J & J Sport Productions, Inc., v. Penalver, No. 5:2013cv05551 - Document 29 (N.D. Cal. 2014)
Court Description: ORDER GRANTING 21 PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT. (Also granting 28 Plaintiff's Motion for Costs and Attorneys' Fees). Signed by Judge Beth Labson Freeman on 6/27/2014. (blflc1, COURT STAFF) (Filed on 6/27/2014)
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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 J & J SPORTS PRODUCTIONS, INC., Case No. 5:13-cv-05551-BLF Plaintiff, 8 v. 9 10 LUIS RODRIGUEZ, Defendant. ORDER GRANTING PLAINTIFF'S APPLICATION FOR DEFAULT JUDGMENT [Re: ECF No. 21] United States District Court Northern District of California 11 12 13 14 15 I. INTRODUCTION Plaintiff J & J Sports Productions, Inc. sues Defendant Luis Rodriguez for the unlawful 16 17 interception and intentional exhibition of a boxing match for which Plaintiff owned the exclusive 18 television distribution rights. Plaintiff has filed an Application for Default Judgment against 19 Defendant. For the following reasons, the application is GRANTED. 20 II. 21 BACKGROUND Plaintiff is a sports and entertainment programming distributor that owned the exclusive 22 nationwide distribution rights to Manny Pacquiao v. Juan Manuel Marquez, IV Welterweight 23 Fight Program, which was telecast on December 8, 2012. (Am. Compl. ¶ 20, ECF 12) This 24 program included the main fight between Manny Pacquiao and Juan Manuel Marquez as well as 25 preliminary under-card bouts. (Id.) In order to broadcast the program, a commercial 26 establishment was required to enter into a sublicensing agreement with Plaintiff. (Id. ¶ 21) The 27 license authorized the establishment to display the program publicly. (Id.) 28 On the date of the telecast, investigator Gary Gravelyn observed the alleged unlawful 1 exhibition of the program at Los Jarritos, a Mexican restaurant. (Gravelyn Decl., ECF 21-3)1 In 2 his declaration, investigator Gravelyn reported seeing three fifty-inch television sets located 3 throughout the restaurant; it is not clear whether all three television sets were showing the boxing 4 match. (Id.) He noted that a cable box “was not” visible and that the restaurant “has” a satellite 5 dish. (Id.) No cover charge was required to enter the restaurant in order to watch the boxing 6 match, nor was the purchase of food or drink required. (See id.) Gravelyn reported the capacity of 7 the restaurant to be approximately 150 people. (Id.) During the four minutes he was there, 8 Gravelyn conducted three headcounts. (Id.) He counted “100+” people on the first headcount, 9 105 people on the second headcount, and 109 people on the final headcount. (Id.) On December 2, 2013, Plaintiff filed this action against Defendant Juan Penalver, the 10 United States District Court Northern District of California 11 named business owner of Los Jarritos. (Compl. ¶¶ 7-12, ECF 1) Plaintiff amended the Complaint 12 on March 3, 2014 in order to add Luis Rodriguez as a defendant. (Am. Compl. ¶¶ 13-18, ECF 12) 13 Based upon supplemental information provided by Plaintiff, the Court is satisfied that Luis 14 Rodriguez is the legal operator of Los Jarritos. (Supp. Br., ECF 27) Three weeks later, Plaintiff 15 voluntarily dismissed the action against Penalver. (Not. of Vol. Dismissal, ECF 16) Defendant 16 Rodriguez was served with the Amended Complaint on March 11, 2014 and his answer was due 17 on April 1, 2014. (Proof of Serv., ECF 15) Defendant Rodriguez did not file an answer and has 18 not appeared. On April 9, 2014, Plaintiff filed a Request for Entry of Default (Req. to Enter 19 Default, ECF 17), which was served upon Defendant. (Id. at 3) The clerk entered default on April 20 17, 2014. (Entry of Default, ECF 20) Plaintiff now seeks default judgment granting the following relief: (1) $10,000 in statutory 21 22 damages for violation of 47 U.S.C. § 605; (2) $100,000 in enhanced statutory damages for 23 violation of 47 U.S.C. § 605; (3) $4,200 in damages for conversion under California Civil Code § 24 3336; and (4) reasonable attorney’s fees and costs. 25 26 1 27 28 The Gravelyn Declaration, which is entitled “Declaration of Affiant,” is a two-page fill-in-theblank form that lacks paragraph numbers or other means for providing specific citations to the information contained therein. Thus, the Gravelyn Declaration is cited only generally throughout this order. 