J & J Sports Productions, Inc. v. Plunkett, Jr. et al, No. 5:2015cv01609 - Document 21 (N.D. Cal. 2015)
Court Description: ORDER granting 17 Motion for Default Judgment. The hearing scheduled for 9/24/2015 is VACATED and the Clerk shall close this file. Signed by Judge Edward J. Davila on 9/21/2015. (ejdlc1S, COURT STAFF) (Filed on 9/21/2015)
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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 SAN JOSE DIVISION 7 8 J & J SPORTS PRODUCTIONS, INC., Case No. 5:15-cv-01609-EJD Plaintiff, 9 ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT v. 10 11 DAVID PLUNKETT, JR., et al., Re: Dkt. No. 17 United States District Court Northern District of California Defendants. 12 13 14 I. INTRODUCTION Plaintiff J & J Sports Productions, Inc. (“Plaintiff”) is an international distributor of sports 15 and entertainment programming and secured the domestic commercial exhibition rights to 16 broadcast and sublicense one particular program, namely “Manny Pacquiao vs. Timothy Bradley 17 II, WBO Welterweight Championship Fight Program” (the “Event”), which was telecast 18 nationwide on April 12, 2014. In this action, Plaintiff alleges that Defendants David Plunkett, Jr., 19 Omar Miller and Barbers Barbershops, LLC, each doing business as The Barbers (“Defendants”) 20 illegally intercepted and broadcasted the Event at their barbershop. 21 Federal jurisdiction arises pursuant to 28 U.S.C. § 1331 and personal jurisdiction arises 22 from service on Defendant in California. Burnham v. Super. Ct., 495 U.S. 604, 610-11 (1990). 23 Plaintiff filed the Complaint on April 8, 2015. Defendant failed to answer and default was entered 24 by the Clerk on June 19, 2015. See Docket Item No. 16. 25 Presently before the court is Plaintiff’s application for default judgment. See Docket Item 26 No. 17. The court finds this matter suitable for decision without oral argument pursuant to Civil 27 Local Rule 7-1(b). Accordingly, the hearing scheduled for September 24, 2015, will be vacated. 28 1 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 2 Plaintiff’s motion will be granted for the reasons explained below. II. BACKGROUND As noted, Plaintiff is in this business of marketing and licensing commercial exhibitions of 3 4 pay-per-view prizefight events. See Decl. of Joseph M. Gagliardi (“Gagliardi Decl.”), Docket 5 Item No. 18, at ¶ 4. Plaintiff was licensed to exhibit the Event at closed circuit locations located in 6 commercial establishments. Id. at ¶ 5. In order for commercial establishments to broadcast the 7 Event, owners were required to enter into a sublicense agreement with Plaintiff and pay a fee. Id. 8 at ¶ 8. The sublicense provided commercial establishments the ability to publicly exhibit the 9 Event. Id. at ¶ 7. On April 12, 2014, investigator Gary Gravelyn viewed a broadcast of the Event at 11 United States District Court Northern District of California 10 Defendants’ commercial establishment, The Barbers, located in San Jose, California. See Decl. of 12 Gary Gravelyn (“Gravelyn Decl.”), Docket Item No. 17. Based on Gravelyn’s observations, 13 Plaintiff alleges that Defendants displayed the Event without obtaining the proper license. See 14 Gagliardi Decl., at ¶ 9. According to Gravelyn, Defendants were displaying an undercard event during the time he 15 16 was at The Barbers. See Gravelyn Decl. Plaintiff also owned the rights to distribute that 17 particular preliminary event. See Gagliardi Decl., at ¶ 9. Gravelyn states that Defendants broadcasted the Event on six televisions and that the 18 19 establishment’s capacity was 100 persons. See Gravelyn Decl. Three separate headcounts 20 between 7:20 p.m. and 7:25 p.m. revealed the number of people in The Barbers fluctuated between 21 14 and 15. Id. 22 III. LEGAL STANDARD 23 Pursuant to Federal Rule of Civil Procedure 55(b), the court may enter default judgment 24 against a defendant who has failed to plead or otherwise defend an action. “The district court's 25 decision whether to enter default judgment is a discretionary one.” Aldabe v. Aldabe, 616 F.2d 26 1089, 1092 (9th Cir. 1980). 27 28 The Ninth Circuit has provided seven factors for consideration by the district court to 2 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 determine whether to enter a default judgment, known commonly as the Eitel factors. They are: 2 (1) the possibility of prejudice to the plaintiff; (2) the merits of plaintiff’s substantive claim; (3) 3 the sufficiency of the complaint; (4) the sum of money at stake in the action; (5) the possibility of 4 dispute concerning material facts; (6) whether default was due to excusable neglect and; (7) the 5 strong policy underlying the Federal Rules of Civil Procedure favoring decisions on the merits. 6 Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). When assessing these factors, all 7 factual allegations in the complaint are taken as true, except those with regard to damages. 8 Televideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987). 