on May 12, 2009. On the third attempt to serve at the residence address in Fresno, 25 California, substituted service was made on “Jane Doe,” who refused to give her name and is listed 26 as a “co-occupant.” Jane Doe was instructed to deliver the documents to Defendant. Copies of the 27 summons and complaint were mailed to Defendant Jose Villalobos, Jr., on May 13, 2009. 28 2 1 2 3 4 On June 17, 2009, pursuant to Plaintiff’s request, the Clerk of the Court entered default as to Defendant Jose Villalobos, Jr. Plaintiff filed the instant motion for default judgment on July 23, 2009. Defendants have not filed an opposition or otherwise appeared in the action. 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 55(b)(2) provides: 7 (2) 8 9 10 11 12 13 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 incompetent 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. “Upon default, the well-pleaded allegations of a complaint relating to liability are taken as 14 true.” Dundee Cement Co. v. Howard Pipe & Concrete Products, Inc., 722 F.2d 1319, 1323 (7th Cir. 15 1983); TeleVideo Systems, Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). Thus, “[a]t the 16 time of entry of default, the facts alleged by the plaintiff in the complaint are deemed admitted.” 10 17 J. Moore, Moore's Federal Practice § 55.11 (3d ed. 2000). 18 DISCUSSION 19 20 21 Pursuant to the proofs of service filed with the Court, Defendant Jose Villalobos, Sr., was served on March 17, 2009, and Defendant Jose Villalobos, Jr., was served on May 12, 2009. Defendants are not infants or incompetent persons, and are not in the military service or 22 otherwise exempted under the Soldiers’ and Sailors’ Civil Relief Act of 1940. Declaration of 23 Thomas P. Riley, ¶ 3. 24 25 26 The Clerk entered default as to Defendant Jose Villalobos, Sr., on April 22, 2009. The Clerk entered default as to Defendant Jose Villalobos, Jr., on June 17, 2009. Having accepted the well pleaded allegations of the complaint as true, Plaintiff is entitled to 27 judgment based on Defendants’ violation of 47 U.S.C. § 605 and 47 U.S.C. § 553. Given the size of 28 3 1 the establishment at issue, its location both in a relatively urban city and adjacent to an even larger 2 urban city1 and the fact that the Program was shown on a large projection screen, the Court finds that 3 the violations likely had more than a minimal impact. Accordingly, the Court finds that $30,000 for 4 each federal statutory violation is an appropriate remedy. This amount both compensates Plaintiff 5 and serves as a deterrent to the acts at issue. 6 RECOMMENDATION 7 Based on the above, the Court RECOMMENDS that judgment be entered in this action 8 against Defendants and RECOMMENDS that damages in the total amount of $60,000.00 be fixed as 9 follows: 10 1) For violation of 47 U.S.C. section 605, the sum of $30,000; and 11 2) For violation of 47 U.S.C. section 553, the sum of $30,000. 12 This Findings and Recommendation is submitted to the Honorable Oliver W. Wanger, United 13 States District Court Judge, pursuant to the provisions of 28 U.S.C. § 631 (b)(1)(B) and Rule 305 of 14 the Local Rules of Practice for the United States District Court, Eastern District of California. 15 Within thirty days (plus three days if served by mail) after being served with a copy, any party may 16 serve on opposing counsel and file with the court written objections to such proposed findings and 17 recommendations. Such a document should be captioned "Objections to Magistrate Judge's Findings 18 and Recommendations." Replies to the objections shall be served and filed within ten (10) days 19 (plus three days if served by mail) after service of the objections. The Court will then review the 20 Magistrate Judge's ruling pursuant to 28 U.S.C. § 636 (b)(1). 21 22 23 24 IT IS SO ORDERED. Dated: 3b142a September 16, 2009 /s/ Dennis L. Beck UNITED STATES MAGISTRATE JUDGE 25 26 1 27 28 Scoreboards is located in Clovis, California, which has a population of over 95,000 people. Clovis, California is geographically adjacent to Fresno, California, which has a population of over 495,000 people. 4
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