2 1 III. LEGAL STANDARD Federal Rule of Civil Procedure 55(b)(2) permits a court, following an entry of default, to 2 3 enter default judgment against a defendant. Upon an entry of default, all well-pled factual 4 allegations of the plaintiff’s complaint are taken as true, except as to the amount of damages. Fair 5 Hous. of Marin v. Combs, 285 F.3d 899, 906 (9th Cir. 2002). “The district court’s decision 6 whether to enter a default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 1089, 7 1092 (9th Cir. 1980). The Ninth Circuit considers seven factors, commonly known as the “Eitel factors,” in 8 9 determining whether default judgment is appropriate: 10 (1) [T]he possibility of prejudice to the plaintiff, (2) the merits of plaintiff’s substantive claim, (3) the sufficiency of the complaint, (4) the sum of money at stake in the action, (5) the possibility of a dispute concerning material facts, (6) whether the default was due to excusable neglect, and (7) the strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. United States District Court Northern District of California 11 12 13 14 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). 15 IV. 16 DISCUSSION Applying the Eitel factors set forth above, the Court finds as follows: if the Application 17 for Default Judgment were to be denied, Plaintiff would be left with no remedy because Defendant 18 has refused to litigate this action (factor 1). Taking all material facts pled in the Complaint as true, 19 Plaintiff has made out a sufficient claim (factor 3). See Fair Hous. of Marin, 285 F.3d at 906 20 (noting that upon entry of default, “well-pled allegations in the complaint regarding liability are 21 deemed true”). Plaintiff has adequately alleged Defendant’s violations of 47 U.S.C. §§ 553, 605, 22 and California Civil Code § 3336 (factor 2). Although the Court concludes that Plaintiff’s request 23 for maximum damages under 47 U.S.C. § 605 is disproportionate to the harm alleged, the Court 24 may award damages as it considers just (factor 4). See 47 U.S.C. § 605(e)(3)(C). There is no 25 dispute of material fact because Defendant failed to answer the Amended Complaint (factor 5). 26 Furthermore, there is no evidence that Defendant’s default was due to excusable neglect (factor 6). 27 Defendant was served with notice of this action as well as the Application for Default Judgment 28 (Pl.’s Appl. at 23, ECF 21-1), and Defendant has failed to defend the action or otherwise 3 1 communicate with the Court. Finally, “although federal policy favors decisions on the merits, 2 Rule 55(b)(2) permits entry of default judgment in situations such as this where defendants refuse 3 to litigate” (factor 7). J & J Sports Prods., Inc. v. Concepcion, No. 10-CV-05092, 2011 WL 4 2220101, at *2 (N.D. Cal. June 7, 2011). Accordingly, the Court GRANTS Plaintiff’s Application 5 for Default Judgment. 6 A. Statutory Damages 7 Violations of both 47 U.S.C. §§ 553 and 605 are alleged in the Amended Complaint. Generally, § 605 applies to interceptions of satellite transmissions and § 553 applies to 9 interceptions of cable transmissions. See, e.g., Cal. Satellite Sys. v. Seimon, 767 F.2d 1364, 1367- 10 68 (9th Cir. 1985). The Federal Communications Act, 47 U.S.C. § 605, prohibits any person from 11 United States District Court Northern District of California 8 receiving or transmitting “wire or radio” signals “except through authorized channels of 12 transmission or reception.” 47 U.S.C. § 605(a). An aggrieved party may recover a sum of not less 13 than $1,000 and not more than $10,000 for each violation of § 605(a), as the court considers just. 14 47 U.S.C. § 605(e)(3)(C)(i)(II). Under the Cable and Television Consumer Protection Act, 47 15 U.S.C. § 553, a person is prohibited from “intercept[ing] or receiv[ing] or assist[ing] in 16 intercepting or receiving any communications service offered over a cable system, unless 17 specifically authorized to do so.” 47 U.S.C. § 553(a)(1). Damages for each violation range from a 18 minimum of $250 to a maximum of $10,000. 