9 IV. DISCUSSION A. 11 United States District Court Northern District of California 10 This court has previously found the Eitel factors weigh in favor of default judgment under 12 13 The Eitel Factors nearly identical circumstances. The result here is the same. As to the first factor, denying Plaintiff’s application for default judgment would make little 14 sense since Defendants have refused to litigate this action. The court would hear and review the 15 same evidence it has before it now if Plaintiff was required to prove up its case at an uncontested 16 trial. For that reason, Plaintiff would be prejudiced in the form of further delay and expense if the 17 court were to deny the present application. This factor weighs in favor of default judgment. 18 As to the second and third factors, Plaintiff’s substantive claims appear meritorious and the 19 Complaint is sufficiently pled. Plaintiff has alleged that Defendants violated two sections of Title 20 47 and the alleged activities of Defendants appear to have violated at least one of those sections. 21 Additionally, Plaintiff has stated relevant laws pursuant to which the court may provide relief. 22 These factors also weigh in favor of default judgment. 23 As to the fourth factor, the sum of money at stake has yet to be determined but the 24 damages cannot exceed the amounts specified in 47 U.S.C. § 553 (for reasons more fully 25 explained below), and the maximum amount allowable for the tort of conversion. Accordingly, 26 statutory damages cannot exceed $10,000 and enhanced damages may not exceed $50,000. See 27 47 U.S.C. § 553(c)(3)(A)(ii), (B). Plaintiff is seeking $2,200 in damages for conversion, or the 28 3 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 amount Defendants would have been required to pay for the license. All things considered, the 2 relatively small sum of damages weighs in favor of default judgment. 3 As to the fifth factor, there is no dispute of material fact. Indications that there is a dispute 4 of material fact can weigh against entry of default judgment. See Eitel, 782 F.2d at 1471-72. But 5 here, Defendants have not disputed any of Plaintiff’s contentions since Defendants failed to 6 respond to either the Complaint or this motion, and the material facts pled in the Complaint are 7 supported or explained by affidavit or declaration. 8 9 For the sixth factor, it is unlikely that default was the result of excusable neglect. This action was filed nearly seven months ago and the docket reveals that Defendants were properly noticed of this action through substitute service at the establishment. In addition, Defendants were 11 United States District Court Northern District of California 10 served with a copy of instant application. Defendants failed to respond despite these notifications. 12 This factor, therefore, weighs in favor of default judgment. 13 Finally, the seventh factor weighs in favor of default judgment because “although federal 14 policy favors decisions on the merits, Rule 55(b)(2) permits entry of default judgment in situations 15 such as this where defendants refuse to litigate.” J & J Sports Prods, Inc. v. Concepcion, No. 10- 16 CV-05092, 2011 U.S. Dist. LEXIS 60607, at *5, 2011 WL 2220101 (N.D. Cal. June 7, 2011). 17 Thus, the general policy in favor of merits decisions is outweighed by the specific considerations 18 made in this case. As such, this factor does not prevent entry of default judgment here. 19 20 B. Calculation of Damages i. Statutory Violation 21 Plaintiff requests $10,000 in statutory damages as a result of an alleged violation of 47 22 U.S.C. § 605(e)(3)(B)(iii), which prohibits any person from receiving or transmitting “wire or 23 radio” signals except through authorized channels. 47 U.S.C. § 605(a). More specifically, the 24 statute “‘prohibits commercial establishments from intercepting and broadcasting to its patrons 25 satellite cable programming.’” J & J Sports Prods., Inc. v. Ro, No. 09-CV-02860, 2010 U.S. Dist. 26 LEXIS 21425, at *7, 2010 WL 668065 (N.D. Cal. Feb. 19, 2010) (quoting J & J Sports Prods., 27 Inc. v. Guzman, No. 08-CV-05469, 2009 U.S. Dist. LEXIS 32273, at *5, 2009 WL 1034218 (N.D. 28 4 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 Cal. Apr. 16, 2009)). The statute provides for statutory damages ranging from $1,000 to $10,000 2 for each violation. 47 U.S.C. § 605(e)(3)(C)(i)(II). 3 Plaintiff also mentions another potential basis for relief - 47 U.S.C. § 553(c)(3)(A)(ii) - but does not directly request damages under that statute. Plaintiff did, however, allege that 5 Defendants violated that statute in the Complaint. Section 553 proscribes “a person from 6 ‘intercepting or receiving or assisting in intercepting or receiving any communications service 7 offered over a cable system.’” Ro, 2010 U.S. Dist. LEXIS 21425, at *8 (quoting J & J Sports 8 Prods, Inc., v. Manzano, 2008 U.S. Dist. LEXIS 84931, at *5, 2008 WL 4542962 (N.D. Cal. Sept. 9 29, 2008)). In essence, § 553 prohibits “both illegally receiving cable programming and helping 10 others to illegally receive cable programming.” Manzano, 2008 U.S. Dist. LEXIS 84931, at *5. 