G & G Closed Circuit Events, LLC v. Aguilar et al, No. 3:2018cv00465 - Document 13 (S.D. Cal. 2018)
Court Description: ORDER granting 10 Plaintiff's Motion for Default Judgment in the amount of 18,800.00. Signed by Judge Jeffrey T. Miller on 7/31/2018. (jpp)(sjt).
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G & G Closed Circuit Events, LLC v. Aguilar et al Doc. 13 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 G & G CLOSED CIRCUIT EVENTS, LLC, 15 16 17 ORDER GRANTING PLAINTIFF’S MOTION FOR DEFAULT JUDGMENT Plaintiff, 13 14 Case No.: 18cv465 JM (BGS) v. MELQUIS UMANA AGUILAR, a/k/a MELQUIS O. UMANA-AGUILAR individually, and d/b/a WINGS EMPIRE; and RIBSAN FOODS, INC., an unknown business entity d/b/a WINGS EMPIRE, 18 Defendants. 19 20 Plaintiff G & G Closed Circuit Events, LLC (“Plaintiff”) moves for entry of default 21 judgment against Defendants Melquis Umana Aguilar, a/k/a Melquis O. Umana-Aguilar, 22 individually and d/b/a Wings Empire and Ribsan Foods, Inc., an unknown business entity 23 d/b/a Wings Empire (collectively, “Defendants”). (Doc. No. 10.) Aside from filing a joint 24 motion for an extension of time to answer the complaint, (Doc. No. 5), Defendants have 25 not participated in this action. The court finds this matter appropriate for decision without 26 oral argument pursuant to Local Rule 7.1(d)(1) and, for the reasons set forth below, enters 27 default judgment against Defendants in the total amount of $18,800. 28 /// 1 18cv465 JM (BGS) Dockets.Justia.com 1 BACKGROUND 2 Plaintiff contracted for the exclusive, nationwide commercial distribution rights to 3 Saul Alvarez v. Julio Cesar Chavez, Jr. Super Middleweight Championship Right Program 4 and associated under-card (“the Program”), telecast on Saturday, May 6, 2017. (Doc. No. 1 5 (“Compl.”) ¶16.) 6 Program for a fee. (Compl. ¶ 17.) Defendants were not authorized to broadcast the 7 Program, but an investigator observed and documented, in a sworn affidavit, the exhibition 8 of the Program at Wings Empire. (Doc. No. 10-3.) The investigator observed five 9 televisions displaying the Program in an establishment with a capacity for approximately 10 30 people, with 7–15 people present. (Id.) The investigator rated the establishment as 11 “good,” and no cover charge was imposed to enter. (Id.) Plaintiff entered into agreements with sub-licensees to broadcast the 12 On March 2, 2018, Plaintiff filed its complaint in this action, alleging (1) violation 13 of 47 U.S.C. § 605, (2) violation of 47 U.S.C. § 553, (3) conversion, and (4) violation of 14 California Business and Professions Code § 17200, et seq. Plaintiff served Defendants 15 with the complaint and summons on March 21, 2018, and April 4, 2018. (See Doc. Nos. 16 4, 7.) On April 4, 2018, Defendants filed a joint motion for an extension of time to answer 17 the complaint. (Doc. No. 5.) The court granted the motion, giving Defendants until May 5, 18 2018, to answer or otherwise respond to the complaint. (Doc. No. 6.) Defendants never 19 responded to the complaint. Accordingly, the Clerk of Court entered default against 20 Defendants on June 13, 2018. (Doc. No. 9.) 21 22 23 Plaintiff now moves the court for default judgment against Defendants with respect to Plaintiff’s claims under 47 U.S.C. § 605 and for conversion. LEGAL STANDARDS 24 After the Clerk of Court enters default, the party entitled to judgment “must apply 25 to the court for a default judgment.” Fed. R. Civ. P. 55(b). The granting or denying of a 26 default judgment is within the court’s sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 27 1092 (9th Cir. 1980). “The general rule of law is that upon default the factual allegations 28 of the complaint, except those relating to the amount of damages, will be taken as true.” 2 18cv465 JM (BGS) 1 TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917–18 (9th Cir. 1987) (internal 2 quotations and citations omitted). As to damages, the court may hold hearings to determine 3 the proper amount, Fed. R. Civ. P. 55(b), or may evaluate other admissible evidence, 4 Amini Innovation Corp. v. KTY Int’l Mktg., 768 F. Supp. 2d 1049, 1054 (C.D. Cal. 2011) 5 (citing Rutter Group Practice Guide: Federal Civil Procedure Before Trial, Ch. 6 (2009)). 