47 U.S.C. § 553(c)(3)(A)(ii). Because §§ 605 and 19 553 prohibit two distinctly different activities, Plaintiff may not recover under both. See J & J 20 Sports Prods., Inc. v. Manzano, No. 08-CV-01872 RMW, 2008 WL 4542962, at *2 (N.D. Cal. 21 Sept. 29, 2008). 22 Plaintiff asserts that it “cannot determine the precise means that the Defendant used to 23 receive the program unlawfully” but that it “should not be prejudiced because it cannot isolate the 24 precise means of signal transmission.” (Pl.’s Appl. at 8, ECF 21-1) Plaintiff seeks damages under 25 § 605, arguing that it is reasonable to assume that Defendant intercepted the transmission by 26 satellite signal because the investigator observed a satellite dish and did not see a cable box during 27 his visit to Los Jarritos. (See Gravelyn Decl., ECF 21-3) While not conclusive, the investigator’s 28 observation renders Plaintiff’s allegation that the interception occurred by satellite transmission 4 1 sufficiently plausible for purposes of default judgment. See J & J Sports Prods., Inc. v. Dailey, 2 No. C 09-CV-04205 JW, 2010 U.S. Dist. LEXIS 143128, at *4 n.4 (N.D. Cal. Mar. 19, 2010) 3 (finding that the presence of a satellite dish was sufficient to justify damages under § 605); but see 4 J & J Sports Prods., Inc. v. Cardoze, No. C 09-05683 WHA, 2010 WL 2757106, at *3 (N.D. Cal. 5 July 9, 2010) (finding that seeing a satellite dish and not seeing a cable box was not sufficient 6 proof to justify damages under § 605). 7 Defendant did not charge a cover for patrons to enter the restaurant and watch the boxing 8 match, nor did he require the purchase of food or drink. (See Gravelyn Decl.) There were three 9 television sets in the restaurant, at least one of which displayed the program, and the restaurant was about two-thirds full while the investigator was present. (See id.) Plaintiff presents no 11 United States District Court Northern District of California 10 evidence that Defendant is a repeat offender. Given these circumstances, the Court finds 12 minimum statutory damages to be appropriate. Accordingly, Plaintiff is awarded $1,000 in 13 statutory damages under 47 U.S.C. § 605. 14 B. Enhanced Damages 15 Plaintiff also requests enhanced damages of $100,000, the maximum amount available 16 under 47 U.S.C. § 605(e)(3)(C)(ii). Enhanced damages are available when the violation was 17 committed willfully or for the purpose of commercial advantage or private financial gain. See 47 18 U.S.C. § 605(e)(3)(C)(ii). 19 The Ninth Circuit has not articulated a test for determining when enhanced damages are 20 appropriate. District courts consider a variety of factors including the “use of cover charge, 21 increase in food price during programming, presence of advertisement, number of patrons, number 22 of televisions used, and impact of the offender’s conduct on the claimant.” Concepcion, 2011 WL 23 2220101, at *4. Courts also have awarded enhanced damages when the defendant has violated the 24 statute repeatedly. See J & J Sports Prods., Inc. v. Paniagua, No. 10-CV-05141-LHK, 2011 WL 25 996257, at *2 (N.D. Cal. Mar. 21, 2011). 26 Although Plaintiff cites several out-of-district cases to support its request for maximum 27 enhanced damages, Plaintiff does not cite any binding precedent or identify any specific 28 circumstances that justify such a high award here. (See Pl.’s Appl. at 15-19, ECF 21-1) As 5 1 discussed above, Defendant did not charge a cover to patrons to enter the restaurant or require the 2 purchase of food or drink on the night of the boxing match. Defendant had three fifty-inch LCD 3 televisions, but it is not clear whether all three showed the boxing match. There were between 100 4 and 109 patrons present in the restaurant. Plaintiff provides no evidence of prior violations, 5 significant earnings by Defendant that night, or advertising of the exhibition of the boxing match 6 to draw a larger crowd. Accordingly, enhanced damages are not warranted. C. 8 Plaintiff also seeks $4,200 in damages for conversion under California Civil Code § 3336. 