ORDER AND FINDINGS & RECOMMENDATIONS
This matter came before the court on September 11, 2009, for hearing of plaintiff's motion for default judgment against defendant Rodriguez, individually and doing business as Taqueria La Tia. (Doc. No. 18). Thomas P. Riley, Esq. appeared telephonically on behalf of plaintiff. No appearance was made by or for the defendant.
Upon hearing argument, the court took plaintiff's motion under submission. For the reasons set forth below, the undersigned recommends that the motion be granted and that default judgment be entered against the defaulted defendant.
Plaintiff J & J Sports Productions, Inc. is an international distributor of sports and entertainment programming. Defendant Rodriguez operates a commercial establishment called "Taqueria La Tia" in Sacramento, California. By contract, plaintiff purchased the domestic commercial exhibition rights to broadcast the "Julio Cesar Chavez v. Ivan Robinson Fight Program," which was telecast nationwide on Saturday, May 28, 2005. Defendant intercepted and exhibited the program in defendant's commercial establishment, Taqueria La Tia, without authorization.
Although service of process was effected on defendant Rodriguez, the defendant failed to appear in this action. On May 18, 2009, plaintiff requested entry of default against defendant Rodriguez. (Doc. No. 15.) The Clerk entered default against the defendant on May 18, 2009. (Doc. No. 17.) On July 31, 2009, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendant Rodriguez at an address in Elk Grove, California.
Federal Rule of Civil Procedure 55(b)(2) governs applications to the court for entry of default judgment. Upon entry of default, the complaint's factual allegations regarding liability are taken as true, while allegations regarding the amount of damages must be proven. Dundee Cement Co. v. Howard Pipe & Concrete Prods., 722 F.2d 1319, 1323 (7th Cir. 1983) (citing Pope v. United States, 323 U.S. 1 (1944); Geddes v. United Fin. Group, 559 F.2d 557 (9th Cir. 1977)); see also DirectTV v. Huynh, 503 F.3d 847, 851 (9th Cir. 2007); TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 917-18 (9th Cir. 1987).
Where damages are liquidated, i.e., capable of ascertainment from definite figures contained in documentary evidence or in detailed affidavits, judgment by default may be entered without a damages hearing. Dundee, 722 F.2d at 1323; see also Rule 55(b)(2). Unliquidated and punitive damages, however, require "proving up" at an evidentiary hearing or through other means. Dundee, 722 F.2d at 1323-24; see also James v. Frame, 6 F.3d 307, 310-11 (5th Cir. 1993).
Granting or denying default judgment is within the court's sound discretion. Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986); Aldabe v. Aldabe, 616 F.2d. 1089, 1092 (9th Cir. 1980). The court is free to consider a variety of factors in exercising its discretion. Eitel v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Among the factors that may be considered by the court are (1) the 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.
Eitel, 782 F.2d at 1471-72 (citing 6 Moore's Federal Practice ¶ 55-05, at 55-24 to 55-26).
I. Whether Default Judgment Should Be Entered
The factual allegations of plaintiff's complaint, taken as true pursuant to the entry of default against defendant Rodriguez, establish the following circumstances: (1) defendant Rodriguez is the owner, operator, licensee, permitee, person in charge, or person with control over the commercial establishment doing business as Taqueria La Tia in Sacramento, California; (2) by contract, plaintiff paid for and was granted exclusive nationwide television distribution rights to the "Julio Cesar Chavez v. Ivan Robinson Fight Program" that took place on May 28, 2005; (3) pursuant to the contract, plaintiff entered into sublicensing agreements with various commercial entities throughout North America by which it granted those entities limited sublicensing rights to exhibit the Chavez v. Robinson fight program to their patrons within their establishments; (4) as a commercial distributor of sporting events, plaintiff expended substantial monies marketing, advertising, promoting, administering, and transmitting the program to its customers; (5) with full knowledge that the program was not to be intercepted, received, and exhibited by unauthorized entities, defendant exhibited the Chavez v. Robinson program at the time of its transmission and did so willfully and for purposes of commercial or private gain; (6) defendant violated 47 U.S.C. § 605, et seq., which prohibits the unauthorized publication or use of communications; (7) defendant violated 47 U.S.C. § 553, et seq., which prohibits the unauthorized interception, exhibition, publication, and divulgence of programs; (8) by reason of defendant's violations of §§ 553 and 605, plaintiff has a private right of action pursuant to both statutes; (9) defendant also tortiously obtained possession of plaintiff's program and wrongfully converted it to defendant's own use and benefit; and (10) by reason of defendants' tortious conversion, plaintiff is entitled to compensatory and punitive damages. (Doc. No. 1 at 2-6.)
In its complaint, plaintiff prays for statutory damages of $100,000.00 for the willful violation of 47 U.S.C. § 605 and for recovery of all costs and reasonable attorney's fees. Plaintiff prays for statutory damages of $50,000.00 for the willful violation of 47 U.S.C. § 553 and for recovery of all costs and reasonable attorney's fees. Plaintiff seeks compensatory damages, reasonable attorney fees, ...