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J & J Sports Productions, Inc. v. Bachman

May 7, 2010

J & J SPORTS PRODUCTIONS, INC., PLAINTIFF,
v.
ANN MARIE BACHMAN AND GENEVA JONES, INDIVIDUALLY AND D/B/A THE BLUE MOON LOUNGE & SPORTS BAR, DEFENDANTS.



The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge

FINDINGS AND RECOMMENDATIONS

Presently before the court is plaintiff's application for default judgment.*fn1 This matter was submitted without oral argument on December 16, 2009. (Dkt. No. 12.) The undersigned has fully considered the briefs and record in this case and, for the reasons stated below, will recommend that plaintiff's application for default judgment be granted.

I. BACKGROUND*fn2

Plaintiff, a California corporation, is a closed-circuit distributor of sports and entertainment programming. (Pl.'s Compl. ¶ 6, Dkt. No. 1; Gagliardi Aff. ¶ 3, Dkt. No. 11.) Pursuant to a contract, plaintiff acquired exclusive commercial exhibition licensing rights to a televised boxing match entitled "The World Awaits: Oscar De La Hoya v. Floyd Mayweather, Jr., WBC Light Middleweight Championship Fight Program," which was broadcast via telecast on Saturday, May 5, 2007 (the "Program").*fn3 (Pl.'s Compl. ¶ 10; Gagliardi Aff. ¶ 3.) Thereafter, plaintiff entered into sublicensing agreements with various commercial entities across North America, through which it granted limited public exhibition rights to the entities for the benefit and entertainment of the patrons within the entities' respective establishments (e.g., hotels, racetracks, casinos, taverns, bars, restaurants, social clubs, etc.). (Pl.'s Compl. ¶ 11; Gagliardi Aff. ¶ 3.) Plaintiff made transmission of the Program available only to its customers, which were commercial entities that had paid plaintiff a commercial sublicense fee to broadcast the program. (Gagliardi Aff. ¶ 8; see also Pl.'s Compl. ¶ 11.) For example, to exhibit the Program in a commercial establishment that had a fire code occupancy of fifty persons, the commercial sublicense fee would have been $2,200. (Gagliardi Aff. ¶ 8 & Ex. 1.)

Defendants are alleged to be the owners, operators, or licensees of, and to do business as, The Blue Moon Lounge & Sports Bar ("The Blue Moon"). (Pl.'s Compl. ¶¶ 7-8; Garner Aff. at 2, 6, Dkt. No. 10, Doc. 10-4.) The Blue Moon is located at 1239 East Hammer Lane, Suite B, in Stockton, California. (Pl.'s Compl. ¶¶ 7-8; Garner Aff. at 6.) Defendants did not obtain a license to exhibit the Program from plaintiff.

On May 5, 2007, plaintiff's investigator, Jason Garner, entered The Blue Moon and observed the unauthorized broadcast of a portion of the Program on three, 32-inch televisions.*fn4 (Garner Aff. at 2.) Garner's affidavit approximates The Blue Moon's seating capacity at 50 people, and states that Garner observed approximately 25 patrons inside the bar room of The Blue Moon during the brief time he was inside the establishment. (Id.)

On May 4, 2009, plaintiff filed this action alleging that defendants unlawfully intercepted and intentionally broadcast the Program at The Blue Moon for the purpose of direct or indirect commercial advantage and/or private financial gain. (See generally Pl.'s Compl.) Plaintiff alleges four claims for relief, which are labeled as "Counts" in the complaint. Plaintiff's first claim for relief alleges that defendants engaged in the unauthorized publication or use of communications in violation of the Federal Communications Act of 1934, 47 U.S.C. §§ 605 et seq.*fn5 (Pl.'s Compl. ¶¶ 9-18.) Its second claim alleges that defendants engaged in the unauthorized interception, reception, divulgence, display, and exhibition of the Program at The Blue Moon in violation of 47 U.S.C. §§ 553 et seq.*fn6 (Pl.'s Compl. ¶¶ 19-23.) Plaintiff's third claim alleges a common law claim of conversion. (Id. ¶¶ 24-27.) Its fourth claim for relief alleges a violation of California Business and Professions Code §§ 17200 et seq. (Pl.'s Compl. ¶¶ 28-37.)

A declaration of service filed with the court demonstrates that on July 3, 2009, plaintiff, through a process server, attempted personal service on defendant Bachman at the address of The Blue Moon, 1239 East Hammer Lane, Suite B, Stockton, California 95210. (Dkt. No. 5.) The declaration states that process was left with Andrea Godearde, described as the "person in charge," with instructions to deliver the documents to defendant Bachman, and that a copy of the summons, complaint, and related documents were mailed to defendant Bachman on July 6, 2009.*fn7 (Id.) An additional declaration of service filed with the court indicates that defendant Jones was served in a similar manner on July 7, 2009. (See Dkt. No. 6.)

On August 11, 2009, the Clerk of this Court entered a certificate of entry of default against defendants. (Dkt. No. 8.) In entering such default, the Clerk of Court stated that it appeared from the record and papers on file in the action that defendants were duly served with process yet failed to appear, plead, or answer plaintiff's complaint within the time allowed by law. (Id.)

On December 7, 2009, plaintiff filed the application for default judgment that is presently before the court. (Dkt. No. 10.) The application seeks judgment on plaintiff's claims for violation of 47 U.S.C. § 605 and 47 U.S.C. § 553, and for common law conversion.*fn8 Plaintiff requests judgment in the amount of $112,000.*fn9 Plaintiff filed a proof of service indicating that it served defendants with the notice of the application for default judgment by mail. (Dkt. No. 10 at 4.) No response to this application is on record in this action.

II. LEGAL STANDARDS

Pursuant to Federal Rule of Civil Procedure 55, default may be entered against a party against whom a judgment for affirmative relief is sought who fails to plead or otherwise defend against the action. See Fed. R. Civ. P. 55(a). However, "[a] defendant's default does not automatically entitle the plaintiff to a court-ordered judgment." PepsiCo, Inc. v. Cal. Sec. Cans, 238 F. Supp. 2d 1172, 1174 (C.D. Cal. 2002) (citing Draper v. Coombs, 792 F.2d 915, 924-25 (9th Cir. 1986)); see Fed. R. Civ. P. 55(b) (governing the entry of default judgments). Instead, the decision to grant or deny an application for default judgment lies within the district court's sound discretion. Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980). In making this determination, the court may consider the following factors:

(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 v. McCool, 782 F.2d 1470, 1471-72 (9th Cir. 1986). Default judgments are ordinarily ...


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