J & J Sports Productions, Inc. v. Ocampo, No. 1:2016cv00559 - Document 18 (E.D. Cal. 2016)
Court Description: ORDER ADOPTING, with exception of the Damage Award 17 FINDINGS AND RECOMMENDATIONS ; ORDER DENYING IN PART and GRANTING IN PART Plaintiff's 16 Motion for Default Judgment ; Judgment to be entered In Favor of Plaintiff J&J Sports Productions, Inc. and Against Defendants Jose Luis Ocampo and Maricela Perez, individually and doing business as Ajua Cocina Mexicana, signed by Chief Judge Lawrence J. O'Neill on 11/21/2016. (Martin-Gill, S)
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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 J & J SPORTS PRODUCTIONS, INC., 12 Plaintiff, 13 v. 15 JOSE LUIS OCAMPO and MARCIELA PEREZ, individually and doing business as AJUA COCINA MEXICANA, 16 Defendants. 14 ) ) ) ) ) ) ) ) ) ) ) Case No.: 1:16-cv-00559 - LJO - JLT ORDER ADOPTING THE FINDINGS AND RECOMMENDATIONS IN PART AND GRANTING IN PART PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT (Docs. 16, 17) 17 18 19 20 21 22 23 24 25 26 27 J & J Sports Productions, Inc., seeks the entry of default judgment against Jose Luis Ocampo and Maricela Perez, individually and doing business as Ajua Cocina Mexicana. (Doc. 16) On October 26, 2016, the assigned magistrate judge found the factors articulated by the Ninth Circuit in Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986), weighed in favor of default judgment. (Doc. 17 at 37) Therefore, the magistrate judge recommended Plaintiff’s motion be granted. (Id. at 10) The magistrate judge specifically recommended imposition of statutory damages in the amount of $10,000. (Id. at 7-8) The parties were given fourteen days to file any objections to the recommendation that the action be dismissed. (Doc. 17 at 10) In addition, the parties were “advised that failure to file objections within the specified time may waive the right to appeal the District Court’s order.” (Id., 28 1 1 citing Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991); Wilkerson v. Wheeler, 772 F.3d 834, 834 (9th 2 Cir. 2014)). To date, no objections have been filed. 3 In accordance with the provisions of 28 U.S.C. § 636 (b)(1)(C) and Britt v. Simi Valley United 4 School Dist., 708 F.2d 452, 454 (9th Cir. 1983), this Court conducted a de novo review of the case. 5 Having carefully reviewed the file, the Court finds the Findings and Recommendations (“F&Rs”) are 6 supported by the record and proper analysis with the exception of the ultimate damages award. As the 7 F&Rs explained, the Court may consider a number of factors in determining the amount of damages, 8 including any promotional advertising by the defendant, the capacity of the establishment, the number 9 of patrons present at the time of the broadcast, the imposition of a cover charge, the number and size of 10 the crowd who viewed the broadcast, and whether a premium was charged on food or drink. See J & J 11 Sports Prods. Inc. v. Corona, No. 1:12-CV-01844-AWI, 2013 WL 3481697, at *5 (E.D. Cal. July 10, 12 2013) (citing Kingvision Pay–Per–View, Ltd. v. Backman, 102 F. Supp. 2d 1196, 1198 (N.D. Cal. 13 2000)). Here, there is no evidence that Ajua Cocina Mexicana advertised that it would broadcast the 14 event, charged a cover charge or otherwise charged a premium for food and drink. Plaintiff’s own 15 evidence reveals that the capacity of the restaurant was no more than 45 persons and that no more than 16 25 persons were present in the restaurant at any given time. Comparing this case to other similar cases, 17 e.g., J & J Sports Prods., Inc. v. Morales, No. 1:10-CV-01694-AWI, 2012 WL 761670, at *3 (E.D. Cal. 18 Mar. 8, 2012) (awarding $4,400 in statutory damages with no enhanced damages where bar that could 19 seat 60 persons displayed program licensable at $2,200 on three televisions to a crowd of no more than 20 fourteen patrons without cover charge or other premium charges); Joe Hand Promotions, Inc. v. Garcia, 21 No. CV F 11-2030 LJO, 2013 WL 5934343, at *6 (E.D. Cal. Nov. 5, 2013) (awarding $5,000 in 22 statutory damages where establishment that could seat up to 50 persons showed program licensable at 23 $900 on one television to a crowd of 25-30 persons, without charging a cover charge or other 24 premiums), the Court finds a statutory damages award in the amount of $5,000 is more appropriate. 25 Accordingly, IT IS HEREBY ORDERED: 26 1. 27 The Findings and Recommendations dated October 26, 2016 (Doc. 17) are ADOPTED WITH THE EXCEPTION OF THE DAMAGES AWARD; 28 2 1 2. Plaintiff’s application for default judgment (Doc. 16) is granted in part and denied in 2 part, as follows: 3 A. Plaintiff’s request for statutory damages for the violation of the Communications Act is GRANTED in the amount of $5,000; 4 5 B. Plaintiff’s request for enhanced damages is DENIED; and 6 C. Plaintiff’s request for damages for the tort of conversion is DENIED; 7 3. Judgment SHALL be entered in favor of Plaintiff J & J Sports Productions, Inc. and 8 against Defendants Jose Luis Ocampo and Maricela Perez, individually and doing 9 business as Ajua Cocina Mexicana; and 10 4. Plaintiff SHALL file any application for attorney’s fees pursuant to 47 U.S.C. § 605 no later than fourteen days from the entry of judgment. 11 12 13 14 15 IT IS SO ORDERED. Dated: /s/ Lawrence J. O’Neill _____ November 21, 2016 UNITED STATES CHIEF DISTRICT JUDGE 16 17 18 19 20 21 22 23 24 25 26 27 28 3
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