J & J Sports Productions, Inc. v. Pagliaro et al, No. 1:2012cv01507 - Document 31 (E.D. Cal. 2014)

Court Description: MEMORANDUM DECISION and ORDER re Plaintiff's 28 Request for Damages and Plaintiff's Motion to Dismiss, signed by District Judge Lawrence J. O'Neill on 10/8/2014. (Marrujo, C)

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1 2 3 UNITED STATES DISTRICT COURT 4 FOR THE EASTERN DISTRICT OF CALIFORNIA 5 6 J&J SPORTS PRODUCTIONS, INC., Plaintiff, 7 10 MEMORANDUM DECISION AND ORDER RE PLAINTIFF S REQUEST FOR DAMAGES AND PLAINTIFF S MOTION TO DISMISS (Doc. 28) v. 8 9 1:12-CV-1507-LJO-SAB VINCENT SAMUEL PAGLIARO AND RENE ROSEANN PAGLIARO A/K/A RENE R. LARSON, dba Vinny s Place, Defendants. 11 12 I. FACTUAL AND PROCEDURAL BACKGROUND 13 On September 13, 2012, Plaintiff J&J Sports Productions, Inc. ( Plaintiff ) brought this case 14 against Defendants Vincent Samuel Pagliaro ( Defendant Pagliaro ) and Rene Roseann Pagliaro a/k/a 15 Rene R. Larson ( Defendant Larson 1) (collectively, Defendants ). Doc. 1 at 4-9. This case concerns 16 the televised broadcast of a boxing match on September 17, 2011 ( the Program ). Plaintiff was granted 17 the exclusive nationwide commercial distribution rights of the Program. Doc. 22 at 1. Defendants 18 unlawfully intercepted the transmission of the Program and exhibited it at their restaurant, Vinny s Place 19 ( Vinny s ), without Plaintiff s authorization. Id. There were 23 patrons present, though Vinny s 20 capacity is 94 persons. Doc. 20-3 at 2. Plaintiff alleged four causes of action against Defendants for (1) 21 violation of 47 U.S.C. § 605 ( § 605 ); (2) violation of 47 U.S.C. § 553; (3) conversion; and (4) 22 violation of California Business and Professions Code § 17200 et seq. Doc. 1 at 4-8. 23 On February 11, 2013, default was entered against Defendant Larson only. Doc. 12 at 1. Plaintiff 24 25 26 1 Defendant Rene Roseann Pagliaro is also known as Rene R. Larson. See Doc. 1 at 1. For clarity, the Court will refer to her as Defendant Larson. 1 1 filed motions for default judgment against Defendant Larson, see Docs. 17, 23, which the Court denied. 2 See Docs. 19, 27. 3 On April 23, 2014, Plaintiff moved for partial summary judgment on its first cause of action 4 (violation of § 605) and its third cause of action (conversion) against Defendant Pagliaro only. In its 5 motion for summary judgment, Plaintiff asserted it was entitled to damages under § 605 and for its 6 conversion claim, but the Court inadvertently failed to address damages. 7 On August 13, 2014, Plaintiff moved to dismiss as moot its remaining causes of action against 8 Defendant Pagliaro (second and fourth causes of action) under Fed. R. Civ. P. 15(a). Doc. 28 at 2. The 9 Court ordered Defendant Pagliaro to respond in writing to Plaintiff s motion to dismiss and its assertion 10 in its motion for summary judgment that it is entitled to damages on or before October 3, 2014. Doc. 30 11 at 2. To date, Defendant Pagliaro has not filed a response. 12 Pursuant to Local Rule 230(g), the Court rules on the papers without oral argument. For the 13 following reasons, the Court GRANTS Plaintiff s motion to dismiss. 14 II. DISCUSSION 15 A. Plaintiff s Motion to Dismiss. 16 Plaintiff moves to dismiss its two remaining claims against Defendant Pagliaro. [W]ithdrawals of 17 individual claims against a given defendant are governed by Fed. R. Civ. P. 15, which addresses 18 amendments to pleadings. Hells Canyon Preservation Council v. U.S. Forest Serv., 403 F.3d 683, 688 19 (9th Cir. 2005) (citing Ethridge v. Harbor House Restaurant, 861 F.2d 1389 (9th Cir. 1988)). Under 20 Fed. R. Civ. P. 15, a plaintiff may voluntarily dismiss some, but not all, of its claims. See Gen. Signal 21 Corp. v. MCI Telecomm ns Corp., 66 F.3d 1500, 1513 (9th Cir. 1995); Hells Canyon, 403 F.3d at 68822 90. 23 Because Defendant Pagliaro has not complied with the Court s order to respond in writing to 24 Plaintiff s motion to dismiss, he necessarily has not provided any reason for the Court to deny the 25 motion. The Court cannot discern any reason why Plaintiff s motion to dismiss should not be granted. 26 Accordingly, the Court GRANTS Plaintiff s motion to dismiss its second and fourth causes of action 2 1 against Defendant Pagliaro. 