9 The Ninth Circuit has held that a claim for conversion has three elements: “ownership or right to 10 possession of property, wrongful disposition of the property right and damages.” G.S. Rasmussen 11 United States District Court Northern District of California 7 Conversion & Assocs., Inc. v. Kalitta Flying Serv., Inc., 958 F.2d 896, 906 (9th Cir. 1992). These elements 12 are satisfied because Plaintiff alleges ownership of the distribution rights to the program, 13 misappropriation of those rights by Defendant’s unlawful interception, and damages. (See Am. 14 Compl. ¶¶ 35-37, ECF 12) Damages for conversion are based on the value of the property at the 15 time of the conversion. According to an affidavit provided by J & J Sports Productions, 16 Defendant would have been required to pay $4,200 for a sublicensing agreement because the 17 commercial establishment had a maximum capacity of 150 persons. (Gagliardi Aff. ¶ 8, ECF 23) 18 Because Defendant did not enter into an agreement and pay the required fee, Plaintiff is entitled to 19 $4,200 in conversion damages. Attorney’s Fees and Costs 20 D. 21 The Court has reviewed Plaintiff’s request for attorney’s fees and costs. Reasonable 22 23 attorney’s fees and full costs are recoverable under 47 U.S.C. § 605(e)(3)(B)(iii). Plaintiff requests $2,233.75 in attorney’s fees. Plaintiff’s counsel has submitted a 24 declaration providing a detailed invoice for this case. While “‘reasonable attorney’s fee[s] . . . 25 should compensate the work of paralegals, as well as that of attorneys’” the fees should also take 26 into account the work of “secretaries, messengers, librarians, janitors, and others whose labor 27 contributes to work product for which an attorney bills her client.’” Trs. of Constr. Indus. & 28 Laborers Health & Welfare v. Redland Ins. Co., 460 F.3d 1253, 1256-57 (9th Cir. 2006) (quoting 6 1 Missouri v. Jenkins, 491 U.S. 274 (1989)). However, courts must consider the “billing custom in 2 the ‘relevant market.’” Id. at 1257 (citing Jenkins, 491 U.S. at 288). The practice of billing 3 separately for the work of a secretary or other clerical employee must be “‘the prevailing practice 4 in [the] given community.’” Id. (quoting Jenkins, 491 U.S. at 287). While Plaintiff requests 5 separate compensation for an administrative assistant, it has not presented any evidence showing 6 that it is the custom in the Northern District of California to bill such work separately. Thus, the 7 fees of an administrative assistant are not recoverable here. See, e.g., J & J Sports Prods., Inc. v. 8 Duong, No. 13-CV-02002-LHK, 2014 WL 1478498, at *4 (N.D. Cal. Apr. 14, 2014). The hourly 9 rates requested for the attorneys and paralegal are reasonable for similarly experienced professionals in the Northern District of California and their hours devoted to prosecuting this case 11 United States District Court Northern District of California 10 are reasonable in light of the straightforward boilerplate work performed. The Court grants 12 $1,577.50 in attorney’s fees. Plaintiff requests $1,135.00 in costs. Of this amount, $650.00 is attributed to 13 14 “investigative costs.” However, Civil Local Rule 54-3 provides recovery only of the following: 15 fees for filing and service of process, reporters’ transcripts, depositions, reproduction and 16 exemplification, witness expenses, fees for masters and receivers, costs on appeal, and costs on 17 bonds and security. Civ. L.R. 54-3(a)-(h). Other courts have not awarded such pre-filing 18 investigative costs to a prevailing party and, likewise, neither will this Court. See, e.g., Duong, 19 2014 WL 1478498, at *4; Joe Hand Promotions Inc. v. Piacente, No. C-10-3429 CW (JCS), 2011 20 WL 2111467, at *9 (N.D. Cal. Apr. 11, 2011). The $450 in court filing fees and $85 for service of 21 process are allowable and will be awarded to Plaintiff. The Court grants $535.00 in costs. Accordingly, the Court grants $2,112.50 in reasonable attorney’s fees and costs. 22 23 // 24 // 25 // 26 // 27 // 28 // 7 1 2 V. CONCLUSION For the reasons stated above, the Court GRANTS Plaintiff’s Application for Default 3 Judgment. Plaintiff is awarded $1,000 in statutory damages, $4,200 in damages for conversion, 4 and $2,112.50 in attorney’s fees and costs. Judgment shall be entered accordingly. 5 6 7 8 IT IS SO ORDERED. Dated: June 27, 2014 ______________________________________ BETH LABSON FREEMAN United States District Judge 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 8
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