ORDER AND FINDINGS & RECOMMENDATIONS
This matter came before the court on September 25, 2009, for hearing of plaintiff's motion for default judgment against defendant Ann Maria Herrera, individually and doing business as Birrierria La Piedad. (Doc. No. 8). Marty Bishop, Esq. appeared telephonically on behalf of plaintiff. Defendant Herrera also appeared on her own behalf. The hearing was continued to provide the defendant with an opportunity to discuss settlement with plaintiff's counsel or to move to set aside the Clerk's entry of default, file written opposition to plaintiff's motion, and appear at the next hearing.
The matter came before the court again on November 13, 2009, for further hearing of plaintiff's motion. Thomas P. Riley, Esq. appeared telephonically for plaintiff. Even though defendant Herrera had been present in court when the new hearing date was set, no appearance was made by or on behalf of defendant at the hearing. Plaintiff's counsel indicated that defendant Herrera had not contacted him, and the docket reflected that plaintiff had not filed any motion for relief nor any opposition to plaintiff's motion. 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 defendant.
Plaintiff J & J Sports Productions, Inc. is an international distributor of sports and entertainment programming. Defendant Herrera operates a commercial establishment called "Birrierria La Piedad" in West Sacramento, California. By contract, plaintiff was granted the exclusive nationwide commercial distribution (closed-circuit) rights to "Danger Zone: The Oscar De La Hoya v. Ricardo Mayorga WBC Light Middleweight Championship Fight Program," which was telecast nationwide on Saturday, May 6, 2006. Defendant intercepted and exhibited the program in her commercial establishment without authorization to do so.
The record reflects that service of process was effected on defendant Herrera on June 22, 2009, by personal service.*fn1 (Doc. No. 5.) After defendant failed to file an answer, plaintiff filed a request for entry of default on July 14, 2009. (Doc. No. 6.) The Clerk entered default against the defendant on July 17, 2009. (Doc. No. 7.) On August 21, 2009, plaintiff filed its motion for default judgment with a proof of service reflecting service of the motion on defendant.
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. 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 Herrera, establish the following circumstances: (1) defendant Herrera is the owner, operator, licensee, permitee, person in charge, or person with control over the commercial establishment doing business as Birrierria La Piedad in West Sacramento, California; (2) by contract, plaintiff was granted exclusive nationwide television distribution rights to "Danger Zone: The Oscar De La Hoya v. Ricardo Mayorga WBC Light Middleweight Championship Fight Program," telecast nationwide on May 6, 2006; (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 De La Hoya v. Mayorga 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 De La Hoya v. Mayorga 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 ...