11 United States District Court Northern District of California 4 Statutory damages under Section 553 range from $250 to a maximum of $10,000, “as the court 12 considers just.” 47 U.S.C. § 553(c)(3)(A)(ii). 13 Sections 605 and 553 are not coextensive because each section prohibits a distinct activity 14 of interception. Indeed, “[a] signal pirate violates section 553 if he intercepts a cable signal, he 15 violates section 605 if he intercepts a satellite broadcast.” Ro, 2010 U.S. Dist. LEXIS 21425, at 16 *8. “But he cannot violate both by a single act of interception.” Id. at *8. 17 Here, Plaintiff claims that Gravelyn was unable to determine the exact means used by 18 Defendants to intercept the Event. But in fact, Gravelyn’s declaration only leaves one option since 19 he definitively states that The Barbers did not have a satellite dish, but that a cable box was not 20 visible. Under these circumstances, this court has found § 553 a more appropriate basis for the 21 calculation of damages. See Joe Hand Promotions, Inc. v. Lorenzana, No. 5:13-cv-05925 EJD, 22 2014 U.S. Dist. LEXIS 110784, at *8-9, 2014 WL 3965097 (N.D. Cal. Aug. 11, 2014). Thus, on 23 this showing, the court concludes that Defendant must have intercepted the program via a cable 24 signal in violation of § 553 and not § 605. 25 The court will award Plaintiff $250 in statutory damages under § 553. This amount is 26 appropriate here, as it was in other cases, because Plaintiff did little if anything to develop the 27 factual record. Plaintiff simply cannot rely on a five-minute visit by the investigator to justify a 28 5 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 2 maximum damages award. As to Plaintiff's request under § 553(c)(3)(B), enhanced damages of no more than $50,000 3 may be warranted if the court finds “that the violation was committed willfully and for purposes of 4 commercial advantage or private financial gain.” The Ninth Circuit has not set forth controlling 5 factors for the determination of when enhanced damages are appropriate in this context, but 6 various factors specific to this unique line of cases have been considered by district courts. These 7 include the “use of cover charge, increase in food price during programming, presence of 8 advertisement, number of patrons, number of televisions used, and impact of the offender’s 9 conduct on the claimant.” Concepcion, 2011 U.S. Dist. LEXIS 60607, at *10. Enhanced damages have also been awarded when the defendant has violated sections 605 or 553 on previous 11 United States District Court Northern District of California 10 occasions. See J & J Sports Prods., Inc. v. Paniagua, No. 10-CV-05141-LHK, 2011 U.S. Dist. 12 LEXIS 33940, at *5-6, 2011 WL 996257 (N.D. Cal. Mar 21, 2011). 13 This case is somewhat dissimilar to others previously reviewed by this court because it 14 involves a barbershop rather than a restaurant. But that aside, what is similar is the lack of any 15 indication that Defendants were motivated by any particular commercial or private financial gain 16 when they broadcasted the Event. 17 Plaintiff is entitled to $2,200 in enhanced damages, which represents the value of the 18 commercial license to air the program. This amount properly accounts for the broadcast’s impact 19 on Plaintiff and is sufficient deter future conduct by Defendants and other similarly-situated 20 establishments. 21 22 ii. Conversion Plaintiff requests damages for the tort of conversion in the amount Defendant would have 23 been required to pay for a license, or $2,200. See Cal. Civ. Code § 3336. “The elements of 24 conversion are: 1) ownership of a right to possession of property; 2) wrongful dissolution of the 25 property right of another; and 3) damages.” Paniagua, 2011 U.S. Dist. LEXIS 33940, at *6. 26 Damages for conversion are “based on the value of the property at the time of the conversion.” Id. 27 28 Here, Plaintiff has shown that it owns the right to distribute the Event and has properly 6 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT 1 alleged the misappropriation of the right to distribute the program. As to damages, the “value of 2 the property” was the value of the commercial license, or $2,200. Accordingly, the court awards 3 Plaintiff $2,200 in damages for conversion. 4 V. ORDER 5 Based on the foregoing, Plaintiff’s application for default judgment is GRANTED. 6 Judgment shall be entered in favor of Plaintiff and against Defendant in the amount of $4,650.00 7 in total damages. 8 9 The hearing scheduled for September 24, 2015, is VACATED and the Clerk shall close this file. 10 United States District Court Northern District of California 11 12 13 14 IT IS SO ORDERED. Dated: September 21, 2015 ______________________________________ EDWARD J. DAVILA United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27 28 7 Case No.: 5:15-cv-01609-EJD ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT
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