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 Ferreyra, individually and doing business as Ferreyras Sports Bar. (Doc. No. 8). Marty Bishop, 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 Ferreyra operates a commercial establishment called "Ferreyras Sports Bar" in Stockton, California. By contract, plaintiff was granted the exclusive nationwide commercial distribution (closed-circuit) rights to "Fight to the Finish: The Bernard Hopkins v. Antonio Tarver World Light Heavyweight Championship Fight Program," which was telecast nationwide on Saturday, June 10, 2006. Defendant intercepted and exhibited the program in defendant's commercial establishment, Ferreyras Sports Bar, without authorization.
Although service of process was effected on defendant Ferreyra, the defendant failed to appear in this action. On July 29, 2009, plaintiff requested entry of default against defendant Ferreyra. (Doc. No. 6.) The Clerk entered default against the defendant on July 30, 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 Ferreyra.
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 ...