2 B. Plaintiff s Damages. 3 Because the Court granted Plaintiff s motion for summary judgment on its § 605 and conversion 4 claims, Plaintiff is entitled to damages for those claims. Under 47 U.S.C. § 605(e)(3)(C)(i)(II), Plaintiff 5 is entitled to statutory damages of not less than $1,000 or more than $10,000, as the court considers 6 just for each violation of § 605. The Court may award enhanced damages up to $100,000 for each 7 violation if the violation was willfully committed for commercial advantage or private financial gain. 47 8 U.S.C. § 605(e)(3)(C)(ii). 9 Defendants willfully committed one violation of § 605 on September 17, 2011, when they 10 broadcasted the Program at Vinny s without Plaintiff s authorization. See Doc. 22 at 3-4. Plaintiff 11 requests both statutory damages and enhanced damages under § 605. See Doc. 20 at 15. Plaintiff 12 requests that this court utilize its discretion to make an award that both sufficiently compensates 13 Plaintiff and functions as an effective deterrent. Id. 14 Other courts have found vastly different award amounts to be appropriate in similar circumstances. 15 See, e.g., J & J Sports Prods., Inc. v. Tilakamonkul, No. 1:10-cv-1705 AWI GSA, 2011 WL 2414550, at 16 *4 (E.D. Cal. June 10, 2011) (awarding maximum $10,000.00 statutory damages and $20,000.00 in 17 enhanced damages under § 605); J & J Sports Prods., Inc. v. Paolilli, No. 1:11-cv-680 LJO GSA, 2012 18 WL 87183, at *1 (E.D. Cal. Dec. 14, 2011) (awarding maximum $10,000.00 statutory damages and 19 $30,000.00 in enhanced damages under § 605); Joe Hand Promotions, Inc. v. Piacente, No. 10-cv-3429, 20 2011 WL 2111467, at *6 (N.D. Cal. Apr. 11, 2011) (awarding $1,000.00 in statutory damages and 21 $5,000.00 in enhanced damages under § 605); J & J Sports Prods. v. Ho, No. 10-cv-01883, 2010 WL 22 3912179, at *1 (N.D. Cal. Oct. 5, 2010) (awarding $1,600.00 in statutory damages and $10,000.00 in 23 enhanced damages under § 605). 24 The Court finds that an award of $2,500.00 in statutory damages under § 605(e)(3)(C)(i)(II) and an 25 award of $5,000.00 in enhanced damages under § 605(e)(3)(C)(ii) is appropriate here. 26 Plaintiff seeks $2,200.00 in conversion damages. See Doc. 20 at 19. Plaintiff asserts that a valid 3 1 licensing fee for Defendants to have legally broadcast the Program at Vinny s would have been 2 $2,200.00. Id. (citing Doc. 21 at ¶ 8); see also Doc. 21at 17. The Court finds that Plaintiff is entitled to 3 damages for conversion in the amount of $2,200.00. 4 C. Plaintiff s Attorney s Fees and Costs. 5 As the prevailing aggrieved party, Plaintiff is entitled to an award of reasonable attorney s fees and 6 costs under § 605(e)(3)(B)(iii) for the attorney s fees and costs associated with its § 605 claim. Plaintiff 7 requests to submit its motion for attorney s fees and costs within 14 days from the entry of judgment in 8 this case. Doc. 20 at 19. 9 The Court will not direct entry of judgment until after Plaintiff files a motion that will resolve the 10 remaining claims against Defendant Larson. See Fed. R. Civ. P. 54(b). Plaintiff shall file a motion that 11 resolves the remaining claims against Defendant Larson on or before October 24, 2014. If appropriate, 12 the Court will direct entry of judgment thereafter and will set a deadline for the filling of a motion for 13 attorney s fees and costs at that time. 14 III. CONCLUSION AND ORDER 15 For the foregoing reasons, the Court ORDERS that: 16 1. The October 17, 2014 hearing date on Plaintiff s motion to dismiss is VACATED. The Court 17 GRANTS Plaintiff s motion to dismiss (Doc. 28). Plaintiff s second and fourth causes of action 18 against Defendant Pagliaro are DISMISSED WITHOUT PREJUDICE. 19 2. Plaintiff is awarded a total of $9,700.00 based on the Court s grant of summary judgment on 20 Plaintiff s first and third causes of action in Plaintiff s favor and against Defendant Pagliaro. 21 22 3. Plaintiff shall file a motion to resolve the remaining claims against Defendant Larson on or before October 24, 2014. 23 24 IT IS SO ORDERED. 25 Dated: /s/ Lawrence J. O Neill October 8, 2014 UNITED STATES DISTRICT JUDGE 26 4

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