6 Where the party is entitled to reasonable attorneys’ fees, either by contract or statute, the 7 court will determine the amount to be awarded. James v. Frame, 6 F.3d 307, 311 (5th Cir. 8 1993). 9 The court considers the following factors in determining whether to grant a default 10 judgment: (1) the substantive merits of the plaintiff’s claim; (2) the sufficiency of the 11 complaint; (3) the amount of money at stake; (4) the possibility of prejudice to the plaintiff 12 if relief is denied; (5) the possibility of dispute as to any material facts in the case; (6) 13 whether excusable neglect caused the default, and (7) policy considerations militating in 14 favor of considering cases on their merits rather than resolving matters through default 15 judgment procedures. Eitel v. McCool, 782 F.2d 1470, 1471–72 (9th Cir. 1986). 16 DISCUSSION 17 I. 18 Regarding the first three Eitel factors, the allegations in Plaintiff’s complaint express 19 a claim for violation of 47 U.S.C. §§ 553, 605 and conversion. Title 47 U.S.C. §§ 553 and 20 605 prohibit the unauthorized receipt of satellite signals. 47 U.S.C. §§ 553(a), 605(a). 21 Conversion requires ownership or a right to possession of property, wrongful disposition 22 of that right, and damages. Tyrone Pac. Int’l, Inc. v. MV Eurychili, 658 F.2d 664, 666 (9th 23 Cir. 1981). Plaintiff’s complaint alleges that Plaintiff owned the rights to the Program and 24 that Defendants intercepted, received, and exhibited the Program. (Compl. ¶¶ 16, 19.) 25 Plaintiff alleges that it suffered financial loss as a result of Defendants’ conduct. Because 26 the court presumes these allegations to be true, TeleVideo Sys, 826 F.2d at 917–18, and 27 Plaintiff has offered a sworn affidavit from the investigator who observed and documented 28 Defendants’ violation, (Doc. No. 10-3), Plaintiff has sufficiently alleged meritorious claims Default Judgment 3 18cv465 JM (BGS) 1 against Defendants.1 2 Next, as to the fourth factor, Plaintiff will be prejudiced if default judgment is not 3 entered because Plaintiff has no other means to recover from Defendants. Thus, this factor 4 weighs in favor of granting Plaintiff’s motion. 5 Finally, with regard to the final three factors, there is unlikely to be a dispute as to 6 the material facts because Defendants have failed to defend themselves, and there is no 7 indication that such failure is due to excusable neglect. Thus, no policy considerations 8 weigh against resolving this matter by way of default judgment. 9 10 Therefore, the court grants Plaintiff’s motion for default judgment with respect to its claims under 47 U.S.C. § 605 and for conversion. 11 II. 12 Plaintiff seeks $6,600 in statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II) and 13 $20,000 in enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii). Additionally, Plaintiff 14 seeks $2,200 in conversion damages. 15 Damages A. 47 U.S.C. § 605 16 Under Section 605, the Court may award between $1,000 and $10,000 for each 17 violation as it considers just. 47 U.S.C. § 605(e)(3)(C)(i)(II). The statute also allows the 18 court to increase its award by no more than $100,000 when the violation has been 19 “committed willfully and for purposes of direct or indirect commercial advantage or private 20 financial gain.” 47 U.S.C. § 605(e)(3)(C)(ii). 21 Plaintiff seeks $6,600 in statutory damages, three times the commercial licensing 22 fee. Plaintiff argues that awarding only the licensing fee undervalues the Program and fails 23 to compensate Plaintiff adequately because the availability of unauthorized access to the 24 25 26 27 28 1 The court notes that Plaintiff has demonstrated that Defendant Melquis Umana Aguilar, a/k/a Melquis O. Umana-Aguilar, had “a right and ability to supervise the violations and . . . a strong financial interest in such activities” J & J Sports Prods., Inc. v. Mikhael, 2016 WL 2984191, at *2 (C.D. Cal. May 19, 2016), and thus may be held liable as an individual. (See Compl. ¶¶ 7–8; Doc. No. 11, Exs. 1–2.) 4 18cv465 JM (BGS) 1 Program reduces demand and depresses prices. 2 Plaintiff also asserts that enhanced damages are appropriate, and seeks $20,000. 3 Plaintiff’s President, Mr. Gagliardi, claims that Plaintiff has gone to great lengths to curb 4 the unauthorized interception of its programming because of the millions in lost revenue 5 resulting from piracy of broadcasts, and indicates that the state of the technology is such 6 that the programming cannot be mistakenly or accidentally intercepted. (Doc. No. 10-2 7 (“Gigliardi Aff.”) ¶¶ 5–6, 12–13.) Defendants’ default also serves as admission that they 8 willfully violated § 605 for financial gain. See Joe Hand Promotions, Inc. v. Sorondo, 2011 9 WL 4048786, at *3 (E.D. Cal. Sept. 9, 2011) (“By default, Defendants admitted to willfully 10 violating Section 605 for the purposes of commercial advantage.”). Additionally, the court 11 considers the number of televisions (five), the modest number of patrons present (7–15), 12 and that the establishment did not charge a cover fee. 13 14 As a result, the court awards Plaintiff $6,600 in statutory damages and $10,000 in enhanced damages. 15 B. Conversion 16 Plaintiff has presented the court with evidence that Defendants could have legally 17 purchased the right to broadcast the Program for $2,200. (Gigliardi Aff., Ex. 2 (listing 18 $2,200 as the rate to purchase the Program for an establishment with seating for 1–100).) 19 Accordingly, the court awards $2,200 in conversion damages. 20 III. 21 Under Section 605(e)(3)(B)(iii), the court “shall direct the recovery of full costs, 22 including awarding reasonable attorneys’ fees to an aggrieved party who prevails.” 23 Plaintiff requests the court grant it fourteen days from the entry of judgment to file a motion 24 for costs and attorneys’ fees. The court grants Plaintiff’s request. 25 /// 26 /// 27 /// Attorneys’ Fees 28 5 18cv465 JM (BGS) 1 CONCLUSION 2 For the foregoing reasons, the court grants Plaintiff’s motion for default judgment 3 with respect to Plaintiff’s claims under 47 U.S.C. § 605 and for conversion. Plaintiff is 4 entitled to a monetary judgment against Defendants as follows: 5 1. Statutory damages under 47 U.S.C. § 605(e)(3)(C)(i)(II) $6,600.00 6 2. Enhanced damages under 47 U.S.C. § 605(e)(3)(C)(ii) $10,000.00 7 3. Conversion damages $2,200.00 8 TOTAL: $18,800.00 9 Plaintiff has fourteen (14) days from entry of judgment to file a motion for costs and 10 attorneys’ fees. The court shall retain jurisdiction over this action for six months or until 11 the judgment is satisfied, and may issue further orders as necessary to enforce the 12 provisions of this order. 13 IT IS SO ORDERED. 14 15 16 DATED: July 31, 2018 JEFFREY T. MILLER United States District Judge 17 18 19 20 21 22 23 24 25 26 27 28 6 18cv465 JM (BGS)
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